Stephen Jones (Whitlam, Australian Labor Party, Shadow Assistant Treasurer) Share this | Hansard source

It is my unenviable task to excite the House, at 5.20 pm on a Wednesday afternoon, about the subject matter of the Treasury Laws Amendment (2021 Measures No. 6) Bill 2021. It's a herculean task, but I think it's one that I am good for. The bill implements a number of Treasury law changes which Labor supports, most notably a new mechanism for the sharing of superannuation information through the family law system. I'll have more to say about that shortly, but first to other details of the bill that warrant some comment.

Schedule 1 implements the government's commitment from 2019 to amend the income tax law to ensure that no tax is payable on refunds of large-scale generation certificate shortfall charges. These measures will apply to all such refunds from 1 January 2019. Let me say that again: it's a 2019 commitment—that's two years ago. If anything is more symbolic of this government's utter legislative incompetence than a minor Treasury commitment being legislated nearly two years after the commitment was given, then I do not know what is.

It enjoys our support. It enjoyed our support when it was last brought before the House, but, for reasons best known to the government, they didn't proceed with it. But it will enjoy our support again this evening. The measure is sensible; it will ensure that the market for large-scale generation certificates works as was intended, rewarding companies for meeting their renewable energy commitments.

Schedule 2 doubles the value of the civil penalties available under the industry code provisions of the Competition and Consumer Act 2010. Again, it's worth noting that we've seen this measure before in a bill that the government has chosen not to proceed with. We supported it then. When it was last introduced, it had a few fatal flaws and the government claimed that this measure was a response to misconduct in the franchising sector—in particular, that it was a response to the Parliamentary Joint Committee on Corporations and Financial Services' inquiry into that sector. That committee made a very clear and unequivocal bipartisan recommendation to increase penalties substantially—not just to double them, but to increase them to the greater of $10 million, or three times the benefit obtained from the contravention of the code, or 10 per cent of annual turnover. For noncorporations, natural persons, the maximum civil penalty available will be $500,000.

Appropriate penalties in the franchising code are necessary to provide a strong deterrent against breaches of the code across the sector, bearing in mind that most of the people who are victims of malfeasance in this sector are small businesses. They're in a very weak position when it comes to the head franchisor, particularly large multinational franchisors. The embarrassing thing for the government when they brought it to the parliament the last time, in a previous form, was that it didn't do what they said it was going to do. And they certainly didn't do what the PJC's bipartisan committee recommended that they do. We moved amendments and the government rejected those amendments back then. I'm very pleased to say that some common sense has filtered through in the intervening period.

Let's look at schedule 3, because it reduces the regulatory burdens on self-managed superannuation funds and other small funds by removing a redundant requirement for superannuation trustees to obtain an actuarial certificate when calculating exempt current pension income where all members of the fund are fully in retirement phase for the entire income year. It's a sensible measure. If we think about, it's a redundant requirement upon those self-managed superannuation funds if, indeed, everyone is already in the pension phase for the entirety of that year.

It is worth noting that the government only seems interested in removing red tape measures such as this from the self-managed superannuation funds and small funds when the vast majority of Australians have their super in large funds. This government's approach, particularly over the course of last year, has been to go in the opposite direction. Once we had a Treasurer who used to celebrate, with the same enthusiasm that a group of labourers would celebrate a public holiday, something called 'Red Tape Reduction Day'. Back then, when he was the Assistant Treasurer, red-tape reduction was a cause for celebration. Now that he's the Treasurer he's piling on the red tape! He can't get enough of it—you've never found a bloke who loves red tape as much as this guy! He's an enthusiast for it. I have to say that Labor is in full support of this measure. We only wish that the Treasurer were as enthusiastic about reducing red tape in one part of the superannuation sector as he is at piling on the red tape in other parts of the superannuation sector. We wait in vain.

Schedule 4 of the bill makes a number of technical and minor amendments to the Competition and Consumer Act 2010 to provide what I would describe as legal certainty to industry codes of conduct established under that act. To explain to members of the House who are fascinated by these matters, the current regulation-making power does not explicitly extend to regulating the third parties that assist in the administering or regulating functions of those codes. This omission was never intended when the law was passed and these amendments will remove the unintended ambiguity by clarifying that these third-party roles are recognised and valid under the relevant industry codes. Again, a sensible measure, and we will support it.

Let's go to schedule 5, because, in our view, it's the most important schedule of this bill. It deals with family law and superannuation measures. When one party is not forthcoming with their superannuation assets in a family law separation, there can be significant issues in relation to the equitable division of the assets of the marriage. This schedule amends the Family Law Act 1975 and the Taxation Administration Act 1953 to allow parties to family law proceedings in the Federal Circuit and Family Court of Australia, and the Family Court of Western Australia, which has its own separate jurisdiction, to apply to the Family Court registry to request information from the Australian Tax Office that will assist them to identify their former partner's superannuation interests.

These amendments also set out measures to protect this information from access by unauthorised parties outside of the specific context of permitted family law proceedings. To make that plain and simple, if the parties obtain that information, presumably through their legal representatives, that information can only be used for the subject matter of the dispute before the court or the conciliation proceedings leading up to a determination of that matter before the court. They cannot be used for some irrelevant and unrelated ancillary purpose. That is right and proper. These amendments are intended to alleviate the financial hardship and negative impact on retirement incomes from separation.

It's worth noting that superannuation—because of the landmark reforms introduced by the Hawke and Keating governments in the early 1980s, and then again in the mid-1990s—is now either the first or the second largest asset of a marriage. Whether it be the house, or the house and superannuation, superannuation is now either the largest or the second largest asset of a marriage. It's absolutely critical. For a lot of low-income couples, particularly if they're in the early stages of their marriage and there's a lot of debt on the mortgage, the joint superannuation can be the largest asset of the marriage. So it's absolutely critical to ensure that there is full disclosure of these assets in order to achieve an equitable distribution of assets in the regrettable circumstances of a marriage breakdown.

I should say that these provisions should not be needed. If the law was operating as it was intended, and I'll go through why, and if society was operating in the way that I'm sure every fair-thinking member of this place and this parliament would think it should operate, then these measures should not be needed. But, regrettably, they are.

We already have laws which require the full disclosure of superannuation assets during family separations. The Family Law Act 1975 is unambiguous that superannuation is to be incorporated as a part of any property agreement or order of a court. It's pretty black and white. There's no ambiguity. Powers are granted to courts for how superannuation is to be assessed, and the law allows separating spouses to apply to a court to split super in much the same way as they can with respect to any other trust fund. It even provides for a maximum 12-month prison sentence for those who provide false or misleading information regarding their superannuation assets during those separation proceedings.

Yet, clearly, this regime is not working. Multiple inquiries before this parliament have been told a similar story by all those who are working in the family law area—by representatives, by women's legal centres around the country—which is that the current provisions are not working. Indeed, not only is the current regime failing to bring full transparency to separation proceedings; advocates tell me it is in fact allowing unscrupulous operators to make life even harder for their ex-partners. An ex-spouse can be sent on a costly and time-consuming wild-goose chase that can delay a family law matter for many months, if not years, and add thousands and thousands of dollars to the legal and administrative costs associated with that separation.

In relation to tracking down hidden super assets—despite the clear, unambiguous legal obligation to disclose—as of now, the only way to put test to the information or to provide the respondent or the applicant with some capacity to get access to information not provided is to go on a wild-goose chase. The only means to track down hidden super assets is to write to individual funds, one by one, and ask them to divulge the relevant information. Sometimes they require directions or orders from the court to assist them in this process. Needless to say, this is a bit like looking for a needle in a haystack, given that there are literally hundreds of funds where savings could be. Whether they be funds regulated by APRA or funds regulated by the ATO, there can be literally hundreds, if not thousands, of these funds to which inquiries would need to be made. Spouses in search of super are faced with a choice of either going to mediation or court without a complete picture of their ex's assets, or spending lots of time and money trying to track the information down, with no guarantee of success. The truth is that, right now, if you wanted to do the wrong thing by your ex-partner, it's almost laughably easy to do. That is not fair, and that is not right.

In the main, as evidence has been adduced before this place, it's the men who have the most to gain and therefore are more active in this space, because their superannuation balances are going to be larger than those of their ex-partners. If you look at the data, the best available data on this shows that a woman's average superannuation balance at retirement is about $118,000—I should say the median is $118,000. For a male, the equivalent is about $188,000 at retirement. There's a big gap, a significant gap. Another job of work needs to be done is to close that gap. But you can see there is a very strong interest in the male party to the separation proceedings not to be forthcoming in the disclosure. I should interrupt myself to say that the overwhelming majority of men do the right thing. The overwhelming majority of parties to these separation proceedings do the right thing and want to do the right thing. But there are a significant number who don't, and therefore remedial legislation is needed.

We've spoken many times about the superannuation gap and how that impacts on women's retirement incomes. But, if you want a real and practical example of how it manifests in the undermining of economic security for women who separate later in life, you only need look at how this rolls out in separation proceedings. They have less money in their own superannuation account, and they are in a much weaker position when it comes to getting fair access to the assets of the marriage in their partner's superannuation account.

This bill has a long, long history in finding its way before this House. When the history of this government is written, this bill will not be a central matter to that story. But it is emblematic of a lot things, particularly in respect of this Prime Minister. It's worth saying a few things about that history. Back in 2017, the then financial services minister and former member for Higgins, Kelly O'Dwyer, announced the government was going to make the ATO super data available to family law proceedings on 24 July 2017. I'll say that again: on 24 July 2017. In fact, if you accessed a copy of the press release that the minister released in July 2017, you could've been forgiven for thinking that the law had already been changed and it had been done retrospectively. If you read the text of the press release, it reads as if the change had already been made in 2017.

Clearly, the then minister for financial services was fighting an uphill battle to get the support of her own cabinet and her own party room to make this bill a priority and move it through the House. If you like, it became the subject of a whole heap of goings on that the previous parliament was subject to and the instability within their party room, and it's perhaps emblematic of the way that the coalition parties dealt with these matters of women's equity, on which a great deal has been said. I think it's emblematic of what's been going on from the time that the then member for Cook, the then Treasurer, who was in a very influential position to prioritise this matter, put his arm around the then Prime Minister and said he was ambitious for him but the very next day was undermining him in his own party room and deposing him.

Mr Morton interjecting—

The minister at the table asks how it's relevant. It's relevant to this point. There have been many women from the minister's own party who've said it is almost impossible for female members of the coalition parties to get their voices heard and to get their issues treated seriously. It is almost impossible. It is so difficult, indeed, that you've had female members of the coalition parties resign and join the crossbench or believe that it was so difficult indeed that they—

Mr Morton interjecting—

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