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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Australia: Parliament Passes 15% “Backpacker Tax” Rate

(Dec. 7, 2016) On December 1, 2016, on the last parliamentary sitting day of the year, the Australian Parliament voted to pass a bill establishing a 15% income tax rate for temporary foreign workers known as “working holiday makers” (WHMs, or “backpackers”) commonly referred to as the “backpacker tax.” The tax rate to be applied to those who engage in short-term employment in Australia under certain visas has been a controversial issue for the past 18 months, with farmers concerned about the possible negative impact of a higher tax rate on the number of seasonal workers available for upcoming harvests. (See Farmers Tell Canberra Backpacker Tax Reality, FARM ONLINE (Nov. 21, 2016).)

Working Holiday Maker Program

People aged between 18 and 30 years from eligible partner countries may obtain a Working Holiday Visa (subclass 417) or a Work and Holiday Visa (subclass 462).  (What Is the Working Holiday Maker Program?, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION (DIBP); Working Holiday Visa (Subclass 417), DIBP; Work and Holiday Visa (Subclass 462), DIBP (all last visited Dec. 2, 2016).)

The visas allow holders to holiday (i.e. vacation) and work in Australia for up to a year. Holders are generally restricted from working for the same employer for more than six months. The main purpose of the visas is to encourage “cultural exchange and closer ties between Australia and eligible countries.” (Working Holiday Visa (Subclass 417), supra; Working Holiday Visa (Subclass 462), supra.) In addition, “[t]he programme helps Australian regional employers by encouraging working holiday visa holders to seek short-term and casual work in specified industries in regional Australia.” (Fact Sheet – Working Holiday Visa Programme, DIBP (last visited Dec. 2, 2016).) Those who perform “specified work in an eligible regional Australian area for a minimum of three months” may be eligible for a second visa under the program. (Id.) “Regional Australia” refers to towns, small cities, and areas outside of the major capital cities. (What is Regional Australia?, REGIONAL AUSTRALIA INSTITUTE (last visited Dec. 5, 2016).)

2015-2016 Budget Proposal and Subsequent Review

In the 2015-2016 Budget, released in May 2015, the government proposed “to change the tax status of temporary working holiday makers from that of resident, to that of non-resident, from 1 July 2016.” (Les Nielsen, Changed Rules for Working Holiday Makers, in Parliamentary Library, Budget Review 2015-16 (May 2015), Parliament of Australia website.) Under the resident tax approach, the earnings of foreign workers on the relevant visas would be exempt from income tax up to AU$18,200 (about US$13,460). Earnings between AU$18,201 and AU$37,000 (about US$27,370) would be taxed at a rate of 19%, with higher marginal rates applying to subsequent higher amounts. (Id.) Administrative Appeals Tribunal rulings in March 2015 indicated that some WHMs may not qualify as Australian residents and therefore backpackers could not automatically claim the tax-free threshold. (11 Mar 15 Backpacker Not Resident of Australia Under 183 Day Test – Re Koustrup, THE TAX INSTITUTE (Mar. 11, 2015).)

A non-resident tax approach would see WHMs being taxed at the rate of 32.5% for earnings up to AU$80,000. (Nielson, supra.)

Several concerns were raised following the release of the government’s proposal:

  • this new policy could substantially increase the incentives for tax evasion; and
  • the number of working holiday makers may diminish rapidly as soon as visa holders perceive there is less economic benefit to undertaking work that most Australians are reluctant to do, such as picking fruit, cleaning and casual hospitality

The new income tax policy could end up hurting Australian companies that will find it hard to fill job vacancies without a cheap and casual visiting workforce.

Meanwhile, the tourism industry is concerned because backpackers, who are more likely to go to regional areas and are relatively high-spending tourists, will be less likely to visit Australia and will go instead to New Zealand, Canada or South Africa. At the same time, the industry relies heavily on working holiday makers as a labour force. (Id.)

As a result of the surrounding controversy, the government announced a review of the tax arrangements for working holiday makers in March 2016. (Press Release, Barnaby Joyce, Anne RustonKeith Pitt, Review of Taxation Arrangements for Working Holiday Maker Visa Programme a Sensible Approach for Agriculture (Mar. 16, 2016), Minister for Agriculture and Water Resources website.) In May 2016, the government stated that the commencement date for the policy in the previous budget would be deferred to January 1, 2017. (Press Conference, Kelly O’Dwyer, Murrumbatemen, NSW: Working Holiday Visa Review (May 17, 2016).)

The review itself did not commence until August 2016, following the July 2016 general election. (Press Release, Barnaby Joyce, Working Holiday Visa Review Now Underway (Aug. 15, 2016).) A package of measures was subsequently announced at the end of September 2016, and the relevant bills were introduced in the Parliament in October 2016. (Press Release, Scott Morrison, Better Working Holiday Maker Tax Arrangements (Sept. 27, 2016); Scott Morrison, Working Holiday Maker Reform Package: Factsheet (Sept. 2016);

Original Bills Arising from Review

The review resulted in the introduction of four bills:

Elements of the government’s proposed packaged that were included in the bills were to:

  • apply a 19 per cent tax rate to the taxable income of WHMs on amounts up to $37,000, with ordinary tax rates and thresholds applying thereafter
  • increase tax on the Departing Australia Superannuation Payment to 95 per cent [from either 0%, 35%, or 45%, depending on the composition of the balance of the member’s superannuation (i.e., pension)]
  • increase the passenger movement charge by five dollars [from $55 to $60]
  • reduce the application charge for WHM visas by $50 [from $440 to $390]
  • create a register of employers of WHMs, which will be used to enable tax to be withheld at the lower 19 per cent rate
  • provide for the Commissioner of Taxation to prepare an annual report to the Treasurer, for presentation in Parliament, which includes statistics and information derived from the register, and
  • allow the Commissioner to disclose to the Fair Work Ombudsman (FWO) information that is relevant to ensuring an entity’s compliance with the appropriate employment arrangements. (Swoboda & Dossor, supra.)

Other elements that would require other implementation processes include:

  • funding for Tourism Australia to promote Australia as a potential destination for WHMs through a $10 million global youth targeted advertising campaign
  • change visa conditions so that an employer with premises in different regions is able to employ a WHM for 12 months, with the WHM working up to six months in each region
  • change visa conditions so that the eligibility age for a WHM visa is lifted from age 30 to age 35. (Id.)

Consideration of the Bills by the Parliament

The government hoped for swift passage of the relevant bills by the Parliament, with a failure to pass the bills meaning that the tax rate for WHMs would default to 32.5% on January 1, 2017.  However, the Labor Party argued that because the bills included measures not previously scrutinized, they should be referred to a Senate committee. (Anna Vidot, Backpacker Tax: Labor Blames ‘Government Incompetence’ for Delay, ABC News (Oct. 13, 2016).) The Senate Standing Committee on Economics subsequently completed its inquiry on November 11, 2016.  (Working Holiday Maker Reform Package, SENATE STANDING COMMITTEE ON ECONOMICS, PARLIAMENT OF AUSTRALIA (last visited Dec. 2, 2016).) In the meantime, the House of Representatives voted to pass the bills on October 17, 2016. (See, e.g., Income Tax Rates Amendment (Working Holiday Maker Reform) Bill 2016, PARLIAMENT OF AUSTRALIA (last visited Dec. 2, 2016).)

During subsequent debate on the reforms in the Senate, the Senate agreed to an amended tax rate of 10.5%, which the House rejected. (Gareth Hutchens & Paul Karp, Backpacker Tax: Parliament Split as House Rejects Lambie’s 10.5% Plan, GUARDIAN (Nov. 24, 2016).) The government then reached a compromise deal with the One Nation Party for a tax rate of 15%, which was contained in a new bill that was passed by the House. (Katharine Murphy, Coalition Caves to One Nation Demand to Set Backpacker Tax at 15%,  GUARDIAN (Nov. 27, 2016); Income Tax Rates (Working Holiday Maker Reform) Bill 2016 No. 2 (Parliament of Australia website).) However, the bill was defeated by the Senate, which instead voted again for a 10.5% rate. (Anna Vidot & Lucy Barbour, Backpacker Tax: Senate Rejects Government’s 15pc Rate, Labor’s 10.5pc Amendment Passes, ABC NEWS (Nov. 29, 2016); Katharine Murphy, Senate Rejects Backpacker Tax Deal in Surprise Defeat for Turnbull Government, GUARDIAN (Nov. 29, 2016).)

This led the government to negotiate a new deal with the Green Party, involving a 15% tax rate for earnings up to AU$37,000 and a reduction in the percentage of superannuation from 95% to 65% that backpackers will forfeit when they leave Australia. (Henry Belot & Francis Keany, Backpacker Tax: Government Defends Doing Last-Minute Deal with Greens, ABC NEWS (Dec. 1, 2016); Eoin Blackwell, Backpacker Tax Passes with Greens Support, HUFFINGTON POST (Dec. 1, 2016).) In addition, the government agreed to AU$100 million in funding for Landcare, a non-profit organization concerned with sustainable land and environmental management, which has seen a significant cut in government funding in recent years. (Katharine Murphy, Greens Support 15% Backpacker Tax in Return for $100m for Landcare,  GUARDIAN (Dec. 1, 2016); About, LANDCARE AUSTRALIA (last visited Dec. 2, 2016).)

The bill was finally passed by both houses on December 1, 2016, with the new tax rate to take effect from January 1, 2017.

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Israel: Financial Disclosure Requirements Imposed on Senior Public Officials

(Dec. 6, 2016) On November 7, 2016, the Knesset (Israel’s parliament) passed the Public Service (Assets Declaration) Law, 5777-2016 (SEFER HAHUKIM [BOOK OF LAWS, the official gazette, SH] 5756 No.2584, p. 4, Knesset website (last visited Nov. 30, 2016) (in Hebrew)).  The Law imposes a duty on any person defined as a holder of a senior position (HSP) to submit an affidavit regarding all of his or her assets and debts (Assets Declaration).  HSPs are listed in Addendum 1 of the Law and include specific, high-ranking police and prison authority officials; military officers; and senior local authority officials and local authority department heads in charge of tax collection, business licensing, and overseeing construction.  (Id. Addendum 1.)

The Assets Declaration must disclose all assets owned and debt owed by the HSP, his/her cohabiting spouse, or any dependent children. It must be submitted to the appropriate supervisor of the HSP, identified in the Law’s Addendum 2.  (Id. §§ 1-2.)  An Assets Declaration must be submitted within 90 days after the person assumes a senior position; every six years thereafter, unless there have been any changes in its content before the passage of the six-year period; and within 90 days following the end of employment, unless the person is transferred into another position that requires submission of an Assets Declaration.  (Id. § 3.)

Assets Declarations must be maintained in a special register and kept confidential by the HSP’s supervisor, who, in addition to other responsibilities, must conduct sample surveys to ensure that the statements are complete and that they comply with the requirements of the Law. (Id. § 5.)  Although information provided in Assets Declarations is confidential, a court may order its disclosure in connection with suspected criminal activity, having taken into consideration the potential harm to privacy that may result from such disclosure.  (Id. § 7.)

Any specified HSP, including a civil servant, who fails to provide an Assets Declaration has committed a disciplinary violation and is subject to the appropriate disciplinary law applicable to the offender, in accordance with his/her office affiliation.  (Id. § 8.)

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France: Justice Reforms Adopted

(Dec. 6, 2016) On October 12, 2016, the French Parliament adopted a law reforming various aspects of the French justice system. The President promulgated the law on November 18.  (Loi n° 2016-1547 du 18 novembre 2016 de modernisation de la justice du XXIe siècle (1) [Law No. 2016-1547 of 18 November 2016 to Modernize XXIst Century Justice (1)], LEGIFRANCE.)

The main goals of this law are to simplify certain procedures in order to make justice more accessible and to reduce the workload of French judicial institutions. (Jean-Baptiste Jacquin, Divorce, délits routiers, pacs : ce que prévoit la « loi justice du XXIe siècle » [Divorce, Road Traffic Infractions, Civil Unions : What the “XXIst Century Justice Law” Provides], LE MONDE (Oct. 13, 2016).) The law brings changes in a wide variety of judicial areas. The main highlights include:

  • Juvenile correctional courts (tribunaux correctionnels pour mineurs) were eliminated. (Loi No. 2016-1547, art. 29.) These courts had been established in 2011, but were found to be less efficient in dealing with juvenile delinquency than the prior system, under which minors accused of committing criminal infractions were judged by a court for children (tribunal pour enfants). (Jacquin, supra.)
  • Certain driving offenses, such as driving without a license or without insurance, will be automatically punished by a fine of €800 (about US$850), which offenders can pay to avoid having to go through a judicial procedure. (Loi No. 2016-1547, arts. 35 & 36.)
  • A judicial information service is to be formed to help people learn about their rights and about judicial procedures. (Id. art. 2; Loi du 18 novembre 2016 de modernization de la justice du XXIe siècle [Law of 18 November 2016 to Modernize 21st Century Justice], VIE-PUBLIQUE.FR [web portal of the French administration] (Nov. 21, 2016).)
  • Spouses seeking a divorce by mutual consent will need to be represented by separate attorneys (formerly, spouses could be represented by one attorney in amicable divorces), but they will be able to simply have their divorce agreement officially recorded by a notary rather than have to go before a family judge as was previously the case. (Loi No. 2016-1547, art. 50; Jacquin, supra.)
  • Civil unions will, like marriages, be officially recorded at town and city halls, instead of at courthouses. (Loi No. 2016-1547, art. 48.)
  • Transgender individuals who wish to change the gender designation on their birth certificate and other official records will no longer be required to have gone through any surgical operation or other medical treatment beforehand. (Id. art. 56.)
  • Rules of procedure for class actions in the fields of health, discrimination, environment, and digital privacy were largely consolidated and harmonized. (Id. arts. 60-92; Jacquin, supra.)
  • Alternative dispute resolution will be further encouraged. For certain smaller claims, an attempt at ADR will be required before a court is willing to hear the claim. (Loi No. 2016-1547, arts. 4-11.)

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Indonesia: Rule of Law Reform Proposed

(Dec. 6, 2016) On October 11, 2016, Indonesia’s President Joko Widodo announced an overhaul of the legal system, with the aim of ending corruption and improving rule of law.  He called for far-reaching legal reform to improve service to the public and reduce distrust.  He also said that a strong legal system is “crucial for a country to compete at the regional level.  There are no more options, we must immediately carry out substantial legal reform from the highest to the lowest [levels].”  (Ina Parlina & Ayomi Amindoni, Jokowi Means Business with Extensive Legal Reform, JAKARTA POST (Oct. 12, 2016).) Presidential spokesman Johan Budi said, moreover, that improved public service is also a goal of the reforms.  (Id.)

Background

The President, who is often called Jokowi for short, noted that “the goal of being a state of justice has not been reached, neither by the state administration, nor in the social life.  Our law is stern towards the lower classes, but becomes blurred as it reaches the top.”  (Massive Legal Reforms Needed for Indonesia to Become a State of Law: Jokowi, JAKARTA GLOBE (Oct. 11, 2016).)

Indonesia has long had a problem with endemic corruption, although it is not considered to be among the worst countries for the problem.  Jokowi cited the global corruption perception index, published by Transparency International, that ranked Indonesia as 88th among the 168 countries surveyed in 2015.  (Id.; Corruption Perceptions Index 2015, Transparency International website (last visited Nov. 29, 2016) (click on Indonesia on the map to see the ranking).)  The World Justice Project ranks Indonesia 61st out of 113 nations on rule of law issues in general.  (Rule of Law Around the World, World Justice Project website (last visited Nov. 29, 2016).)  One form of corruption in Indonesia is the levying of illegal fees by government officials.  Jokowi visited the Ministry of Transportation on the day he made his announcement; police had just arrested several individuals there for imposing extra fees in the granting of various permits.  (Parlina & Amindoni, supra.)

A number of politicians have run for office after serving prison terms for corruption, including Muhammad Taufik, who won a seat on the City Council in Jakarta after spending a year imprisoned for corruption in election material procurement.  His crime had been committed while he was the chair of the Jakarta General Elections Commission.  (Id.)

Nature of Proposed Reforms

The reform package introduced by Jokowi is designed to create a “culture of law,” as well as to empower those enforcing the law and reform legal instruments.  There are several major priorities: ending illegal levies and the taking of bribes; combatting smuggling; and making the processing of vehicle documents, of permits to stay in the country for foreigners, and of prisoner transfers more efficient.  (Nani Afrida & Pandaya, Superficial Reform to Uphold Rule of Flaw, JAKARTA POST (Nov. 28, 2016).)  Jokowi has also stressed that measures are needed to prevent crimes and settle cases involving corruption, human rights abuses, causing forest fires, and narcotics crimes.  (Parlina & Amindoni, supra.)

One part of the new policy is designed to reform the prison system, which has been called corrupt and overcrowded.  New penitentiaries will be built on remote islands to hold those convicted of drug offenses and terrorism.  In addition to adding capacity to the prison system, this policy will isolate certain convicts from other prisoners that they might negatively influence.  (Afrida & Pandaya, supra.)

The Coordinating Political, Legal and Security Affairs Minister, Wiranto, has been designated as the leader of the effort to end illegal imposition of levies.  He will also work on smoothing the process of obtaining driver’s licenses.  (Id.)  Wiranto, who, like a number of Indonesians, is known by a single name, was appointed Minister in July 2016 and is a controversial figure.  He previously served as a general in the Indonesian military and has been accused of committing atrocities in 1999, during the conflict in East Timor.  (Wiranto Named Indonesia’s Top Security Minister, AL JAZEERA (July 27, 2016).)

Reactions to Proposal

Some commentators have been critical of the law reform effort as insufficient to address the scale of problems with the legal system and point out that the reform proposal has received much less attention than the various economic reform packages introduced this year.  The problems they argue Jokowi has neglected include smuggling, “poor law enforcement, a disoriented anticorruption campaign and his administration’s weak political will to resolve gross human rights abuses that remain a thorn on [sic] his side.”   (Afrida & Pandaya, supra.)

Alvon Kurnia Palma, the chairman of the Indonesian Legal Aid Foundation, also criticized the proposed legal reforms as “just too investment-oriented” and  offering “no solutions to fundamental legal problems.”  (Id.)  Palma added that “[p]eople’s right to obtain legal aid has been curtailed on the pretext of budget deficit and in favor of infrastructure development.”  (Id.)

It has been argued by commentators in the press that the measures against bribery and other forms of corruption may largely benefit business owners, who complain of bureaucratic red tape and illegal levies to obtain business licenses.  (Id.)

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Germany: Quota of Lawyers Suggested for Appointment of Justices to Federal Constitutional Court

(Dec. 5, 2016) In November 2016, the Federal Bar Association (Bundesrechtsanwaltskammer, BRAK) and the German Lawyers’ Association (Deutscher Anwaltverein, DAV) proposed a mandatory lawyers’ quota for the appointment of justices to the Federal Constitutional Court. They suggested that at least one of the justices in each of the two chambers should be an attorney who has been practicing law for at least five years.  (Press Release, Bundesrechtsanwaltskammer, Gemeinsame Presseerklärung von BRAK (Nr. 14) und DAV (Nr. 31) v. 02.11.2016. Anwältinnen und Anwälte auf die Richterbank des Bundesverfassungsgerichts [Joint Press Release of BRAK (No. 14) and DAV (No. 31) of Nov. 2, 2016. Appointment of Lawyers to the Bench of the Federal Constitutional Court] (Nov. 2, 2016), BRAK website.)

The president of the German Lawyers’ Association, Ulrich Schellenberg, justified the proposal by pointing to the fact that even though “attorney” is the most common legal profession, only three of the justices selected for the Federal Constitutional Court between 1967 and 2005 have been practicing lawyers and there have been no new appointments of lawyers since 2005. (Id.)  The proposal criticizes the fact that open positions are “as a general rule filled with law professors.”  It states that lawyers are particularly well qualified to serve as justices at the Federal Constitutional Court, because they are the ones who “experience the law in practice every day.”  (Id.)

Background

The German Federal Constitutional Court is one of six supreme courts and is exclusively in charge of constitutional questions. It is composed of two chambers, called senates, with each senate consisting of eight justices.  Each justice serves for a term of 12 years.  (Law on the Federal Constitutional Court, Aug. 11, 1993, Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 1473, as amended through Aug. 2015, §§ 2, 4.)

The German Basic Law, the country’s constitution, provides that the Federal Constitutional Court must consist of federal judges and other members. (Basic Law for the Federal Republic of Germany (May 23, 1949), BGBl. I at 1, as amended, GERMAN LAWS ONLINE (unofficial English translation), art. 59, ¶ 2.)  The Law on the Federal Constitutional Court reiterates this requirement and states that three positions in each senate are reserved for judges who have previously served on a German supreme federal court for at least three years. (Law on the Federal Constitutional Court, § 2 ¶ 3.)  The other members need to fulfill the general requirements, but there is no quota.  In general, a candidate must be at least 40 years of age, be eligible for election to the Bundestag (parliament), and have stated in writing that he or she is willing to become a member of the Federal Constitutional Court.  (Id. § 3.)  Furthermore, each justice must have completed a legal education that qualifies him or her for judicial office pursuant to the German Judiciary Act. (Id.; Deutsches Richtergesetz [German Judiciary Act], Apr. 19, 1972, BGBl. I at 713, as amended.)

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