Education and Other Legislation Amendment (VET Student Loan Debt Separation) Bill 2018 [2018] AUSStaCSBSD 110 (9 May 2018)

• Education and Other Legislation Amendment (VET Student Loan Debt Separation) Bill 2018
• Absolute liability offences 42

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Education and Other Legislation Amendment (VET Student Loan Debt Separation) Bill 2018

Purpose	This bill seeks to amend various Acts to enable the separation of VET student loans debts from other forms of Higher Education Loan Program debts The bill also seeks to amend the VET Student Loans Act 2016 to allow the courses and loan caps determination to incorporate any matter by reference as in force from time to time
Portfolio	Education and Training
Introduced	House of Representatives on 28 March 2018

Absolute liability offences ^[42]

1.58 Proposed subsection 23ED(1) seeks to require a person who has an accumulated or undischarged Vocational Education and Training Student Loan (VETSL) debt^[43] and who leaves Australia with the intention of remaining outside of Australia for at least 183 days (other than in circumstances specified in the rules), to give the Commissioner of Taxation (the Commissioner) a notice in an approved form. Proposed subsection 23ED(2) seeks to place the same requirement to provide a notice on a person who has been outside Australia for at least 183 days in any 12 month period (other than in circumstances specified in the rules) and who was not required to give a notice under subsection (1). Proposed subsection 23ED(3) would require a foreign resident who has an accumulated VETSL debt on 1 June immediately preceding an income year to give a notice relating to their income for the income year.

1.59 Proposed section 23FE seeks to apply Part III of the Taxation Administration Act 1953 (TAA Act) in relation to a failure to comply with proposed section 23ED as if that section were a taxation law within the meaning of section 2 of the TAA Act. Pursuant to sections 8C and 8E of Part III of the TAA Act, a failure to give the Commissioner the notices specified in proposed section 23ED would therefore be an offence of absolute liability subject in the first instance to a maximum penalty of 20 penalty units. Where a person has been previously convicted of two or more relevant offences, a penalty not exceeding 50 penalty units or 12 month's imprisonment, or both, may be imposed.

1.60 Under general principles of the criminal law, fault is required to be proved before a person can be found guilty of a criminal offence (ensuring that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have). When legislation states that an offence is one of absolute liability, this removes the requirement for the prosecution to prove the defendant's fault. In such cases, an offence will be made out if it can be proven that the defendant engaged in certain conduct, without the prosecution having to prove that the defendant intended this, or was reckless or negligent. The application of absolute liability also prevents the defence of honest and reasonable mistake of fact from being raised, a defence that remains available where strict liability is applied.

1.61 As the imposition of absolute liability undermines fundamental criminal law principles, the committee expects the explanatory memorandum to provide a clear justification for any imposition of absolute liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.^[44]

1.62 In this instance, the explanatory memorandum notes that proposed section 23FE seeks to apply Part III of the TAA to proposed section 23ED and that this provision is modelled on section 154-90 of the Higher Education Support Act 2003.^[45] However, the explanatory memorandum neither explains nor justifies the fact that this will make a failure to comply with section 23ED an offence of absolute liability, potentially subject to a penalty of imprisonment for up to 12 months. The committee's consistent scrutiny position is that a proposed provision is not adequately justified merely by the fact that it is intended to apply, mirror or be consistent with provisions of an existing law.

1.63 The committee requests the assistant minister's detailed justification, with reference to the principles set out in the Guide to Framing Commonwealth Offences,^[46] for applying an offence of absolute liability, subject to a maximum penalty of up to 12 months imprisonment, to a failure to comply with the requirements of proposed section 23ED.

1.64 If it is considered necessary to apply Part III of the Taxation Administration Act 1953, the committee also requests the minister's advice as to why it would not be appropriate to modify its operation so as to make a failure to comply with proposed section 23ED an offence of strict liability, rather than absolute liability, and subject only to a pecuniary, and not custodial, penalty.

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[42] Schedule 1, item 20, proposed sections 23ED and 23FE. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[43] The bill defines 'VETSL debt' under Schedule 1, item 20, proposed section 23BA.

[44] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 22-25.

[45] Explanatory memorandum, p. 33.

[46] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25.