Revised Explanatory Memorandum(Circulated by authority of the Assistant Treasurer, the Hon Stuart Robert MP)
Chapter 3 Miscellaneous amendments
Outline of chapter
3.1 Schedule 4 to the Bill makes a number of miscellaneous amendments to legislation in the Treasury portfolio. These amendments are part of the Government's commitment to the care and maintenance of the Treasury portfolio legislation.
3.2 These amendments make minor technical changes to correct spelling errors, bring provisions in line with drafting conventions and repeal inoperative provisions. The Schedule also makes minor technical amendments to remove administrative inefficiencies and clarifies the law to ensure that it operates in accordance with policy intent.
Context of amendments
3.3 The 2008 Tax Design Review Panel recommended a channel to regularly progress amendments for the care and maintenance of the tax law. The Tax Design Review Panel was appointed to examine how to reduce delays in enacting tax legislation and improve the quality of the tax law changes.
3.4 Miscellaneous amendments to Treasury portfolio legislation are periodically made to remove anomalies, correct unintended outcomes and improve the quality of legislation within the Treasury portfolio.
3.5 Progressing such amendments gives priority to the care and maintenance of legislation in the Treasury portfolio.
3.6 Consultation was undertaken on the amendments and stakeholders were supportive of the changes.
Summary of new law
3.7 These miscellaneous amendments address technical deficiencies and legislative uncertainties within Treasury portfolio legislation including taxation, superannuation, corporations, and competition and consumer laws.
3.8 The Schedule contains the following Parts:
- Part 1-Amendments commencing on the day after Royal Assent;
- Part 2-Amendments commencing on the first 1 January, 1 April, 1 July or 1 October to occur after Royal Assent;
- Part 3-Amendments commencing 28 days after Royal Assent; and
- Part 4-Amendments commencing on 1 January 2019.
Detailed explanation of new law
Part 1-Amendments commencing on the day after Royal Assent
Amendment to the APRA Act
3.9 Schedule 4 to the Bill amends subsection 55(2) of the APRA Act to omit the reference to subsection 55(1A). That subsection was repealed by the Governance Review Implementation (Treasury Portfolio Agencies) Act 2007. [Schedule 4, item 1, subsection 55(2) of the APRA Act]
3.10 Schedule 4 to the Bill also amends paragraph 56(2)(c) of the APRA Act so that it refers to the defences to the offence for disclosing protected information contained in subsections 56(5D) and (6A). [Schedule 4, item 2, paragraph 56(2)(c) of the APRA Act]
3.11 There is no issue with the application of those defences as they are self-contained. However, the amendment ensures that paragraph 56(2)(c) correctly refers to all of the defences that are applicable to the offence in in subsection 56(2).
Amendments to the Banking Act 1959
Defences to disclosure of protected information
3.12 Schedule 4 to the Bill amends paragraph 11CM(1)(c) of the Banking Act 1959 to ensure that the disclosure of protected information is permitted where it is made in accordance with a provision referred to in paragraph 56(2)(c) of the APRA Act. [Schedule 4, item 3, paragraph 11CM(1)(c) of the Banking Act 1959]
3.13 Paragraph 11CM(1)(c) of the Banking Act 1959 ensures that the defences against committing an offence under the APRA Act for the disclosure of protected information also apply to the equivalent offence in the Banking Act 1959.
3.14 Paragraph 11CM(1)(c) previously referred to the specific provisions containing these defences in section 56 of the APRA Act. These amendments apply a more flexible approach by updating paragraph 11CM(1)(c) to refer to the part of section 56 that lists the defences in that section (that is, paragraph 56(2)(c) of the APRA Act). This approach ensures that any new defences that are inserted into section 56 of the APRA Act are automatically extended to paragraph 11CM(1)(c) without the need for consequential amendments. The amendments also ensures that new subsections 56(7D) to (7F) of the APRA Act apply for the purposes of paragraph 11CM(1)(c) of the Banking Act 1959. The amendments to the list in paragraph 56(2)(c) of the APRA Act described above also ensure that subsections 56(5D) and (6A) of the APRA Act apply for the purposes of paragraph 11CM(1)(c) of the Banking Act 1959.
3.15 The amendment applies for all disclosures, regardless of whether the disclosure was made before or after the amendment commences. [Schedule 4, subitem 65(1)]
3.16 The amendment does not affect the status of any disclosures that were permitted under the previous provision. This is because any such disclosures continue to be permitted under the amended provision.
3.17 Schedule 4 amends paragraph 11E(2)(b) of the Banking Act 1959 to ensure that it correctly refers to subsection 11E(1B) instead of subsection 11E(1). [Schedule 4, item 4, paragraph 11E(2)(b) of the Banking Act 1959]
3.18 Subsection 11E(2) makes it an offence for a foreign ADI to accept a deposit from a person in Australia without first informing them of certain requirements under the Banking Act 1959 that the foreign ADI is not subject to.
3.19 Section 11E was amended by the Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Act 2018. As part of these amendments, the provision that exempts a foreign ADI from certain regulatory requirements in respect of deposits made by persons in Australia was moved to subsection 11E(1B). These amendments ensure that this exemption is correctly referred to in subsection 11E(2).
3.20 Schedule 4 also amends subsection 14A(6) of the Banking Act 1959 to amend the term 'officer' so that it is defined in relation to a 'body corporate' instead of an 'ADI'. [Schedule 4, item 5, definition of 'officer' in subsection 14A(6) of the Banking Act 1959]
3.21 This amendment corrects an inconsistency between the way that the term 'officer' was previously defined and the rest of section 14A of the Banking Act 1959, which refers to 'body corporates' rather than 'ADIs'. The amendment does not affect the meaning of the term 'officer'.
Amendments to the Competition and Consumer Act 2010
Extensions for time to comply
3.22 Schedule 4 to the Bill amends the period of time within which a corporation must comply with a notice to obtain information or produce documents in relation to compliance with industry codes.
3.23 Under section 51ADD, corporations have 21 days to comply with a notice issued by the ACCC unless an extension is sought under section 51ADE and granted by the ACCC. The current drafting only allows for one extension of time for compliance with a notice. This meant that any further extension required a revocation of the original notice and reissue.
3.24 This amendment enables subsequent extensions of time to be sought under the one notice, reducing the administrative burden of revoking and reissuing a largely identical notice [Schedule 4, item 6, subsection 51ADE(1) of the Competition and Consumer Act 2010]
3.25 The amendment applies to notices that are given on or after the amendment commences. [Schedule 4, subitem 65(2)]
Authorisation of conduct
3.26 Schedule 4 inserts paragraph 90(8)(ba) to ensure authorisation of conduct under sections 45E and 45EA is subject to the same test as all other per se conduct.
3.27 Section 90 sets out the ACCC's powers and obligations in relation to authorising particular conduct subject to an application. Subsection 90(7) provides that the ACCC must not make a determination granting an authorisation in respect of conduct to which the provisions of Part IV would or might apply unless the conduct would not substantially lessen competition or would result in a net public benefit. Subsection 90(8) carves out the substantial lessening of competition test from subsection 90(7) for cartel conduct, secondary boycotts and resale price maintenance (i.e. per se breaches). Per se breaches are regarded as anti-competitive and are prohibited, regardless of whether they have the purpose, effect or likely effect of substantially lessening competition.
3.28 Currently, subsection 90(8) does not include references to sections 45E and 45EA, which prohibit contracts, arrangements or understandings affecting the supply or acquisition of goods or services. This amendment ensures that all per se conduct is subject to the same authorisation test and can only be authorised if it results in a net public benefit. [Schedule 4, item 7, paragraph 90(8)(ba) of the Competition and Consumer Act 2010]
3.29 The amendment applies to authorisations made on or after the amendment commences. [Schedule 4, subitem 65(3)]
3.30 Schedule 4 also repeals subsection 91(3) of the Competition and Consumer Act 2010 as that provision was replicated by subsection 88(3) and therefore is no longer required. Both provisions provide that an authorisation granted by the ACCC may be expressed to be subject to such conditions as are specified in the authorisation. [Schedule 4, item 8, subsection 91(3) of the Competition and Consumer Act 2010]
3.31 Schedule 4 inserts a new provision to ensure that, despite subsection 44(1) of the Legislation Act 2003, instruments made under section 95AA of the Competition and Consumer Act 2010 are subject to disallowance in accordance with section 42 of the Legislation Act 2003.
3.32 The Competition and Consumer Amendment (Competition Policy Review) Act 2017 amended Part VII of the Competition and Consumer Act 2010 to give the ACCC power to make class exemptions under section 95AA. Part IV and the related provisions of the Competition and Consumer Act 2010 (including Part VII) facilitate both the establishment and operation of an intergovernmental scheme. Thus, legislative instruments made under those provisions come within the scope of the exemption from disallowance in section 44 of the Legislation Act 2003 unless the legislation states otherwise.
3.33 Section 95AA of the Competition and Consumer Act 2010 does not contain an express provision overriding the effect of subsection 44(1) of the Legislation Act 2003. Accordingly, legislative instrument currently made under section 95AA are not disallowable. However, the Explanatory Memorandum to the Bill inserting section 95AA stated that the class exemptions are disallowable (see paragraph 9.106 of the Explanatory Memorandum to the Competition and Consumer Amendment (Competition Policy Review) Bill 2017). This amendment corrects the omission of the express provision to ensure consistency with the original policy intention. [Schedule 4, item 9, section 95AA of the Competition and Consumer Act 2010]
Notice of holding an inquiry
3.34 Schedule 4 to the Bill amends the way in which an inquiry body publishes a notice that it is holding an inquiry. The notice needs to be by a notifiable instrument rather than publication in the Gazette and as an advertisement in a newspaper circulating in each State and Territory. [Schedule 4, item 10, subsection 95L(1) of the Competition and Consumer Act 2010]
3.35 The amendment modernises the way the notices are published and reduces the cost involved for the inquiry body, as the notifiable instruments are published electronically on the Federal Register of Legislation, which is readily accessible to the community.
Delegation to vary the time specified in a notice
3.36 Schedule 4 to the Bill amends section 155 of the Competition and Consumer Act 2010 to expressly provide for a member of the ACCC to vary the time specified in a notice and to enable the delegation of the same power to an SES employee (or an acting SES employee) of the ACCC.
3.37 Subsection 155(1) provides that where the ACCC, Chair, Deputy Chair has a reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to certain matters, an ACCC member may, by notice in writing, require a person to furnish the information, produce the documents or give evidence.
3.38 A large proportion of notices that the ACCC issues entail at least one or more variations. The most common variation is an extension of time to respond to the notice granted by the Commission relying on subsection 33(3) of the Acts Interpretation Act 1901. It is administratively burdensome to have a member of the ACCC vary a notice each time an extension of time is required.
3.39 The amendments support the efficient use of the regulator's time by enabling a member of the ACCC to delegate the power to vary the time specified in an notice to an SES employee (or an acting SES employee) of the ACCC, including to directly extend the time to respond to a notice. The power for a member of the ACCC to delegate extensions of time is appropriate as it is sufficiently narrow (i.e. only pertains to variations of time) and the class of delegates (i.e. SES employees and acting SES employees) has appropriate knowledge to assess the suitability of granting the variation. Under the new provision delegates must also comply with any directions of the ACCC member. [Schedule 4, items 11 and 12, subsections 155(2AA), (2AB), (8B) and (8C) of the Competition and Consumer Act 2010]
3.40 The amendments apply to notices given on or after the amendments commence. [Schedule 4, subitem 65(4)]
Amendments to the Corporations Act 2001
Notices and terms used in the external administration provisions
3.41 Schedule 4 to the Bill provides for electronic disclosure of declarations of relationships and indemnities by administrators and liquidators on or after commencement of the amendments. The amendments correct an anomaly which required these declarations to be sent via post separately from other documents being distributed at the same time. [Schedule 4, items 16, 17, 19, 20, 23 and 24 and subitem 65(5), subsections 436DA(3) and 506A(2), and paragraphs 600G(1)(aa) and 600G(1)(m) of the Corporations Act 2001]
3.42 The Insolvency Practice Schedule allows industry bodies to lodge with ASIC a notice of possible grounds for disciplinary action against a registered liquidator (see section 40-100 of Schedule 2 to the Corporations Act 2001). The Bill ensures that this notice is not available for inspection and copying. This is consistent with the treatment of other notices which contain sensitive information. [Schedule 4, item 47, subparagraph 1274(2)(a)(ivb) of the Corporations Act 2001]
3.43 Schedule 4 also replaces incorrect references to 'administrator' in subsections 506A(3) and (6) of the Corporations Act 2001 with a reference to 'liquidator'. The provision deals with declarations by a liquidator and the changes correct the drafting errors. [Schedule 4, item 21, subsections 506A(3) and (6) of the Corporations Act 2001]
Effect of deregistration on the cancellation of licences
3.44 Schedule 4 inserts a new subsection 601AH(6) into the Corporations Act 2001 which clarifies that subsection 601AH(5) does not affect the cancellation of an Australian financial services licence held by a company where the licence is cancelled because the company is deregistered. [Schedule 1, item 26, subsection 601AH(6) of the Corporations Act 2001]
3.45 Subsection 601AH(5) deems a company that is reinstated to never have been deregistered.
Misdescribed amendments in the Asia Region Funds Passport Act
3.46 Schedule 4 to the Bill makes consequential amendments to the Courts general power to make orders in section 1325 of the Corporations Act 2001. These amendments are included in the Corporations Amendment (Asia Region Funds Passport) Act 2018 but they could not be incorporated into the Corporations Act 2001 because they were misdescribed. [Schedule 4, items 48 to 50, subsections 1325(1) to (3) of the Corporations Act 2001]
Amendment to the Financial Sector (Transfer and Restructure) Act 1999
3.47 Schedule 4 to the Bill amends subsection 11(1A) and the note in subsection 14(2) of the Financial Sector (Transfer and Restructure) Act 1999. Under section 11 of this Act, APRA may make a 'voluntary transfer approval' for the transfer of business. However, subsection 11(1A) and the note in subsection 14(2) refers to APRA making a 'determination', which is inconsistent with the terminology used in section 11. [Schedule 4, items 61 and 62, subsections 11(1A) and 14(2) of the Financial Sector (Transfer and Restructure) Act 1999]
Amendments to the Credit Act
3.48 Schedule 4 to the Bill amends section 266 of the Credit Act to ensure that ASIC may issue a notice to produce books to persons that ASIC, on reasonable grounds, suspects to have been a party to engaging in a credit activity. [Schedule 4, item 64, section 266 of the Credit Act]
3.49 This amendment replaces the previous requirement that a person must have been engaging in a credit activity 'in ASIC's opinion' in order for ASIC to issue a notice to produce books. The updated requirement ensures that ASIC can issue notices where there is a reasonably held suspicion of such activities and is consistent with the approach taken in other provisions of the Credit Act such as in sections 253, 269, 270 and 274.
3.50 The amendment applies in relation to notices issued on or after the time that it commences (being the day after the amendment receives the Royal Assent). [Schedule 4, subitem 65(6)]
3.51 References to the Legislative Instruments Act 2003 are replaced with references to the Legislation Act 2003. The Legislative Instruments Act 2003 was renamed when the Act was amended to introduce a consolidated framework for the publication of Commonwealth Acts as well as the registration of Commonwealth instruments. [Schedule 4, items 15, 22, 27, 33, 35, 46 and 63, subsections 200AB(1), 200AB(2), 200A(1A), 579Q(1), 579Q(2), 601YAA(5), 907B(3), 926A(5) and 1020AF(1) of the Corporations Act 2001; and subsections 109(6) and 163(6) of the Credit Act]
3.52 There are a number of typographical changes in the Corporations Act 2001 in reference to self managed super funds, so that the descriptor 'self-managed' is replaced with 'self managed' to more accurately reflect current terminology. [Schedule 4, items 29, 30, 34 and 38 to 40, section 761A, paragraphs 911A(2)(j) and 1012D(2A)(a), subsections 1012D(2A), 1015D(2) and 1017C(6) of the Corporations Act 2001]
3.53 This Bill also makes a number of small corrections to typographical errors in various parts of the Corporations Act 2001 and removes incorrect spacing between words and dashes. [Schedule 4, items 13, 14, 18, 25, 28, 31, 36, 37, 41 to 45, and 51 to 60, definition of 'registered body' in section 9, subparagraph 135(1)(b)(ii), subsection 477(2B), paragraph (b) of the definition of 'external administration' in subsection 600H(2), paragraph 710(3)(e), subsection 769B(7), Subdivision C of Division 2 of Part 7.5A (heading), subparagraph 946B(1)(g)(iii), section 1011A (heading), subsection 1017DA(1), paragraph 1384(3)(b), Part 10.10 (heading), Part 10.13 (heading), section 1546X (heading), table items 173S and 173T in Schedule 3, paragraphs 35(1)(a), (b) and (c) of Schedule 4, paragraphs 35(2)(c) and (d) of Schedule 4, paragraphs 36(1)(a) to (d) of Schedule 4, paragraphs 38(2)(a) to (i) of Schedule 4, paragraphs 39(2)(a) and (b) of Schedule 4, and paragraphs 39(4)(a) and (b) of Schedule 4 of the Corporations Act 2001]
Part 2-Amendments commencing on the first 1 January, 1 April, 1 July or 1 October to occur after Royal Assent
Removing inoperative provisions relating to tax offsets for the first child and childcare expenses.
3.54 Schedule 4 to the Bill removes inoperative provisions implementing the first child tax offset and childcare expenses tax offset. [Schedule 4, items 66, 70, 72, 76 to 78, 84 to 94 , 108 and 109, section 169A of the A New Tax System (Family Assistance) (Administration) Act 1999; table item 24 in subsection 170(10AA) of the ITAA 1936; table item headed 'child' in section 13-1, Subdivisions 61-I and 61-IA, table item 25 in subsection 63-10(1), table item 10 in section 67-23, table item 4 in section 960-265, and definitions of 'approved child care', 'approved child care fees', 'base year', 'child care base week', 'child care offset limit', 'child event', 'entitled to child care benefit', 'entitlement to child care benefit', 'legally responsible' and 'primary entitlement' in subsection 995-1(1) of the ITAA 1997; and sections 45-340 and 45-375 in Schedule 1 to the TAA 1953]
3.55 Subdivision 61-I provides a tax offset for the first child had on or after 1 July 2001 but before 1 July 2004 for a period of no more than five years. Subdivision 61-IA provides a tax offset for childcare expenses incurred before 1 July 2007. Both Subdivisions are now inoperative and outside standard amendment period.
Removing inoperative provisions from the ITAA 1936
3.56 Schedule 4 to the Bill removes section 6A of the ITAA 1936, which deems someone to cease to have a right to receive certain superannuation benefits in certain situations and to quantify those benefits for the operation of certain provisions of the ITAA 1936. All the provisions to which this treatment is relevant have been repealed from the ITAA 1936 and section 6A no longer has any residual operation. [Schedule 4, item 67, section 6A of the ITAA 1936]
3.57 Schedule 4 also removes section 27 of ITAA 1936, which replaced the Taxation of Loans Act 1923 to ensure that despite any other Act interest from government bonds was always taxable. Section 27 was drafted in different terms as ITAA 1936 included these amounts in assessable income already. The only change required at the time was to override paragraph 23(q) of the ITAA 1936 which exempted foreign sourced income of an individual that was subject to tax in a foreign jurisdiction. Paragraph 23(q) has been repealed and section 27 has been inoperative since then. [Schedule 4, items 69 and 71, section 27 of the ITAA 1936 and table item headed 'interest' in section 10-5 of the ITAA 1997]
Updates to listing of existing deductible gift recipients
3.58 Schedule 4 to the Bill amends the deductible gifts recipient listings to reflect the governance restructure of the Australian Ireland Fund and the appropriate category for its listing as a deductible gift recipient following the restructure. Australia Ireland Fund is currently listed as a deductible gift recipient and remains so following these amendments. [Schedule 4, items 73 to 75, sections 30-25, 30-95 and 30-315 of the ITAA 1997]
First Home Super Saver Scheme
3.59 Schedule 4 to the Bill amends the First Home Super Saver Scheme rules by bringing forward the time that an individual can enter into a contract to purchase or construct their first home under the scheme.
3.60 The existing law requires individuals to wait until amounts have been released from their superannuation under the First Home Super Saver Scheme before they can enter into a contract to purchase or construct their home. The time it takes to release and be paid these amounts can result in individuals missing out on opportunities to purchase their desired home.
3.61 These amendments provide an earlier time for individuals to satisfy the scheme requirements. Individuals can now enter into a contract to purchase or construct their home as long as they have applied for and received a First Home Super Saver determination, and have applied for a valid request for release under that determination within 14 days of entering into the contract. Individuals do not have to wait for the administrative release process to finalise and receive their released amount before they can enter into a contract to purchase or construct their home.
3.62 Individuals that do not apply for a First Home Super Saver determination before signing a contract for the purchase or construction of their home do not meet the adjusted requirements of the scheme.
3.63 Individuals can notify the Commissioner that they have satisfied the requirements of the First Home Super Saver Scheme if the following conditions are met:
- the Commissioner has issued to the individual a First Home Super Saver determination;
- the individual has made a valid request to the Commissioner to release an amount of superannuation in respect of that determination;
- the individual enters into a contract to purchase or construct a CGT asset that is a residential premises located in Australia within the following period:
- beginning 14 days prior to the day the individual made a valid request for release to the Commissioner; and
- ending within 12 months (or a later time approved by the Commissioner) after the time the valid request for release was made to the Commissioner;
- the price for the purchase or construction of the premises is at least equal to the sum of the amount to be released that is stated in the valid request for release;
- the individual has occupied the premises, or intends to occupy it as soon as practicable; and
- the individual intends to occupy the premises for at least 6 of the first 12 months that it is practicable to occupy the premises.
[Schedule 4, item 79, subsection 313-35(1) of ITAA 1997]
Example 3.1 Purchase of first home under the First Home Super Saver Scheme Amee contributes $5,000 in personal voluntary contributions to her superannuation fund over the course of a year. She applies for and receives a First Home Super Saver determination. Amee signs a contract to purchase her first home and three days later requests a release under the First Home Super Saver scheme.Previously, Amee would have been required to recontribute any amount released under the First Home Super Saver scheme to her superannuation fund to avoid paying First Home Super Saver tax. This is because Amee signed a contract before the First Home Super Saver amount was released to her. However, under these amendments Amee would not be required to recontribute these amounts, or pay the First Home Super Saver tax. This is because she has satisfied the requirements as she signed the contract within 14 days of requesting a valid release authority.Amee requests a First Home Super Saver release authority within 14 days of signing the contract, and her superannuation fund complies with the release request. Amee then uses the amount released in the settlement of her home.
3.64 The Bill also includes consequential amendments as a result of changing the timing requirements for entering into a contract to purchase or construct a home. [Schedule 4, items 80, 81, 82, subsection 313-40(1), paragraph 313-50(1)(c), and the Note to subsection 313-50(1) of ITAA 1997]
3.65 The amendments apply in relation to valid requests made to the Commissioner to release an amount in respect of a First Home Super Saver determination made on or after 1 July 2018. [Schedule 4, subitem 111(1)]
3.66 The amendments do not apply unless the contract to purchase or construct a CGT asset that is a residential premises to which the valid request relates is entered into on or after 1 July 2018. [Schedule 4, subitem 111(2)]
3.67 Applying the amendments in this way will result in the changes having a retrospective application. However, this retrospective application is appropriate because it is wholly beneficial to individuals who will have more time and flexibility to meet the requirements of the First Home Super Saver Scheme. The changes ensure that individuals who have a determination, made a valid request for release from the Commissioner and enter into a contract to purchase or construct their home on or after 1 July 2018 will satisfy the requirements of the First Home Super Saver Scheme.
Removing rules for transitioning to the SIS Act
3.68 Schedule 4 to the Bill removes or amends a number of transitional provisions that were included in the SIS Act when it was enacted.
3.69 These provisions assisted the move by superannuation funds that were previously regulated, and eligible for tax concessions, under the Occupational Superannuation Standards Act 1987 (OSSA 1987) to the regulatory regime introduced by the SIS Act in 1993.
3.70 The main provisions that are repealed by these amendments are the transitional rule contained in section 50 of the SIS Act. [Schedule 4, item 100, section 50 of the SIS Act]
3.71 Subsection 50(1) deemed a fund to be a registered superannuation fund (RSF) if it lodged an election under section 19 of the SIS Act late. This rule allowed late lodging funds to be treated as an RSF from the start of the 1994-95 income year until the time they actually lodged the election.
3.72 Subsection 50(2) contains another transitional rule that applied to funds that chose not to elect to become regulated under section 19 of the SIS Act, and instead chose to wind up. The rule allowed such funds to have regulated status from the start of the 1994-95 income year until the time they wound up. This transitional rule also required a fund to make a declaration under section 333 of the SIS Act, which was repealed in 2001(meaning that it has not been possible to apply subsection 50(2) since that time).
3.73 As the transition to the SIS Act occurred 25 years ago, the transitional rules in section 50 have no prospective application. The previous operation of the transitional rules contained in section 50 is not affected by the repeal because the repeal applies on a prospective basis only.
3.74 To qualify for the either of the transitional rules in section 50, a fund was required to satisfy the 'transitional superannuation fund conditions' in the Superannuation Industry (Supervision) (Transitional Provisions) Regulations 1993 (the Transitional Regulations), which were made under subsection 50(5) of the SIS Act. The repeal of section 50 means that these regulations are no longer required, subject to the amendments made to paragraphs 42(1AC)(e) and 42A(4)(d) also in Schedule 4 to the Bill.
3.75 Other provisions of the SIS Act that refer to the transitional superannuation fund conditions contained in the Transitional Regulations are amended to replace the reference to the regulations made under section 50 with a reference to the regulations as they applied under the former section. [Schedule 4, items 97 and 99, paragraphs 42(1AC)(e) and 42A(4)(d) of the SIS Act]
3.76 Subsection 42(1AC) contains a special rule to provide complying fund status to funds that purported to make an election under 19(4) to become an RSF but failed to comply with a requirement for making the election. Subsection 42A(4) contains an equivalent provision to subsection 42(1AC) that applies to self-managed superannuation funds.
3.77 Such a fund can retain its historic complying status if it actually complies with the requirements within 28 days of being notified of the failure. To retain complying status, the fund must not have contravened a regulatory provision during the period between the purported election and notification, or if it has contravened, the Regulator considers it reasonable for it to retain its complying fund status.
3.78 An additional requirement in paragraphs 42(1AC)(e) and 42A(4)(d) applies to pre-1994-95 funds. These provisions require that such funds must have been treated as having satisfied the transitional superannuation fund conditions at all times during the period that began at the beginning of their 1994-95 income year and that ended when the trustee purported to have lodged the election under subsection 19(4).
3.79 Although unlikely, it is technically possible that a pre-1994-95 fund that transitioned over to the SIS Act could still discover that it had not satisfied the requirements for making the election.
3.80 To ensure that paragraphs 42(1AC)(e) and 42A(4)(d) apply correctly to any funds that may seek to apply them in the future, the amendments preserve the operation of the Transitional Regulations that were made under section 50 in respect of the pre-lodgement period.
3.81 Consequential amendments are made to remove references to section 50 in other provisions in the SIS Act. The amendments remove the reference to paragraph 50(1)(c) from the definition of 'reviewable decision' in subsection 10(1) and repeal the note to subsection 42(1AD) (which referred to subsection 50(2)). [Schedule 4, items 95 and 98, paragraph (fa) of the definition of 'reviewable decision' in subsection 10(1) and the note in subsection 42(1AD) of the SIS Act]
3.82 Schedule 4 also repeals subsections 19(7) and (8) of the SIS Act to repeal the requirement for a compliant pre-SIS Act fund to become an RSF at or before the start of its 1994-95 income year. [Schedule 4, item 96, subsections 19(7) and (8) of the SIS Act]
3.83 These provisions have no ongoing application as any pre-SIS Act funds have either made the transition to the SIS Act or were wound up.
3.84 The amendments in Schedule 4 do not affect the operation of section 49 of the SIS Act, which extends the operation of any notices about complying or non-complying status for superannuation funds, approved deposit fund and pooled superannuation trusts under the OSSA 1987 to the SIS Act. Complying status under SIS Act for a given income year is based on the existence or non-existence of compliance and non-compliance notices to determine whether such entities have complying status.
Notification by suppliers of residential premises
3.85 Subsection 14-255 in Schedule 1 to the TAA 1953 requires an entity that makes a supply to which section 14-250 applies to provide the recipient of the supply with a notice setting out certain matters. The notice must contain the information in paragraph 14-255(1)(b), which is intended to assist the purchaser with making the payment to the ATO.
3.86 Currently, subparagraph 14-255(1)(b)(i) requires an entity to provide the name of the supplier and their ABN. However, in some cases, the name of the supplier and the entity that is liable to pay GST in relation to the supply will not be the same. For example, the supplier may be part of a GST group in which a representative member is nominated as being liable to pay GST in relation to all supplies made by entities in the group, rather than the entity that makes the supply.
3.87 To assist the purchaser with identifying who is ultimately liable to GST on the supply, and therefore who the payment to the ATO should be made in relation to, the amendment to subparagraph 14-255(1)(b)(i) refers to the person who is liable to pay the GST on the supply, rather than the entity that made the supply. [Schedule 4, item 105, subparagraph 14-255(1)(b)(i) in Schedule 1 to the TAA 1953]
3.88 The amendment applies in relation to supplies that are made on or after the commencement of Part 2 of the Schedule. [Schedule 4, subitem 111(3)]
Refund by Commissioner of amount withheld from payment in respect of a supply of real property
3.89 Section 18-85 of the TAA 1953 allows the Commissioner of Taxation to provide a refund of a section 14-250 withholding payment to the entity that made the supply where there has been an error in the payment and the entity has lodged an application for a refund in the approved form. This section applies wherever a payment has been made under section 14-250, or purportedly under that section, in relation to a 'taxable supply'.
3.90 Where a payment is made purportedly under section 14-250, the supply to which the purported payment relates may not be a taxable supply. For example, if it is of existing residential premises, then that supply will be input taxed and not a taxable supply. To remove doubt that a payment can be made in relation to a purported payment under section 14-250 where the supply to which it relates is later discovered not to be a taxable supply, Schedule 4 to the Bill removes the word 'taxable' from the section. [Schedule 4, items 106 and 107, section 18-85 (heading) and paragraph 18-85(1)(a) in Schedule 1 to the TAA 1953]
3.91 The amendments apply in relation to supplies that are made on or after the commencement of Part 2 of the Schedule. [Schedule 4, subitem 111(3)]
Machinery provisions applying to administrative penalties under Subdivision 14-E
3.92 Division 298 in Schedule 1 to the TAA 1953 contains the general machinery provisions for collection, recovery and review of all other penalties contained in that Schedule.
3.93 The amendment updates section 298-5 to ensure administrative penalties imposed under Subdivision 14-E in Schedule 1 to the TAA 1953 are covered by Division 298. The machinery provisions in relation to those penalties are procedural laws which apply from the time of commencement of this Schedule. [Schedule 4, item 110, paragraph 298-5(c) in Schedule 1 to the TAA 1953]
3.94 Schedule 4 to the Bill amends the ITAA 1936 to correct a misplaced comma in section 23AH. [Schedule 4, item 68, subsection 23AH(2) of the ITAA 1936]
3.95 Schedule 4 also removes certain provisions in the SIS Act that provide their effect ceases on 1 July 1994. [Schedule 4, items 101 to 104, sections 382 to 385 of the SIS Act]
Part 3-Amendments commencing 28 days after Royal Assent
3.96 Schedule 4 to the Bill amends section 15 of the ABS Act to update the rules for appointing a person to act as the Australian Statistician (the Statistician).
3.97 The amendments repeal the previous rules and replace them with provisions that allow the Treasurer or another Minister in the Treasury portfolio to, by written instrument, appoint a person to act as the Statistician. Such appointments can be made during a vacancy of the office of Statistician or during any or all periods that the Statistician is absent from duty or from Australia, or is unable to perform the duties of the office. [Schedule 4, item 112, section 15 of the ABS Act]
3.98 The previous acting arrangements required a decision by the Governor-General in Council. This approach was out of step with modern drafting practice and standard government procedure where acting appointments for statutory offices are generally made by a Minister.
3.99 The new rules adopt the standard form for acting arrangements and are subject to sections 33AB and 33A of the Acts Interpretation Act 1901.
3.100 The new rules do not replicate previous subsection 15(4) of the ABS Act, which extended sections 10 and 11 of the ABS Act (which are about resignation and removal from office) to acting appointments. However, sections 10 and 11 continue to apply to acting arrangements because of subparagraph 33A(1)(e)(ii) of the Acts Interpretation Act 1901 (which extends the operation of any Acts to an appointee as if the appointee were the holder of the office).
3.101 The amendments also provide a transitional rule to preserve the operation of any instrument made under the previous rules for appointing a person to act as the Statistician. Under this transitional rule any such instrument continues in force, and may be dealt with, as if it had been made under the new rules provided by these amendments. [Schedule 4, item 113]
3.102 Allowing the instrument to be dealt with as though it had been made under the new rules provides the Minister with the authority to terminate any acting arrangements that were made under the previous rule at the same time that new acting arrangements are made under the new rules.
Part 4-Amendments commencing on 1 January 2019
Transitional arrangements for the professional standards reforms
3.103 Schedule 4 to the Bill amends the application provisions for the reforms inserted by the Professional Standards of Financial Advisers Act. These reforms require certain financial advisers ('relevant providers') to comply with new education, training and professional standards. Special transitional arrangements apply to relevant providers who are authorised to provide advice on 1 January 2019 ('existing providers').
3.104 The Bill corrects a section reference in the definition of 'existing provider' in section 1546A. The definition inserted by the Professional Standards of Financial Advisers Act excludes advisers who are banned, disqualified or suspended under Division 8 of Part 7.6 on 1 January 2019. However, Division 8 of Part 7.6 only covers banning and disqualifications, not suspensions. Advisers per se are not suspended. ASIC may suspend a financial adviser's Australian Financial Services Licence under section 915C of Corporations Act 2001 but in this case the adviser is generally also banned or disqualified. [Schedule 4, item 114, definition of 'existing provider' in section 1546A of the Corporations Act 2001]
3.105 Persons subject to an enforceable undertaking to not provide financial product advice or a financial service under section 93AA of the ASIC Act are also excluded from the definition of an 'existing provider'. This reflects the fact that enforceable undertakings to not provide advice may be used as an alternative to banning. [Schedule 4, item 114, definition of 'existing provider' in section 1546A of the Corporations Act 2001]
3.106 The Bill also amends the application provisions in sections 1546C and 1546D. The drafting of these application provisions in the Professional Standards of Financial Advisers Act created a potential loophole for persons who had been relevant providers before 1 January 2016 but were not relevant providers between 1 January 2016 and 1 January 2019. These persons could become relevant providers without complying with either the new standards or the transitional arrangements. The amendments in the Bill close this potential loophole. [Schedule 4, items 115 and 116, paragraphs 1546C(1)(a) and (b) and section 1546D of the Corporations Act 2001]
3.107 Finally, the Bill repeals section 1546Z. Section 1546Z required all advisers who are banned, disqualified or suspended to lodge a notice when they completed their professional year. This section is redundant because section 922D already requires all persons to lodge a notice when the person becomes a relevant provider (that is, a person who is authorised to provide advice and meets certain other requirements). A person who is banned or disqualified ceases to be authorised to provide advice. Therefore they must already lodge a notice under section 922D when they are authorised again. [Schedule 4, item 117, section 1546Z of the Corporations Act 2001]