Senate

Treasury Legislation Amendment (Application of Criminal Code) Act (No. 3) Bill 2001

Second Reading Speech

Senator Heffernan (Parliamentary Secretary to Cabinet)

I table revised explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows-

Family Law Legislation Amendment (Superannuation) (Consequential Amendments) Bill 2001

The Family Law Legislation Amendment (Superannuation) (Consequential Provisions) Bill 2001 will make amendments to relevant tax legislation to ensure that appropriate tax treatment is applied to superannuation interests which will be split pursuant to the Family Law Legislation Amendment (Superannuation) Act 2001. The Family Law Legislation Amendment (Superannuation) Act is another landmark in the Howard Government's ongoing reform of family law.

Under the Act, couples will for the first time be able to divide their superannuation interests on marriage breakdown in the same way as their other assets.

This Consequential bill will amend the Income Tax Assessment Act 1936 so that:

·
the non-member's entitlement will be treated as a separate eligible termination payment;
·
the undeducted contributions, concessional, post-June 1994 invalidity, CGT exempt components and the untaxed element of the post-June 1983 component will be split on a proportionate basis to the overall split; and
·
the non-member spouse's benefit will be assessed separately against his or her own reasonable benefit limit.

The Consequential Bill will also amend the Income Tax Assessment Act 1997 so that:

·
capital gains or losses that may arise from the creation or forgoing of rights when spouses enter into a binding superannuation agreement or where the agreement comes to an end will be disregarded;
·
the current CGT exemption for payments made from a superannuation fund or an approved deposit fund will be extended to non-member spouses; and
·
CGT rollover relief will apply to in-specie transfers between funds with fewer than five members.

In addition, the Consequential Bill will amend:

·
the Small Superannuation Accounts Act 1995 to provide for accounts held within the Superannuation Holding Accounts Reserve (SHAR) to be split;
·
the Superannuation Contributions Tax (Assessment and Collection) Act 1997 to ensure that, if a surcharge assessment is issued after a split but in respect of a period prior to the split, then the fund that holds those surchargeable contributions for the member spouse will be liable to pay the surcharge. If no fund holds those surchargeable contributions for the member spouse, then the member spouse will be liable to pay the surcharge;
·
the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection) Act 1997 to that ensure payments to a non member spouse will trigger payment of the surcharge debt account by an unfunded defined benefit scheme (or the member in a constitutionally protected fund) if the benefit payment would have triggered payment of the debt account if made to the member spouse;
·
the Superannuation (Unclaimed Money and Lost Members) Act 1999 to apply the same protection and rights to the non-member spouse that are currently given to the member spouse; and
·
the Family Law Act 1975 to widen a regulation making power inserted in that Act by the Family Law Legislation Amendment (Superannuation) Act, and also to make some other minor consequential amendments.

Full details of the measures in this bill are contained in the explanatory memorandum.

Treasury Legislation Amendment (Application of Criminal Code) Bill (No. 3) 2001

The purpose of this bill is to make consequential amendments to certain offence provision in the legislation administered by the Treasurer to reflect the application of the Criminal Code Act 1995 to existing offence provisions from 15 December 2001.

The bill is the last of the portfolio bills on this subject and proposes consequential amendments to the Corporations Act 2001, the Financial Sector Shareholdings Act 1998, the Insurance Contracts Act 1984,and the Commonwealth Places (Mirror Taxes) Act 1998.

The Treasury Legislation (Application of Criminal Code) Act (No.1) 2001 has passed the Parliament and made amendments to the Financial Sector Shareholdings Act 1998, Foreign Acquisitions and Takeovers Act 1975, Insurance Act 1973, Life Insurance Act 1995, Prices Surveillance Act 1983, Productivity Commission Act 1998, Retirement Savings Accounts Act 1997, Superannuation Industry (Supervision) Act 1993 and aspects for the Trade Practices Act 1974, which did not require consultation with the States. This bill also contains some minor consequential amendments of the Treasury Legislation (Application of Criminal Code) Act (No.1) 2001.

The Treasury Legislation (Application of Criminal Code) Bill (No.2) 2001 has previously been introduced and would make amendments to the range of taxation legislation, the Superannuation (Resolution of Complaints) Act 1993 and aspects of the Trade Practices Act 1974 that required consultation with the States.

This bill provides for amendments that clarify the physical elements of an offence and corresponding fault elements (where these fault elements vary from those specified by the Code) and specify whether an offence is one of strict or absolute liability. In the absence of such an amendment, offences previously interpreted as being one of strict or absolute liability would be interpreted as not being one of strict or absolute liability. In addition, any defences to an offence are being re-stated separately from the words of the offence. Use is being made of this opportunity to convert penalties expressed as dollar amounts to penalty units.

The amendments to the Trade Practices Act 1974 in this bill make a technical amendment to the penalties for a contravention of the consumer protection provisions. The amendments do not change the status of the offences but simply ensure that the penalties that currently apply will continue to apply following the application of the Criminal Code.

The bill does not change the criminal law. Rather, it ensures that the current law is maintained following application of the Criminal Code Act to Commonwealth legislation.

Debate (on motion by Senator O'Brien) adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.