Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved to these bills. I thank the Clerk. I seek leave to move the amendments together.

Leave granted.

I commend our amendments and move (1) to (23) on sheet AP218 and (1) to (11) on AP219:

(1) Clause 40-10, page 21 (after line 4), after paragraph (2) (d), insert:

(da) all of the following subparagraphs apply:

  (i) the information is the details of a warning issued to a registered entity by the Commissioner under Division 80, as mentioned in paragraph 40-5(1) (f);

  (ii) the information has the potential to cause detriment to the entity, or to an individual;

  (iii) the contravention, likely contravention, non-compliance or likely non-compliance mentioned in subsection 80-5(1) was not, or would not be, in bad faith;

  (iv) the contravention, likely contravention, non-compliance or likely non-compliance has been dealt with, or prevented, such that declining to include the information, or removing the information, would not conflict with the objects of this Act;

(2) Clause 45-5, page 23 (line 8), omit "a registered entity", substitute "an entity".

(3) Clause 45-5, page 23 (line 12), omit "registered entity's", substitute "entity's".

(4) Clause 45-10, page 23 (lines 20 to 27), omit subclauses (1) and (2), substitute:

(1) The regulations may specify standards (the governance standards) with which an entity must comply in order to become registered under this Act, and to remain entitled to be registered under this Act.

(2) Without limiting the scope of subsection (1), those standards may:

  (a) require the entity to ensure that its governing rules provide for a specified matter; or

  (b) require the entity to achieve specified outcomes and:

     (i) not specify how the entity is to achieve those outcomes; or

     (ii) specify principles as to how the entity is to achieve those outcomes; or

  (c) require the entity to establish and maintain processes for the purpose of ensuring specified matters.

(2A) Without limiting subparagraph (2) (b) (ii), the principles mentioned in that subparagraph may reflect the size of the entity, the amount and nature of contributions to the entity and the nature of the activities undertaken by the entity in pursuit of its purposes.

(5) Clause 45-10, page 23 (line 30), omit "registered entity", substitute "entity".

(6) Clause 45-10, page 23 (line 33), omit "registered entity", substitute "entity".

(7) Clause 45-10, page 24 (line 6), omit "a registered entity", substitute "an entity".

(8) Clause 45-10, page 24 (line 11), omit "registered entity", substitute "entity".

(9) Clause 45-15, page 24 (after line 22), at the end of paragraph (1) (a), add:

  (iv) the Commissioner; and

(10) Clause 45-15, page 24 (lines 25 to 31), omit subclause (2), substitute:

(2) Without limiting, by implication, the form that consultation mentioned in paragraph (1) (a) might take, consultation to which all of the following paragraphs apply is appropriate consultation:

  (a) the consultation involves consultation with the public;

  (b) the consultation involves:

     (i) notifying, directly and by advertisement, the entities mentioned in paragraph (1) (a) of the consultation; and

     (ii) inviting them to make submissions by a specified date and, where necessary, to participate in public hearings to be held concerning the proposed regulation;

  (c) the consultation is facilitated by the Commissioner.

(11) Page 25 (after line 6), at the end of Division 45, add:

45 -20 Parliamentary scrutiny of standards

Despite subsection 12(1) of the Legislative Instruments Act 2003, a provision of a regulation made for the purposes of subsection 45-10(1) of this Act does not commence until the day after the earlier of:

(a) if both Houses of the Parliament pass a resolution approving the provision—the day the resolution is passed by the second House to do so; and

(b) the last day on which the regulation could be disallowed in either House, unless:

  (i) the regulation is disallowed; or

  (ii) either House passes a resolution disapproving the provision;

on or before that day.

(12) Clause 50-5, page 27 (line 1), omit "a registered entity", substitute "an entity".

(13) Clause 50-5, page 27 (line 8), omit "registered entity's", substitute "entity's".

(14) Clause 50-10, page 27 (lines 15 to 22), omit subclauses (1) and (2), substitute:

(1) The regulations may specify standards (the external conduct standards) with which an entity must comply in order to become registered under this Act, and to remain entitled to be registered under this Act.

(2) Without limiting the scope of subsection (1), those standards may:

  (a) require the entity to ensure that its governing rules provide for a specified matter; or

  (b) require the entity to achieve specified outcomes and:

     (i) not specify how the entity is to achieve those outcomes; or

     (ii) specify principles as to how the entity is to achieve those outcomes; or

  (c) require the entity to establish and maintain processes for the purpose of ensuring specified matters.

(2A) Without limiting subparagraph (2) (b) (ii), the principles mentioned in that subparagraph may reflect the size of the entity, the amount and nature of contributions to the entity and the nature of the activities undertaken by the entity in pursuit of its purposes.

(15) Clause 50-15, page 28 (after line 4), at the end of paragraph (1) (a), add:

  (iv) the Commissioner; and

(16) Clause 50-15, page 28 (lines 7 to 13), omit subclause (2), substitute:

(2) Without limiting, by implication, the form that consultation mentioned in paragraph (1) (a) might take, consultation to which all of the following paragraphs apply is appropriate consultation:

  (a) the consultation involves consultation with the public;

  (b) the consultation involves:

     (i) notifying, directly and by advertisement, the entities mentioned in paragraph (1) (a) of the consultation; and

     (ii) inviting them to make submissions by a specified date and, where necessary, to participate in public hearings to be held concerning the proposed regulation;

  (c) the consultation is facilitated by the Commissioner.

(17) Page 28 (after line 19), at the end of Division 50, add:

50 -20 Parliamentary scrutiny of standards

Despite subsection 12(1) of the Legislative Instruments Act 2003, a provision of a regulation made for the purposes of subsection 50-10(1) of this Act does not commence until the day after the earlier of:

(a) if both Houses of the Parliament pass a resolution approving the provision—the day the resolution is passed by the second House to do so; and

(b) the last day on which the regulation could be disallowed in either House, unless:

  (i) the regulation is disallowed; or

  (ii) either House passes a resolution disapproving the provision;

on or before that day.

(18) Page 31 (after line 16), after Subdivision 60-A, insert:

Subdivision 60 -AA—Object of this Division

60 -3 Object of this Division

(1) The object of this Division is to promote:

  (a) the transparency and accountability of registered entities; and

  (b) the reduction of reporting obligations of registered entities under other Australian laws.

(2) The Division does this by requiring registered entities to provide information to the Commissioner that:

  (a) relates to this Act or the taxation law; and

  (b) the Commissioner:

     (i) will use for the purposes of this Act; or

     (ii) may pass on to other Australian government agencies, removing the need for those agencies to require the information from the registered entities; or

     (iii) will make publicly available by publishing it on the Register.

     Note 1: Other Australian laws provide that giving information to the Commissioner in accordance with this Act satisfies the reporting requirements of those laws.

     Note 2: Division 40 limits the information the Commissioner may publish on the Register.

(3) The requirements this Division places on a registered entity are proportional to the size of the registered entity.

(19) Clause 100-10, page 85 (line 26), at the end of subclause (3), add:

; and (d) setting out the effect of section 100-25 (prohibition on suspended responsible entity managing the registered entity); and

  (e) if the registered entity is a trust—setting out the effects of subsections 100-70(1) and (5) (former trustees' obligations relating to books, identification of property and transfer of property).

(20) Clause 100-15, page 87 (line 12), at the end of subclause (2), add:

; and (c) setting out the effect of section 100-25 (prohibition on removed responsible entity managing the registered entity); and

  (d) if the registered entity is a trust—setting out the effects of subsections 100-70(1) and (5) (former trustees' obligations relating to books, identification of property and transfer of property).

(21) Clause 130-5, page 104 (line 12), at the end of subclause (2), add ", including how the ACNC has promoted the objects of this Act".

(22) Clause 130-5, page 104 (after line 12), at the end of subclause (2), add:

Note: The objects of this Act include promoting the reduction of unnecessary regulatory obligations on the Australian not-for-profit sector (see subsection 15-5(1)).

(23) Clause 205-35, page 152 (line 29), at the end of paragraph (3A) (c), add "or any greater amount prescribed by the regulations for the purposes of subsection 205-25(1)".

(1) Schedule 1, Part 2, page 6 (before line 2), before item 2, insert:

Division 1—Endorsed entities

(2) Schedule 1, item 2, page 6 (line 9), after "item 3 or 4", insert "or paragraph 4D(4) (b), (5) (b) or (6) (b)".

(3) Schedule 1, items 3 and 4, page 6 (line 28) to page 8 (line 2), omit the items, substitute:

3 Health promotion charities

(1) This item applies to an entity that, on the day before the commencement day, is:

  (a) endorsed under section 123D of the Fringe Benefits Tax Assessment Act 1986 as a health promotion charity; or

  (b) endorsed under Subdivision 30-BA of the Income Tax Assessment Act 1997 as a deductible gift recipient because the entity is a fund, authority or institution covered by item 1.1.6 of the table in subsection 30-20(1) of that Act (charitable institution whose principal activity is to promote the prevention or the control of diseases in human beings).

(2) The Commissioner is treated as having registered the entity on the commencement day under Division 30 of the ACNC Act as:

  (a) the type of entity mentioned in column 1 of item 1 of the table in subsection 25-5(5) of that Act (charity); and

  (b) the subtype of entity mentioned in column 2 of item 5 of that table (institution whose principal activity is to promote the prevention or the control of diseases in human beings).

4 Public benevolent institutions

(1) This item applies to an entity that, on the day before the commencement day, is:

  (a) endorsed under subsection 123C(1) of the Fringe Benefits Tax Assessment Act 1986 as a public benevolent institution; or

  (b) endorsed under Subdivision 30-BA of the Income Tax Assessment Act 1997 as a deductible gift recipient because the entity is a fund, authority or institution covered by item 4.1.1 of the table in subsection 30-45(1) of that Act (public benevolent institution).

(2) The Commissioner is treated as having registered the entity on the commencement day under Division 30 of the ACNC Act as:

  (a) the type of entity mentioned in column 1 of item 1 of the table in subsection 25-5(5) of that Act (charity); and

  (b) the subtype of entity mentioned in column 2 of item 6 of that table (public benevolent institution).

(4) Schedule 1, Part 2, page 8 (after line 2), after item 4, insert:

Division 2—Entities endorsed for the operation of institutions

4A Scope of Division

(1) This Division applies if, on the day before the commencement day, an entity (the operator) is:

  (a) endorsed under Subdivision 30-BA of the Income Tax Assessment Act 1997 as a deductible gift recipient for the operation of one or more institutions covered by item 1.1.6 of the table in subsection 30-20(1) of that Act (charitable institution whose principal activity is to promote the prevention or the control of diseases in human beings); or

  (b) endorsed under that Subdivision as a deductible gift recipient for the operation of one or more institutions covered by item 4.1.1 of that table (public benevolent institution); or

  (c) endorsed under subsection 123C(3) of the Fringe Benefits Tax Assessment Act 1986 for the operation of one or more public benevolent institutions.

(2) This Division applies:

  (a) for the purposes of this Act (other than item 5 of this Schedule) from the day before the commencement day; and

  (b) for the purposes of the ACNC Act and the taxation law from the commencement day.

4B Institutions treated as separate entity

(1) The operator is treated as if it were 2 or 3 entities:

  (a) the entity (the non-institution sub-entity) the operator would be if it did not include the institutions; and

  (b) the entity (an institution sub-entity) the operator would be if the operator included only the institutions (if any) mentioned in paragraph 4A(1) (a); and

  (c) the entity (an institution sub-entity) the operator would be if the operator included only the institutions (if any) mentioned in paragraph 4A(1) (b) or (c).

Effect of revocation of registration of institution sub -entity

(2) From the time (if any) the Commissioner of the ACNC revokes under the ACNC Act the registration of an institution sub-entity:

  (a) paragraph (1) (a) has effect as if the reference in that paragraph to the institutions did not include a reference to the institutions included in the institution sub-entity; and

  (b) paragraph (1) (b) or (c) (whichever applies to the institution sub-entity) has no effect.

4C Non -institution sub -entity

(1) The ABN of the operator is treated as being the ABN of the non-institution sub-entity.

(2) If the operator was, apart from this Division, endorsed on the day before the commencement day as mentioned in paragraph 2(1) (a):

  (a) the non-institution sub-entity is treated, on that day, as being endorsed in that way; and

  (b) to avoid doubt, each institution sub-entity is treated, on that day, as not being endorsed in that way.

Note: Item 2 applies to that non-institution sub-entity

4D Institution sub -entities

ABN

(1) The A New Tax System (Australian Business Number) Act 1999 applies to an institution sub-entity as if the institution sub-entity were carrying on an enterprise in Australia.

(2) During the period:

  (a) starting on the commencement day; and

  (b) ending on the earlier of:

     (i) the day the Registrar of the Australian Business Register registers an institution sub-entity in the Australian Business Register; and

     (ii) 12 months after the commencement day;

paragraph 10(1) (a) of the A New Tax System (Australian Business Number) Act 1999 (entity must have applied for registration) does not apply to the institution sub-entity.

Note: Subitem (2) has the effect that the Registrar of the Australian Business Register must register the institution sub-entity in the Australian Business Register (including allocating the institution sub-entity an ABN).

(3) During that period (and without limiting item 4C), the institution sub-entity may treat the ABN of the non-institution sub-entity as being the ABN of the institution sub-entity.

Endorsements

(4) In a case to which paragraph 4A(1) (a) applies:

  (a) the endorsement mentioned in that paragraph is treated as being an endorsement of the institution sub-entity mentioned in paragraph 4B(1) (b); and

  (b) the Commissioner of the ACNC is treated as having registered the institution sub-entity on the commencement day under Division 30 of the ACNC Act as:

     (i) the type of entity mentioned in column 1 of item 1 of the table in subsection 25-5(5) of that Act (charity); and

     (ii) the subtype of entity mentioned in column 2 of item 5 of that table (institution whose principal activity is to promote the prevention or the control of diseases in human beings).

(5) In a case to which paragraph 4A(1) (b) applies:

(a) the endorsement mentioned in that paragraph is treated as being an endorsement of the institution sub-entity mentioned in paragraph 4B(1) (c); and

(b) the Commissioner of the ACNC is treated as having registered the institution sub-entity on the commencement day under Division 30 of the ACNC Act as:

  (i) the type of entity mentioned in column 1 of item 1 of the table in subsection 25-5(5) of that Act (charity); and

  (ii) the subtype of entity mentioned in column 2 of item 6 of that table (public benevolent institution).

(6) In a case to which paragraph 4A(1) (c) applies:

(a) the Commissioner of Taxation is treated as having endorsed the institution sub-entity mentioned in paragraph 4B(1) (c) under subsection 123C(1) of the Fringe Benefits Tax Assessment Act 1986 as a public benevolent institution; and

(b) the Commissioner of the ACNC is treated as having registered the institution sub-entity on the commencement day under Division 30 of the ACNC Act as:

  (i) the type of entity mentioned in column 1 of item 1 of the table in subsection 25-5(5) of that Act (charity); and

  (ii) the subtype of entity mentioned in column 2 of item 6 of that table (public benevolent institution).

ACNC Act

(7) For the purposes of the ACNC Act:

(a) the institution sub-entity mentioned in paragraph 4B(1) (b) of this Schedule is treated as being the subtype of entity mentioned in column 2 of item 5 of the table in subsection 25-5(5) of that Act for as long as each of the institutions included in the institution sub-entity is an institution whose principal activity is to promote the prevention or the control of diseases in human beings; and

(b) the institution sub-entity mentioned in paragraph 4B(1) (c) of this Schedule is treated as being the subtype of entity mentioned in column 2 of item 6 of that table as long as each of the institutions included in the institution sub-entity is a public benevolent institution.

4E Regulations

The regulations may, for the purpose of giving effect to this Division, provide for how this Schedule, the ACNC Act or the taxation law applies in relation to the non-institution sub-entity or an institution sub-entity.

Division 3—Opt -out

(5) Schedule 1, item 5, page 8 (line 8), omit "Items 2, 3, 4 and 6", substitute "Divisions 1, 2 and 4".

(6) Schedule 1, Part 2, page 8 (before line 14), before item 6, insert:

Division 4—Religious institutions

(7) Schedule 1, item 6, page 8 (line 21), after "item 2, 3 or 4", insert "or paragraph 4D(4) (b), (5) (b) or (6) (b)".

(8) Schedule 2, page 46 (after line 9), after item 44, insert:

44A Subsection 57A(1)

Omit "subsection 123C(1) or (5)", substitute "section 123C".

(9) Schedule 2, page 47 (after line 16), after item 56, insert:

56A Subsection 123C(1) (heading)

Repeal the heading.

(10) Schedule 2, items 58 and 59, page 47 (lines 20 to 25), omit the items, substitute:

58 Subsections 123C(3) to (5)

Repeal the subsections.

(11) Schedule 2, item 68, page 49 (lines 10 to 12), omit the item, substitute:

68 Paragraph 426 -5(d) in Schedule 1

Repeal the paragraph.

68A Subsection 426 -40(1) in Schedule 1 (paragraph (b) of note 1)

Omit "and (4)".

68B Subsection 426 -55(1) in Schedule 1 (paragraph (b) of the note)

Omit "and (4)".

68C Paragraph 426 -65(1 ) ( d) in Schedule 1

Repeal the paragraph.