Coronavirus Economic Response Package (Payments and Benefits) Act 2020
In ForceCTH
Jurisdiction
Commonwealth
Act Number
37 of 2020
Collection
act
Plain English Summary
6/10 complexity
Authorises the Commonwealth to make time‑limited COVID‑19 payments to entities, with the Treasurer setting eligibility and rules and the Commissioner of Taxation administering payments, records, recovery and review. It creates repayment, interest and joint‑liability rules for overpayments, record‑keeping and production obligations, and limited Commissioner discretion to waive requirements — centralising how pandemic support is designed, delivered and enforced and creating compliance and financial incentives for recipients.
The Coronavirus Economic Response Package (Payments and Benefits) Act 2020 establishes a high-level legislative skeleton that authorises the making of detailed rules to deliver financial support to entities affected by the coronavirus known as COVID-19. Section 3 states the object of the Act in plain terms: to provide financial support directly or indirectly to entities that are directly or indirectly affected by COVID-19. Rather than prescribing every payment type in the primary legislation, the Act delegates substantial rule-making power to the Treasurer under s 20(1). The rules may be made by legislative instrument and can cover eligibility, amounts, timing, conditions, application processes and the establishment of schemes.
Section 7 is the engine room. Subsection 7(1) permits rules to create one or more kinds of payments by the Commonwealth to an entity for times occurring during the prescribed period (defined in s 6 as 1 March 2020 to 28 March 2021). Subsection 7(1A) extends this to payments whose primary purpose is improving the prospects of individuals getting employment in Australia or increasing workforce participation, covering the relevant period (7 October 2020 to 6 October 2022). Subsection 7(1B) further authorises payments for entities adversely affected by restrictions imposed under a public health order of a State or Territory, for the period 1 July 2021 to 31 December 2022. Each subsection expressly states that the rule-making power for payments and the power to establish a scheme do not limit one another.
The Act is deliberately machinery in nature. It does not itself appropriate funds; that occurs through separate appropriation mechanisms. Instead it supplies the legal authority for the Commissioner of Taxation (defined in s 6) to administer payments, recover overpayments, enforce record-keeping and apply anti-avoidance rules. Section 5 confers general administration of the Act on the Commissioner, which in turn imports the confidentiality obligations in Division 355 of Schedule 1 to the Taxation Administration Act 1953.
Current sections
Direct links to the current provisions in Coronavirus Economic Response Package (Payments and Benefits) Act 2020.
21
1
Short title
1 Short title
This Act is the Coronavirus Economic Response Package (Payments and Benefits) Act 2020.
2
Commencement
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
<table cellspacing="0" cellpadding="0" style="border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Provisions</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>Sections</span><span> </span><span>1 and 2 and anything in this Act not elsewhere covered by this table</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>9</span><span> </span><span>April 2020</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>2.</span><span> </span><span>Sections</span><span> </span><span>3 to 20</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The provisions do not commence at all unless Part</span><span> </span><span>1 of Schedule</span><span> </span><span>1 to the </span><span style="font-style:italic">Coronavirus Economic Response Package Omnibus (Measures No.</span><span style="font-style:italic"> </span><span style="font-style:italic">2) Act 2020</span><span> has commenced, in which case they commence immediately after the commencement of that Part.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>9</span><span> </span><span>April 2020</span></p></td></tr></tbody></table>
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3
Object of this Act
3 Object of this Act
The object of this Act is to provide financial support directly or indirectly to entities that are directly or indirectly affected by the Coronavirus known as COVID‑19.
4
Application to external Territories
4 Application to external Territories
This Act extends to every external Territory referred to in the definition of Australia (within the meaning of section 960‑505 of the Income Tax Assessment Act 1997).
5
General administration of this Act
5 General administration of this Act
The Commissioner has the general administration of this Act.
Note: An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.
6
Definitions
6 Definitions
In this Act:
approved form has the meaning given by section 388‑50 in Schedule 1 to the Taxation Administration Act 1953.
Australia has the same meaning as in section 960‑505 of the Income Tax Assessment Act 1997.
Commissioner means the Commissioner of Taxation.
Coronavirus economic response payment is the collective name for all of the kinds of payments provided for by the rules.
Note: Particular kinds of payments provided for by the rules may also have a particular name for that kind of payment.
entity has the meaning given by the Income Tax Assessment Act 1997.
general interest charge means the charge worked out under Part IIA of the Taxation Administration Act 1953.
income tax return has the meaning given by the Income Tax Assessment Act 1997.
income year has the meaning given by the Income Tax Assessment Act 1997.
prescribed period means the period between 1 March 2020 and 28 March 2021.
relevant period means the period between 7 October 2020 and 6 October 2022.
this Act includes the rules.
7
Coronavirus economic response payments
7 Coronavirus economic response payments
(1) The rules may make provision for and in relation to:
(a) one or more kinds of payments by the Commonwealth to an entity in respect of a time that occurs during the prescribed period; and
(b) the establishment of a scheme providing for matters relating to one or more of those payments, and matters relating to such a scheme.
Paragraphs (a) and (b) do not limit each other.
(1A) The rules may also make provision for and in relation to:
(a) one or more kinds of payments by the Commonwealth to an entity in respect of a time that occurs during the relevant period, being payments that are primarily for the purpose of:
(i) improving the prospects of individuals getting employment in Australia; or
(ii) increasing workforce participation in Australia; and
(b) the establishment of a scheme providing for matters relating to one or more of those payments, and matters relating to such a scheme.
Paragraphs (a) and (b) do not limit each other.
(1B) The rules may also make provision for and in relation to:
(a) one or more kinds of payments by the Commonwealth to an entity in respect of a time that occurs during the period beginning on 1 July 2021 and ending on 31 December 2022, being payments that are for the purpose of providing financial support to entities that are adversely affected by restrictions imposed under a public health order of a State or Territory to prevent or control the transmission of the coronavirus known as COVID‑19; and
(b) the establishment of a scheme providing for matters relating to one or more of those payments, and matters relating to such a scheme.
Paragraphs (a) and (b) do not limit each other.
(2) Without limiting subsections (1), (1A) and (1B), the rules may make provision for and in relation to the following matters:
(a) the eligibility criteria for a payment;
(b) if or how an application for a payment may or must be made;
(c) whether a payment is to be paid in instalments or as a lump sum;
(d) entitlement to a payment or an instalment of a payment;
(e) the amount of a payment or an instalment of a payment;
(f) when a payment or an instalment of a payment is payable;
(g) conditions applying to a payment or an instalment of a payment;
(h) providing information or notices;
(i) rights, obligations or liabilities of:
(i) an entity that is paid a payment; or
(ii) an entity that directly benefits from another entity being paid a payment; or
(iii) if the entitlement of an entity to a payment relates to a relationship existing between the entity and another entity—the other entity.
Paragraphs (a) to (i) do not limit each other.
8
Method of paying Coronavirus economic response payments
8 Method of paying Coronavirus economic response payments
(1) If, under the rules, the Commissioner is required to pay a Coronavirus economic response payment to an entity, the Commissioner must pay the payment to the credit of:
(a) if the entity has nominated a financial institution account as referred to in section 8AAZLH of the Taxation Administration Act 1953—that account; or
(b) if paragraph (a) does not apply—the financial institution account nominated by the entity in the entity’s most recent income tax return lodged for an income year.
(2) However, the Commissioner may direct that the payment be paid to the entity in a different way.
(3) If the entity has not nominated a financial institution account as mentioned in subsection (1) and the Commissioner has not directed that the payment be paid in a different way, the Commissioner is not obliged to pay the payment to the entity until the entity does so.
(4) If the Commissioner pays a payment to the credit of a financial institution account nominated by an entity, the Commissioner is taken to have paid the payment to the entity.
9
Overpayments etc.
9 Overpayments etc.
(1) This section applies if:
(a) the Commissioner pays an amount by way of a Coronavirus economic response payment to an entity; and
(b) either:
(i) the entity was not entitled to the payment; or
(ii) the amount paid is more than the correct amount of the entity’s payment.
(2) The entity is liable to repay the following amount to the Commonwealth:
(a) if the entity was not entitled to the payment—the whole of the amount referred to in paragraph (1)(a);
(b) if the amount paid is more than the correct amount of the entity’s payment—the amount by which the amount paid exceeds the correct amount.
(3) An amount that an entity is liable to repay under subsection (2) is due and payable on the day on which the Commissioner pays the amount referred to in paragraph (1)(a).
(4) The Commissioner may make a written determination that the entity is not liable to repay an amount under subsection (2), in which case the entity is not liable to repay the amount.
(5) A determination under subsection (4) is not a legislative instrument.
10
General interest charge on overpayment debts
10 General interest charge on overpayment debts
(1) If:
(a) an entity is liable under subsection 9(2) to repay an amount; and
(b) the whole or a part of the amount remains unpaid after the time by which the amount is due to be paid;
the entity is liable to pay general interest charge on the unpaid amount.
(2) An entity that is liable under this section to pay general interest charge on an unpaid amount is liable to pay the charge for each day in the period that:
(a) started at the beginning of the day on which the unpaid amount was due to be paid; and
(b) finishes at the end of the last day at the end of which any of the following remains unpaid:
(i) the unpaid amount;
(ii) general interest charge on any of the unpaid amount.
11
Joint and several liability for overpayment debts
11 Joint and several liability for overpayment debts
(1) This section applies if the Commissioner is satisfied that:
(a) an entity is liable under subsection 9(2) to repay an amount because of an overpayment of a Coronavirus economic response payment; and
(b) the overpayment occurred because the entity reasonably relied on a statement that was made by another entity in the approved form; and
(c) the statement by the other entity was false or misleading in a material particular, whether because of things in it or omitted from it; and
(d) the other entity did not take reasonable care in connection with making the statement; and
(e) the other entity directly benefitted from the entity being paid the Coronavirus economic response payment; and
(f) it is reasonable for the entity and the other entity to be jointly and severally liable to pay the amount and any general interest charge payable on the amount under section 10.
(2) This section also applies if the Commissioner is satisfied that:
(a) an entity is liable under subsection 9(2) to repay an amount because of an overpayment of a Coronavirus economic response payment; and
(b) the overpayment is due to fraud of another entity (whether or not the entity was also involved in that fraud); and
(c) it is reasonable for the entity and the other entity to be jointly and severally liable to pay the amount and any general interest charge payable on the amount under section 10.
(3) Despite sections 9 and 10, the entity and the other entity are jointly and severally liable to pay the amount and any general interest charge payable on the amount under section 10.
12
When the Commissioner is taken to have made a decision or given a notice
12 When the Commissioner is taken to have made a decision or given a notice
(1) The rules may provide for:
(a) circumstances in which a decision is taken to have been made by the Commissioner under this Act; and
(b) when the decision is taken to have been made.
(2) The rules may provide for:
(a) circumstances in which a notice of a decision made by the Commissioner under this Act is taken to have been given to an entity; and
(b) when the notice is taken to have been given to the entity.
(3) If:
(a) a decision relating to an entity is made by the Commissioner under this Act; and
(b) the rules do not require the Commissioner to give a notice of the decision to the entity; and
(c) rules are not made for the purposes of subsection (2) in relation to the decision; and
(d) Part IVC of the Taxation Administration Act 1953 applies to the decision;
then, for the purposes of that Part, the Commissioner is taken to have given a notice of the decision to the entity on the day the decision was made.
(4) Subsection (3) applies even if the Commissioner in fact gives the entity a notice of the decision on a different day.
13
Review of the Commissioner’s decision
13 Review of the Commissioner’s decision
(1) An entity who is dissatisfied with a decision covered by subsection (2) may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953.
(2) This subsection covers the following decisions of the Commissioner under this Act:
(a) a decision that the entity is not entitled to a Coronavirus economic response payment for a period;
(b) a decision that the entity is entitled to a Coronavirus economic response payment for a period of a particular amount;
(c) a decision not to make a determination under subsection 9(4) (about liability of the entity for an overpayment);
(d) a decision under subsection 11(1) or (2) that the entity is jointly and severally liable for an amount;
(e) a decision under subsection 11(1) or (2) that another entity is not jointly and severally liable for an amount;
(f) a decision not to make a determination under subsection 14(3) (about exempting the entity from the record keeping requirements).
14
No entitlement to payment unless record keeping requirements are met
14 No entitlement to payment unless record keeping requirements are met
No entitlement if non‑ compliance with requirements
(1) An entity is not entitled, and is taken never to have been entitled, to a Coronavirus economic response payment in respect of a period unless the entity has complied with:
(a) the pre‑payment record keeping requirements set out in section 15 that apply to the payment for the period; and
(b) the post‑payment record keeping requirements set out in section 16 that apply to the payment for the period.
Exemption from requirements
(2) However, subsection (1) does not apply to an entity in relation to the payment in respect of the period if a determination under subsection (3) provides that the requirements in section 15 and 16 do not apply to the payment in respect of the period.
(3) The Commissioner may make a written determination that an entity is not required to comply with the record keeping requirements set out in sections 15 and 16 in relation to a specified Coronavirus economic response payment in respect of a period. The determination may take effect from a time before the determination is made.
(4) A determination under subsection (3) is not a legislative instrument.
Undertakings as to compliance
(5) If an entity gives the Commissioner a statement in the approved form to the effect that the entity undertakes to comply with the record keeping requirements set out in sections 15 and 16, then the Commissioner may assume that the entity will comply with those requirements for the purposes of making a decision under this Act about entitlement to, or the amount of, the payment.
(6) However, if:
(a) the Commissioner makes a decision under this Act that the entity is entitled to the payment; and
(b) the entity does not comply with the requirements referred to in subsection (5);
then:
(c) the Commissioner may revoke the decision; and
(d) if the Commissioner revokes the decision under paragraph (c)—the entity is not entitled, and is taken never to have been entitled, to the payment.
15
Pre‑payment record keeping requirements
15 Pre‑payment record keeping requirements
Scope of this section
(1) This section sets out the pre‑payment record keeping requirements that apply to an entity in relation to a Coronavirus economic response payment in respect of a period.
Records to be kept
(2) The entity must keep records that enable the entity to substantiate any information that the entity provided to the Commissioner in relation to the payment before the entity was paid the payment.
Note: Section 16 provides that the entity must continue to retain those records for 5 years after the entity is paid the payment.
(3) The records must be:
(a) in English; or
(b) readily accessible, and easily convertible into English.
When entity is taken to have met the record keeping requirements
(4) The entity is taken to have met the requirement set out in subsection (2) if the entity keeps records of a kind, and in a manner, specified in a written determination made by the Commissioner under subsection (5).
Note: Sections 8L, 8Q and 8T of the Taxation Administration Act 1953 deal with keeping records incorrectly.
(5) For the purposes of subsection (4), the Commissioner may, by legislative instrument, specify:
(a) the kinds of records that an entity must keep for the purposes of that subsection; and
(b) the manner in which those records must be kept.
16
Post‑payment record keeping requirements
16 Post‑payment record keeping requirements
Scope of this section
(1) This section sets out the post‑payment record keeping requirements that apply to an entity in relation to a Coronavirus economic response payment in respect of a period.
Records to be kept
(2) If the rules require the entity to keep records that substantiate any information that the entity provides to the Commissioner in relation to the payment after the entity was paid the payment, then the entity must keep those records.
(3) The records must be:
(a) in English; or
(b) readily accessible, and easily convertible into English.
When entity is taken to have met the record keeping requirements
(4) The entity is taken to have met the requirement set out in subsection (2) if the entity keeps records of a kind, and in a manner, specified in a written determination made by the Commissioner under subsection (5).
Note: Sections 8L, 8Q and 8T of the Taxation Administration Act 1953 deal with keeping records incorrectly.
(5) For the purposes of subsection (4), the Commissioner may, by legislative instrument, specify:
(a) the kinds of records that an entity must keep for the purposes of that subsection; and
(b) the manner in which those records must be kept.
Period for retaining records
(6) The entity must retain the records for the period of 5 years after the payment was paid.
(7) The entity must continue to retain, for the period of 5 years after the payment was made, the records that the pre‑payment record keeping requirements set out in section 15 required the entity to retain.
(8) Despite subsections (6) and (7), it is not necessary for the entity to continue to retain records if the Commissioner notifies the entity that it does not need to retain them.
17
Commissioner may require records to be produced
17 Commissioner may require records to be produced
(1) If the Commissioner gives the entity a written notice telling the entity to produce records that subsection 16(6) or (7) requires the entity to retain, then the entity must comply with the notice.
(2) A notice under subsection (1) must give the entity 28 days or more to comply, starting on the day after the notice is given. The Commissioner may allow the entity more time to comply with the notice.
(3) Despite section 8C of the Taxation Administration Act 1953, the entity does not commit an offence merely by not complying with a notice under subsection (1) of this section.
Note: Sections 8L, 8Q and 8T of the Taxation Administration Act 1953 deal with keeping records incorrectly.
18
Records that are lost or destroyed
18 Records that are lost or destroyed
(1) This section applies to an entity if:
(a) section 15 or 16 requires the entity to retain a particular record; and
(b) the record is lost or destroyed.
(2) If the entity has a complete copy of the record that is lost or destroyed, it is treated as the original from the time of the loss or destruction.
(3) If the entity does not have such a copy, but the Commissioner is satisfied that the entity took reasonable precautions to prevent the loss or destruction, the entity’s entitlement to a Coronavirus economic response payment is not affected by the entity’s failure to retain or produce the original record.
(4) This section has effect despite anything in section 14, 15, 16 or 17.
19
Contrived schemes
19 Contrived schemes
(1) If the Commissioner is satisfied that:
(a) one or more entities (a participant) entered into or carried out a scheme (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999); and
(b) it would be concluded (having regard to the matters in subsection (3)) that any of the participants entered into or carried out the scheme, or any part of the scheme, for the sole or dominant purpose of achieving either of the following:
(i) making an entity (the recipient) entitled to a Coronavirus economic response payment in respect of a period;
(ii) increasing the amount of the Coronavirus economic response payment to which an entity (also the recipient) is entitled for the period;
(whether or not any of the participants is the recipient and whether or not any of them carried out the scheme or any part of the scheme); and
(c) the scheme or part of the scheme has achieved, or apart from this section would achieve, that purpose;
then the Commissioner may determine that this Act has, and is taken always to have had, effect as if:
(d) the recipient never became entitled to the payment; or
(e) the amount of the payment was always the amount specified by the Commissioner in the determination.
(2) A determination under subsection (1) has effect accordingly.
(3) For the purposes of subsection (1), the matters are as follows:
(a) the manner in which the scheme was entered into or carried out;
(b) the form and substance of the scheme;
(c) the time at which the scheme was entered into and the length of the period during which the scheme was carried out;
(d) the result in relation to the operation of this Act that, but for this section, would be achieved by the scheme;
(e) any change in the financial position of the recipient that has resulted, will result, or may reasonably be expected to result, from the scheme;
(f) any change in the financial position of any entity that has, or has had, any connection (whether of a business, family or other nature) with the recipient, being a change that has resulted, will result or may reasonably be expected to result, from the scheme;
(g) any other consequence for the recipient, or for any person referred to in paragraph (f), of the scheme having been entered into or carried out;
(h) the nature of any connection (whether of a business, family or other nature) between the recipient and any person referred to in paragraph (f).
(4) This section applies whether or not the scheme has been or is entered into or carried out in Australia or outside Australia, or partly in Australia and partly outside Australia.
(5) A determination under subsection (1) is not a legislative instrument.
20
Rules
20 Rules
Power to make rules
(1) The Treasurer may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Act to be prescribed by the rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
Rules may make different provision
(3) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, the rules may make different provision in relation to:
(a) different kinds of entities; or
(b) different kinds of payments.
Rules may subdelegate to the Commissioner
(4) The rules may make provision in relation to a matter by conferring a power on the Commissioner to make:
(a) an instrument of a legislative or administrative character; or
(b) a decision of an administrative character.
Rules may incorporate matters in other instruments
(5) Despite subsection 14(2) of the Legislation Act 2003, the rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.
Rules may prescribe matters for the purposes of other laws
(6) The rules may prescribe matters that are required or permitted by another law of the Commonwealth to be prescribed by the rules.
Rules not limited because certain topics dealt with in this Act
(7) Sections 8 to 11 and 13 to 19 do not limit the rules that may be made.
21
Constitutional basis for this Act
21 Constitutional basis for this Act
Principal constitutional basis
(1) This Act relies on the legislative power that the Parliament has under the Constitution with respect to matters that are peculiarly adapted to the government of a nation and cannot otherwise be carried on for the benefit of the nation.
Additional constitutional basis
(2) This Act also relies on all other legislative powers that the Parliament has under the Constitution relevant to a kind of Coronavirus economic response payment.
Source text: opening excerpt
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
1 Short title
1 Short title
This Act is the Coronavirus Economic Response Package (Payments and Benefits) Act 2020.
2 Commencement
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
<table cellspacing="0" cellpadding="0" style="border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Provisions</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>Sections</span><span> </span><span>1 and 2 and anything in this Act not elsewhere covered by this table</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>9</span><span> </span><span>April 2020</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>2.</span><span> </span><span>Sections</span><span> </span><span>3 to 20</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The provisions do not commence at all unless Part</span><span> </span><span>1 of Schedule</span><span> </span><span>1 to the </span><span style="font-style:italic">Coronavirus Economic Response Package Omnibus (Measures No.</span><span style="font-style:italic"> </span><span style="font-style:italic">2) Act 2020</span><span> has commenced, in which case they commence immediately after the commencement of that Part.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>9</span><span> </span><span>April 2020</span></p></td></tr></tbody></table>
Payment mechanics are addressed in s 8. Where the rules require the Commissioner to pay a Coronavirus economic response payment, it must generally be paid into a nominated financial institution account (either one nominated under s 8AAZLH of the Taxation Administration Act 1953 or the account shown in the entity’s most recent income tax return). The Commissioner may direct an alternative payment method. If no account is nominated and no alternative direction is given, the Commissioner is not obliged to make payment until an account is provided. Payment to the nominated account is taken to be payment to the entity.
Overpayment recovery is dealt with in a cascading suite of provisions. Section 9(1) applies where the Commissioner has paid an amount by way of a Coronavirus economic response payment and the recipient was not entitled to it or received more than the correct amount. The entity is then liable to repay the whole or the excess (s 9(2)). The amount is due and payable on the day the Commissioner made the original payment (s 9(3)). The Commissioner may, by written determination, decide that the entity is not liable to repay; such a determination is not a legislative instrument (s 9(4)–(5)).
General interest charge (defined in s 6 by reference to Part IIA of the Taxation Administration Act 1953) accrues on unpaid repayment amounts under s 10. The charge runs from the day the repayment was due until the day the debt and all accrued charge is paid in full. Section 11 adds a joint and several liability regime. It applies where the Commissioner is satisfied that an overpayment arose because the recipient reasonably relied on a false or misleading statement made in the approved form by another entity who did not take reasonable care, who directly benefited from the payment, and where it is reasonable for both to be jointly liable. It also applies where the overpayment resulted from fraud by another entity. In those circumstances both parties are jointly and severally liable for the repayment and any general interest charge.
Decision-making and review are streamlined. Section 12 allows the rules to deem decisions to have been made or notices to have been given on particular days. Where Part IVC of the Taxation Administration Act 1953 applies and no notice is required or deemed, the Commissioner is taken to have given notice on the day the decision was made. Section 13 gives an entity dissatisfied with any of six listed categories of decision (including entitlement decisions, amount decisions, refusal to remit an overpayment liability, and joint-liability decisions) the right to object under Part IVC.
Record-keeping is elevated to a condition of entitlement. Section 14(1) provides that an entity is not entitled, and is taken never to have been entitled, to a payment unless it has complied with both the pre-payment record-keeping requirements in s 15 and the post-payment requirements in s 16. The Commissioner may exempt an entity by written determination (which can operate retrospectively) and such a determination is not a legislative instrument (s 14(3)–(4)). An undertaking in the approved form to keep records allows the Commissioner to assume compliance when deciding entitlement, but if the undertaking is breached the Commissioner may revoke the decision and the entity is taken never to have been entitled (s 14(5)–(6)).
Section 15 requires an entity to keep, before payment, records that substantiate any information provided to the Commissioner in relation to the payment. Those records must be in English or readily convertible into English. The Commissioner may, by legislative instrument, specify kinds of records and the manner in which they must be kept; compliance with such an instrument is taken to satisfy the obligation. Section 16 imposes parallel post-payment obligations, adds a mandatory five-year retention period after payment (ss 16(6)–(7)), and allows the Commissioner to notify an entity that records no longer need to be kept. Both pre- and post-payment records can be the subject of a production notice under s 17, which must allow at least 28 days for compliance. Failure to comply with a s 17 notice does not trigger an offence under s 8C of the Taxation Administration Act 1953, but the general record-keeping offence and penalty provisions in ss 8L, 8Q and 8T of that Act continue to apply.
Section 18 protects entities from loss of entitlement where required records are lost or destroyed. If a complete copy exists it is treated as the original. If no copy exists but the Commissioner is satisfied reasonable precautions were taken, entitlement is not affected. This protection operates despite anything in ss 14–17.
Anti-avoidance is addressed in s 19. If the Commissioner is satisfied that one or more participants entered into or carried out a scheme (using the definition in the A New Tax System (Goods and Services Tax) Act 1999) for the sole or dominant purpose of making an entity entitled to a payment or increasing the amount of a payment, the Commissioner may determine that the Act has, and is taken always to have had, effect as if the recipient never became entitled or the amount was always the lower figure specified in the determination. The Commissioner must have regard to eight enumerated matters when deciding purpose. The provision applies regardless of whether the scheme was carried out inside or outside Australia. A determination is not a legislative instrument.
Section 20 contains the rule-making power and important limitations. Rules cannot create offences or civil penalties, authorise arrest, detention, entry, search or seizure, impose a tax, set an appropriation amount, or directly amend the text of the Act. Rules may differentiate between different kinds of entities or payments, sub-delegate to the Commissioner, incorporate external instruments as in force from time to time (despite the usual rule in s 14(2) of the Legislation Act 2003), and prescribe matters for other Commonwealth laws. Sections 8–11 and 13–19 do not limit the breadth of the rule-making power.
Section 21 supplies the constitutional foundation, relying primarily on the nationhood power and, additionally, on all other relevant heads of power for each kind of payment. Section 4 extends the Act to every external Territory referred to in the definition of Australia in s 960-505 of the Income Tax Assessment Act 1997. Section 6 supplies definitions that tie the Act into the broader tax legislation ecosystem, including the critical concept that “this Act includes the rules”.
Taken together, the statute is a delegated-legislation vehicle that balances speed of response with post-payment integrity, record-keeping discipline and anti-avoidance protection. Its substantive operation is almost entirely contained in the rules it authorises; the primary Act supplies the machinery, the recovery rules, the review rights and the safeguards.
Who it affects
The Act uses the broad definition of “entity” taken from the Income Tax Assessment Act 1997 (s 6). This encompasses individuals, companies, trusts, partnerships, superannuation funds, government agencies and any other person or group that can receive a payment under the rules. Because the object in s 3 refers to entities “directly or indirectly affected” by COVID-19, the reach is not limited to businesses that suffered revenue loss; it can extend to entities that indirectly benefit when another entity receives a payment (see s 7(2)(i)(ii)–(iii)).
The Commissioner of Taxation is the central administrator (s 5) and therefore every entity that interacts with the Commissioner in applying for, receiving, reporting on or repaying a Coronavirus economic response payment is affected. Entities that make statements in the approved form on which another entity relies can be exposed to joint and several liability under s 11 if those statements are false or misleading and reasonable care was not taken.
Financial institutions holding nominated accounts are indirectly affected because payment to the credit of such an account is taken to be payment to the entity (s 8(4)). Entities that enter into or carry out schemes caught by s 19 are affected even if they are not themselves the recipient of the payment.
Because the Act extends to external Territories (s 4), entities operating in those territories fall within its scope. The record-keeping obligations in ss 14–18 bind any entity that wishes to establish or maintain entitlement, while the overpayment rules in ss 9–11 can create liabilities for entities that received money to which they were not entitled or received too much.
The joint-liability provisions in s 11 can bring related entities (business, family or other connections are expressly listed in s 19(3)(h)) into the net even if they were not the original recipient. Fraud provisions in s 11(2) can capture participants who were not themselves recipients. In short, the Act casts a wide net: any entity that applies for, receives, benefits from, provides information for, or participates in a scheme relating to a Coronavirus economic response payment is potentially affected.
Key duties and rights
Entities that wish to receive payments have the right to have the Commissioner apply the rules made under s 7. If the rules create an entitlement, the entity has a right to payment into a nominated account (s 8) and a right to object under Part IVC of the Taxation Administration Act 1953 against the six categories of decision listed in s 13(2).
The correlative duties are substantial. The paramount duty is to comply with the pre-payment record-keeping requirements in s 15 and the post-payment requirements in s 16. Compliance with these requirements is a condition precedent to entitlement; non-compliance means the entity “is not entitled, and is taken never to have been entitled” (s 14(1)). Records must substantiate information provided to the Commissioner, be kept in English or readily convertible form, and (for post-payment records) be retained for five years after payment unless the Commissioner notifies otherwise (s 16(6)–(8)).
An entity that receives an overpayment is under a duty to repay the whole or the excess on the day the Commissioner made the original payment (s 9(2)–(3)). That duty carries with it secondary liability for general interest charge under s 10. Where the conditions in s 11(1) or (2) are met, the entity and another entity become jointly and severally liable.
Entities that make statements in the approved form owe a duty to take reasonable care; failure to do so can trigger joint liability for another entity that relied on the statement. Entities contemplating arrangements that might be characterised as schemes under s 19 must be aware that the Commissioner may look at the eight matters listed in s 19(3) and make a retrospective determination cancelling or reducing entitlement.
The Commissioner has rights and powers that correspond to these duties. The Commissioner may require production of records on 28 days’ notice (s 17), may determine that an entity is not liable to repay an overpayment (s 9(4)), may exempt an entity from record-keeping (s 14(3)), and may make anti-avoidance determinations under s 19. The Commissioner may also assume compliance where an undertaking in the approved form has been given, but retains the power to revoke a favourable decision if the undertaking is broken (s 14(5)–(6)).
Rights to review are conferred on dissatisfied entities under s 13. The rules may also deem decisions or notices to have been made or given, which affects the running of objection and review time limits (s 12).
Penalties and enforcement
The Act itself creates no criminal offences or civil penalties. Section 20(2) expressly prohibits the rules from creating offences or civil penalties, authorising arrest, detention, entry, search or seizure, imposing a tax or setting an appropriation. Enforcement therefore occurs through the existing architecture of the Taxation Administration Act 1953.
Failure to keep or retain records in accordance with ss 15 and 16 engages the general record-keeping offences and administrative penalties in ss 8L, 8Q and 8T of the Taxation Administration Act 1953 (repeatedly cross-referenced in the notes to ss 15, 16 and 17). Non-compliance with a notice to produce records under s 17 does not trigger an offence under s 8C of the Taxation Administration Act 1953, but the underlying record-keeping obligations remain enforceable.
Overpayments are recovered as debts due to the Commonwealth. The liability arises immediately on the day of the original payment (s 9(3)). General interest charge accrues daily under s 10 on any unpaid balance. Joint and several liability under s 11 allows the Commissioner to pursue either or both parties for the full amount.
Anti-avoidance determinations under s 19 are self-executing once made: the Act is taken always to have had the effect stated in the determination. Because such determinations are not legislative instruments they are not subject to disallowance, although they remain amenable to judicial review and, where Part IVC applies, to objection.
The Commissioner’s power to revoke an entitlement decision after a breached undertaking (s 14(6)) operates retrospectively; the entity is taken never to have been entitled. This can convert a payment into an overpayment and trigger the repayment and general interest charge rules.
Confidentiality of information obtained under the Act is protected by Division 355 in Schedule 1 to the Taxation Administration Act 1953 (note to s 5). Breach of those provisions carries its own offences and penalties outside this Act.
How it interacts with other laws
The Act is deliberately woven into the fabric of Commonwealth tax legislation. Definitions in s 6 import the meanings of “entity”, “Australia”, “income tax return”, “income year”, “approved form” and “general interest charge” from the Income Tax Assessment Act 1997 and the Taxation Administration Act 1953. Administration is vested in the Commissioner (s 5), which automatically attracts the confidentiality, objection, review and collection provisions of the Taxation Administration Act 1953.
Part IVC of the Taxation Administration Act 1953 governs objections against the decisions listed in s 13(2). The deeming rules in s 12 interact with the timing rules in Part IVC. Record-keeping obligations are enforced through the existing penalties in ss 8L, 8Q and 8T of the Taxation Administration Act 1953. Payment into a nominated account relies on s 8AAZLH of that Act.
The anti-avoidance rule in s 19 adopts the definition of “scheme” from the A New Tax System (Goods and Services Tax) Act 1999 and uses language reminiscent of, but distinct from, Part IVA of the Income Tax Assessment Act 1936. The eight factors in s 19(3) mirror but do not duplicate the factors in s 177D of that Act.
Section 20(6) permits the rules to prescribe matters required or permitted by other Commonwealth laws to be prescribed by the rules, allowing integration with social security, industry assistance or other statutes. Section 20(5) permits incorporation by reference of instruments as in force from time to time, overcoming the usual limitation in s 14(2) of the Legislation Act 2003.
Constitutionally, s 21 relies on the nationhood power and “all other legislative powers” relevant to each kind of payment. This interaction with constitutional doctrine ensures that each species of payment can rest on whichever head of power is most appropriate (e.g. the corporations power for payments to companies, the trade and commerce power, or the external affairs power).
The Act does not displace general equitable or common-law remedies but operates within the statutory scheme. A determination under s 9(4) that an entity is not liable to repay is an exercise of administrative power and therefore subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 where appropriate.
Recent changes and why
Although the Act as originally enacted focused on the prescribed period (1 March 2020 to 28 March 2021), two expansions are visible on the face of the text. The insertion of s 7(1A) extended the rule-making power to payments whose primary purpose is improving employment prospects or increasing workforce participation during the relevant period (7 October 2020 to 6 October 2022). The addition of s 7(1B) authorised payments to entities adversely affected by public health orders for the period 1 July 2021 to 31 December 2022.
These changes were made because the economic shock of the pandemic evolved. Initial support was directed at preventing business closures and job losses during the first wave. As restrictions eased and then re-emerged in response to later outbreaks, governments needed authority to target support at labour-market re-entry and at businesses forced to close or restrict operations by state and territory health orders. The amendments kept the same administrative machinery (record-keeping, overpayment recovery, anti-avoidance) while expanding the permissible objects of payment. Because the rule-making power in s 20 is expressed broadly and is not limited by the earlier sections, the amendments could be effected without rewriting the core integrity provisions.
The commencement table in s 2 shows that the bulk of the Act (ss 3–20) commenced immediately after Part 1 of Schedule 1 to the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020, ensuring coordinated operation with related measures. The note to the table makes clear that it reflects only the original enactment; later amendments are not recorded there.
Court challenges and controversies
The text of the Act does not itself record any decided cases. However, several structural features are likely to generate litigation. First, the breadth of the anti-avoidance power in s 19, which requires the Commissioner to be “satisfied” that a scheme was entered into for the sole or dominant purpose identified, invites challenges on the ground that the Commissioner misapplied the eight mandatory considerations in s 19(3). Because a s 19 determination operates retrospectively, affected entities may argue that the determination itself constitutes an impermissible exercise of legislative power or infringes Chapter III of the Constitution.
Second, the joint and several liability regime in s 11 contains multiple cumulative preconditions (reasonable reliance, false or misleading statement in approved form, lack of reasonable care, direct benefit, and the Commissioner’s satisfaction that it is reasonable for both parties to be liable). Each element is justiciable. An entity joined under s 11 may contend that it did not “directly benefit” or that the Commissioner’s satisfaction was unreasonable.
Third, the retrospective operation of s 14(1) (“is not entitled, and is taken never to have been entitled”) when record-keeping obligations are breached raises questions about whether a payment that has already been received and spent can lawfully be recharacterised as never having been entitled. The Commissioner’s power to revoke a decision after a breached undertaking (s 14(6)) similarly invites arguments about procedural fairness and the limits of retrospective administrative action.
Fourth, the interaction between the deeming rules in s 12 and the time limits in Part IVC of the Taxation Administration Act 1953 is likely to produce disputes about whether an objection was lodged in time. The rule-making power to deem decisions or notices to have been made or given adds a further layer of complexity that may be tested.
Controversies have also surrounded the breadth of the rule-making power itself. Although s 20(2) contains express limits, the ability of the rules to sub-delegate to the Commissioner (s 20(4)) and to incorporate external materials as in force from time to time (s 20(5)) has been criticised as excessive delegation. The fact that the rules can differentiate between classes of entity and classes of payment without further parliamentary scrutiny has been a point of policy debate.
Because the Act relies on the nationhood power in s 21(1), constitutional challenges testing the outer limits of that power in the context of ongoing pandemic-related spending cannot be ruled out, although the additional basis in s 21(2) provides a safety net.
Gotchas
Most practitioners instinctively treat record-keeping as an afterthought; the Act makes it a condition precedent to entitlement. An entity that receives a payment on the strength of an undertaking under s 14(5) can lose entitlement years later if it fails to keep the required records for the full five years. The words “is taken never to have been entitled” in s 14(1) and s 14(6)(d) mean that the statute of limitations for recovery may never begin to run, exposing recipients to indefinite repayment risk.
The joint-liability net in s 11 is wider than many realise. It is not necessary that the other entity be the one who applied for the payment; it is sufficient that the other entity made a statement in the approved form on which the recipient reasonably relied and that the other entity directly benefited. The Commissioner’s satisfaction that it is “reasonable” for both to be liable is a broad discretion that is difficult to overturn on review.
Section 19’s anti-avoidance test uses the GST Act definition of “scheme”, which is famously expansive. The eight factors in s 19(3) include “any change in the financial position of any entity that has, or has had, any connection (whether of a business, family or other nature) with the recipient”. This can bring family trusts, related companies and even employees within the Commissioner’s gaze. Because the dominant purpose test is assessed objectively, commercial arrangements that produce a tax or payment benefit as a substantial incident can still be caught if the Commissioner concludes the requisite purpose existed.
The interaction between s 9(3) (amount due on the day the Commissioner paid it) and the general interest charge in s 10 can produce eye-watering liabilities even where the overpayment was modest and discovered years later. The Commissioner’s power to determine that no repayment is required under s 9(4) is entirely discretionary and not reviewable under the listed objection rights in s 13(2)(c) unless it falls within one of the other paragraphs.
Many entities assume that because payment was made into their bank account under s 8(4) the matter is closed. The Act expressly states that the Commissioner is taken to have paid the entity, but that does not prevent later recovery action if entitlement is later denied or a s 19 determination is made.
The rules can incorporate external instruments as in force from time to time. An entity that complies with today’s ATO guidance may find itself non-compliant if the incorporated document is later amended. The five-year retention period in s 16(6)–(7) continues even if the rules themselves are repealed.
Finally, because the Act extends to external Territories via the s 960-505 ITAA 1997 definition, entities operating in places such as Christmas Island or Norfolk Island can be caught even though they may not be subject to all State and Territory public health orders.
How to comply
Compliance begins with a thorough understanding of the particular rules made under s 7 that govern the payment in question. Because the primary Act is machinery only, the operative eligibility criteria, amounts, periods and conditions live in the legislative instruments. Entities should obtain and retain a copy of the version of the rules applicable to each payment received.
Before applying for any payment, an entity must create and keep records that substantiate every piece of information it will provide to the Commissioner (s 15(2)). Those records must be in English or readily convertible and should be of a kind and kept in a manner that satisfies any legislative instrument made by the Commissioner under s 15(5). The safest course is to treat the pre-payment obligation as creating a contemporaneous file that will also satisfy the five-year post-payment retention requirement in s 16.
When providing information or making statements in the approved form, entities must take reasonable care. The joint-liability trigger in s 11(1) turns on whether the statement was false or misleading in a material particular and whether reasonable care was taken. Contemporaneous file notes explaining the basis on which figures were calculated can be powerful evidence of reasonable care.
After receipt of a payment, the entity must continue to retain the pre-payment records for five years after the payment was made (s 16(7)) and must keep any additional records required by the rules that substantiate post-payment information (s 16(2)). The five-year clock runs from the date the payment was made, not from the end of the income year or the date of any subsequent audit. If the Commissioner issues a notice under s 17 requiring production, the entity must comply within the time allowed (at least 28 days). Although no offence is committed under s 8C for non-compliance with a s 17 notice, the underlying record-keeping obligations remain enforceable through ss 8L, 8Q and 8T of the Taxation Administration Act 1953.
Entities should put in place systems to monitor any changes to incorporated external instruments, because s 20(5) permits the rules to pick up those changes automatically. If an entity becomes aware that it may have received an overpayment, it should consider voluntarily disclosing to the Commissioner before the Commissioner makes a recovery decision; early disclosure may improve the prospects of a favourable exercise of the s 9(4) discretion.
For arrangements that could be characterised as schemes, a purposive analysis against the eight factors in s 19(3) should be documented contemporaneously. If the dominant purpose is commercial rather than the obtaining of a Coronavirus economic response payment, that should be recorded.
Entities that give an undertaking in the approved form under s 14(5) must treat that undertaking as binding for the full five years. Breach will allow the Commissioner to revoke the entitlement decision and pursue recovery plus general interest charge.
Finally, any entity that receives a notice of a decision it disagrees with should immediately consider its objection rights under s 13 and Part IVC of the Taxation Administration Act 1953. Because the rules may deem the date of decision or notice, time limits can expire earlier than expected. Retaining copies of all correspondence with the Commissioner and all versions of the rules applicable to each payment is the minimum prudent compliance step.
In summary, compliance is not a set-and-forget exercise. It requires contemporaneous, comprehensive records, ongoing monitoring of the rules and incorporated instruments, careful drafting of statements to the Commissioner, and a five-year retention discipline that many entities underestimate. Those who treat the payment as “money in the bank” without maintaining the evidentiary trail do so at their peril.
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Object of this Act
3 Object of this Act
The object of this Act is to provide financial support directly or indirectly to entities that are directly or indirectly affected by the Coronavirus known as COVID‑19.
4 Application to external Territories
4 Application to external Territories
This Act extends to every external Territory referred to in the definition of Australia (within the meaning of section 960‑505 of the Income Tax Assessment Act 1997).
5 General administration of this Act
5 General administration of this Act
The Commissioner has the general administration of this Act.
Note: An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.
6 Definitions
6 Definitions
In this Act:
approved form has the meaning given by section 388‑50 in Schedule 1 to the Taxation Administration Act 1953.
Australia has the same meaning as in section 960‑505 of the Income Tax Assessment Act 1997.
Commissioner means the Commissioner of Taxation.
Coronavirus economic response payment is the collective name for all of the kinds of payments provided for by the rules.
Note: Particular kinds of payments provided for by the rules may also have a particular name for that kind of payment.
entity has the meaning given by the Income Tax Assessment Act 1997.
general interest charge means the charge worked out under Part IIA of the Taxation Administration Act 1953.
income tax return has the meaning given by the Income Tax Assessment Act 1997.
income year has the meaning given by the Income Tax Assessment Act 1997.
prescribed period means the period between 1 March 2020 and 28 March 2021.
relevant period means the period between 7 October 2020 and 6 October 2022.
this Act includes the rules.
7 Coronavirus economic response payments
7 Coronavirus economic response payments
(1) The rules may make provision for and in relation to:
(a) one or more kinds of payments by the Commonwealth to an entity in respect of a time that occurs during the prescribed period; and
(b) the establishment of a scheme providing for matters relating to one or more of those payments, and matters relating to such a scheme.
Paragraphs (a) and (b) do not limit each other.
(1A) The rules may also make provision for and in relation to:
(a) one or more kinds of payments by the Commonwealth to an entity in respect of a time that occurs during the relevant period, being payments that are primarily for the purpose of:
(i) improving the prospects of individuals getting employment in Australia; or
(ii) increasing workforce participation in Australia; and
(b) the establishment of a scheme providing for matters relating to one or more of those payments, and matters relating to such a scheme.
Paragraphs (a) and (b) do not limit each other.
(1B) The rules may also make provision for and in relation to:
(a) one or more kinds of payments by the Commonwealth to an entity in respect of a time that occurs during the period beginning on 1 July 2021 and ending on 31 December 2022, being payments that are for the purpose of providing financial support to entities that are adversely affected by restrictions imposed under a public health order of a State or Territory to prevent or control the transmission of the coronavirus known as COVID‑19; and
(b) the establishment of a scheme providing for matters relating to one or more of those payments, and matters relating to such a scheme.
Paragraphs (a) and (b) do not limit each other.
(2) Without limiting subsections (1), (1A) and (1B), the rules may make provision for and in relation to the following matters:
(a) the eligibility criteria for a payment;
(b) if or how an application for a payment may or must be made;
(c) whether a payment is to be paid in instalments or as a lump sum;
(d) entitlement to a payment or an instalment of a payment;
(e) the amount of a payment or an instalment of a payment;
(f) when a payment or an instalment of a payment is payable;
(g) conditions applying to a payment or an instalment of a payment;
(h) providing information or notices;
(i) rights, obligations or liabilities of:
(i) an entity that is paid a payment; or
(ii) an entity that directly benefits from another entity being paid a payment; or
(iii) if the entitlement of an entity to a payment relates to a relationship existing between the entity and another entity—the other entity.
Paragraphs (a) to (i) do not limit each other.
8 Method of paying Coronavirus economic response payments
8 Method of paying Coronavirus economic response payments
(1) If, under the rules, the Commissioner is required to pay a Coronavirus economic response payment to an entity, the Commissioner must pay the payment to the credit of:
(a) if the entity has nominated a financial institution account as referred to in section 8AAZLH of the Taxation Administration Act 1953—that account; or
(b) if paragraph (a) does not apply—the financial institution account nominated by the entity in the entity’s most recent income tax return lodged for an income year.
(2) However, the Commissioner may direct that the payment be paid to the entity in a different way.
(3) If the entity has not nominated a financial institution account as mentioned in subsection (1) and the Commissioner has not directed that the payment be paid in a different way, the Commissioner is not obliged to pay the payment to the entity until the entity does so.
(4) If the Commissioner pays a payment to the credit of a financial institution account nominated by an entity, the Commissioner is taken to have paid the payment to the entity.
9 Overpayments etc.
9 Overpayments etc.
(1) This section applies if:
(a) the Commissioner pays an amount by way of a Coronavirus economic response payment to an entity; and
(b) either:
(i) the entity was not entitled to the payment; or
(ii) the amount paid is more than the correct amount of the entity’s payment.
(2) The entity is liable to repay the following amount to the Commonwealth:
(a) if the entity was not entitled to the payment—the whole of the amount referred to in paragraph (1)(a);
(b) if the amount paid is more than the correct amount of the entity’s payment—the amount by which the amount paid exceeds the correct amount.
(3) An amount that an entity is liable to repay under subsection (2) is due and payable on the day on which the Commissioner pays the amount referred to in paragraph (1)(a).
(4) The Commissioner may make a written determination that the entity is not liable to repay an amount under subsection (2), in which case the entity is not liable to repay the amount.
(5) A determination under subsection (4) is not a legislative instrument.
10 General interest charge on overpayment debts
10 General interest charge on overpayment debts
(1) If:
(a) an entity is liable under subsection 9(2) to repay an amount; and
(b) the whole or a part of the amount remains unpaid after the time by which the amount is due to be paid;
the entity is liable to pay general interest charge on the unpaid amount.
(2) An entity that is liable under this section to pay general interest charge on an unpaid amount is liable to pay the charge for each day in the period that:
(a) started at the beginning of the day on which the unpaid amount was due to be paid; and
(b) finishes at the end of the last day at the end of which any of the following remains unpaid:
(i) the unpaid amount;
(ii) general interest charge on any of the unpaid amount.
11 Joint and several liability for overpayment debts
11 Joint and several liability for overpayment debts
(1) This section applies if the Commissioner is satisfied that:
(a) an entity is liable under subsection 9(2) to repay an amount because of an overpayment of a Coronavirus economic response payment; and
(b) the overpayment occurred because the entity reasonably relied on a statement that was made by another entity in the approved form; and
(c) the statement by the other entity was false or misleading in a material particular, whether because of things in it or omitted from it; and
(d) the other entity did not take reasonable care in connection with making the statement; and
(e) the other entity directly benefitted from the entity being paid the Coronavirus economic response payment; and
(f) it is reasonable for the entity and the other entity to be jointly and severally liable to pay the amount and any general interest charge payable on the amount under section 10.
(2) This section also applies if the Commissioner is satisfied that:
(a) an entity is liable under subsection 9(2) to repay an amount because of an overpayment of a Coronavirus economic response payment; and
(b) the overpayment is due to fraud of another entity (whether or not the entity was also involved in that fraud); and
(c) it is reasonable for the entity and the other entity to be jointly and severally liable to pay the amount and any general interest charge payable on the amount under section 10.
(3) Despite sections 9 and 10, the entity and the other entity are jointly and severally liable to pay the amount and any general interest charge payable on the amount under section 10.
12 When the Commissioner is taken to have made a decision or given a notice
12 When the Commissioner is taken to have made a decision or given a notice
(1) The rules may provide for:
(a) circumstances in which a decision is taken to have been made by the Commissioner under this Act; and
(b) when the decision is taken to have been made.
(2) The rules may provide for:
(a) circumstances in which a notice of a decision made by the Commissioner under this Act is taken to have been given to an entity; and
(b) when the notice is taken to have been given to the entity.
(3) If:
(a) a decision relating to an entity is made by the Commissioner under this Act; and
(b) the rules do not require the Commissioner to give a notice of the decision to the entity; and
(c) rules are not made for the purposes of subsection (2) in relation to the decision; and
(d) Part IVC of the Taxation Administration Act 1953 applies to the decision;
then, for the purposes of that Part, the Commissioner is taken to have given a notice of the decision to the entity on the day the decision was made.
(4) Subsection (3) applies even if the Commissioner in fact gives the entity a notice of the decision on a different day.
13 Review of the Commissioner’s decision
13 Review of the Commissioner’s decision
(1) An entity who is dissatisfied with a decision covered by subsection (2) may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953.
(2) This subsection covers the following decisions of the Commissioner under this Act:
(a) a decision that the entity is not entitled to a Coronavirus economic response payment for a period;
(b) a decision that the entity is entitled to a Coronavirus economic response payment for a period of a particular amount;
(c) a decision not to make a determination under subsection 9(4) (about liability of the entity for an overpayment);
(d) a decision under subsection 11(1) or (2) that the entity is jointly and severally l
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