Kim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

I table a revised explanatory memorandum relating to the Corporations Amendment (Corporate Reporting Reform) Bill 2010 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—

Appropriation (Parliamentary Departments) Bill (No. 1) 2010-2011

The total appropriation sought through Appropriation (Parliamentary Departments) Bill (No. 1) 2010-2011 is $222.1 million.

An additional appropriation of $46.8 million is proposed to fund asset replacement in 2010-11 and an additional $18.3 million is provided to improve the security of Parliament House, including changes to the main public car park.

Details of the proposed appropriations are set out in the Schedule to the Bill.

I commend the Bill to the Senate.

Appropriation Bill (No. 1) 2010-2011

Appropriation Bill (No. 1) 2010-2011, together with Appropriation Bill (No. 2) 2010-2011, is one of the principal pieces of legislation underpinning the Government’s Budget.

Appropriation Bill (No. 1) 2010-2011 seeks authority for meeting the expenses of the ordinary annual services of Government.

This Bill seeks approval for appropriations from the Consolidated Revenue Fund totalling $71.9 billion.

Details of the proposed appropriations are set out in Schedule 1 to the Bill, the main features of which were outlined in the Treasurer’s Budget speech on 11 May 2010.

I commend the Bill to the Senate.

Appropriation Bill (No. 2) 2010-2011

Appropriation Bill (No. 2) 2010-2011 seeks approval for appropriations from the Consolidated Revenue Fund totalling $9.54 billion.

The Budget appropriation Bills reflect changes to the appropriations framework introduced by the Government under Operation Sunlight. These changes are outlined in the Introduction to Budget Paper No. 4 and the Explanatory Memoranda.

Details of the proposed appropriations are set out in Schedule 2 to the Bill, the main features of which were outlined in the Budget Speech delivered by my colleague, the Treasurer, earlier this evening.

I commend the Bill to the Senate.

Corporations Amendment (Corporate Reporting Reform) Bill 2010

Today I introduce a bill which will amend the Corporations Act 2001 to improve Australia’s corporate reporting framework by reducing unnecessary red-tape and regulatory burden on companies, improving disclosure requirements and implementing a number of other important refinements to the corporate regulatory framework.

Australia has a robust and generally well-regarded financial reporting framework; however, opportunities do exist to cut red-tape in several areas. The reforms contained in this bill will ensure that Australia’s financial reporting framework remains strong and in line with world’s best practice.

The bill will establish a tailored financial reporting regime for small companies limited by guarantee. These entities predominantly serve a not-for-profit purpose and include sports and recreation organisations, community service organisations and education related institutions.

The proposed amendments introduce a three-tiered differential reporting framework exempting small companies limited by guarantee from reporting and auditing requirements, and providing other companies limited by guarantee with streamlined assurance requirements and simplified disclosures in the directors’ report. This will significantly reduce the regulatory burden on small companies limited by guarantee.

Some types of companies limited by guarantee will have a higher level of public interest due to the nature of their activities. Charities, for instance, generally fall within this category because of their public fundraising activities and the significant amount of community involvement. Such factors need to be considered when differentiating between companies limited by guarantee for reporting purposes. That is why companies that are deductible gift recipients will continue to prepare a financial report, irrespective of whether they fall above or below the threshold.

These measures will ensure that larger companies, or those that seek tax deductible donations from the public, are still subject to appropriate levels of transparency and accountability.

This, in turn, will ensure that appropriate governance standards are maintained, particularly in cases where there is a need for greater public accountability due to the size or nature of the company limited by guarantee.

The process for companies limited by guarantee to distribute annual reports to their members will also be streamlined. Companies will only be required to provide copies of their financial reports if a member elects to receive a copy.

Companies limited by guarantee will also be prohibited from paying a dividend, as their corporate structure means that they are not suited for conducting for-profit activities which could legitimately warrant the payment of dividends to members.   This prohibition from paying a dividend applies only to companies limited by guarantee incorporated on or after commencement of the Bill.  This avoids prejudicing any existing arrangements such companies may have in place.

The bill will also streamline parent-entity reporting. Parent entities will be relieved of the requirement to prepare financial statements for both the parent entity and the consolidated group. Instead the bill will allow companies to disclose summary parent-entity financial information. The Corporations Regulations will specify the supplementary information about the parent entity that is to be included in a note to the consolidated financial statements.

In addition, the bill relaxes the statutory requirement that companies may only pay dividends from profits, replacing the profits test with a more flexible solvency based requirement. This test will allow a company to pay a dividend if:

• the company’s assets exceed its liabilities and the excess is sufficient for the payment of the dividend;
• it is fair and reasonable to the company’s shareholders as a whole; and
• it does not materially prejudice the company’s ability to pay its creditors.

The new test is designed to ensure that creditors and shareholders who are not entitled to dividends are sufficiently protected. Consequentially the bill contains amendments to the income tax law to ensure there is no change to taxation arrangements as a result of the reform.

In addition the bill facilitates an easier change of a company’s balance date by allowing a financial year subsequent to the first year to last for a period less than 12 months.

In order to enhance the transparency and utility of disclosures contained in the directors’ report, the bill extends the requirement to disclose a review of operations and financial conditions to all listed entities. This follows the recommendation of the Corporations and Markets Advisory Committee’s report The social responsibility of corporations and will provide stakeholders with an overview which would enable users to understand the performance of a business and the factors underlying its results and financial position.

The bill also refines the statement of compliance with International Financial Reporting Standards (IFRS) contained in the directors’ declaration. This will enhance international recognition of Australia’s IFRS adoption and allow Australia to realise the full benefits to foreign investment that IFRS provides.

Other amendments contained in the bill include:

• clarifying the circumstances in which a company can cancel its share capital;
• removing obsolete provisions in the Australian Securities and Investments Commission Act 2001 relating to certain functions of the Financial Reporting Council; and
• improving the Companies Auditors and Liquidators Disciplinary Board processes, including by extending immunities for pre-conference hearings and improving the appointments process.

In summary, these reforms will reduce unnecessary red tape and regulatory burden on companies, improve disclosure requirements and implement a number of other important refinements to Australia’s corporate reporting framework.

The Ministerial Council for Corporations was consulted in relation to the amendments to the laws in the national corporate regulation scheme, and has approved them as required under the Corporations Agreement.

Financial Sector Legislation Amendment (Prudential Refinements and Other Measures) Bill 2010

The Financial Sector Legislation Amendment (Prudential Refinements and Other Measures) Bill 2010 continues the legislative amendments made by the Government to improve the efficiency and operation of a range of financial sector legislation.

The Bill contains amendments to 17 Acts and repeals 5 redundant Acts.

Financial sector legislation plays a critical role in protecting the financial well-being of the Australian community.  The legislation is administered by several regulators including the Australian Prudential Regulation Authority, the Australian Securities and Investments Commission, the Reserve Bank of Australia, and the Australian Taxation Office.

The Bill is largely the result of a review of the prudential regulatory framework by APRA and Treasury.  This review identified amendments necessary to strengthen APRA’s ability to effectively fulfil its mandate.  This is consistent with developments overseas where countries such as the UK and the US, have sought to review and strengthen their financial regulatory frameworks.

APRA is the prudential regulator of the Australian financial services industry. It oversees banks, credit unions, building societies, general insurance and reinsurance companies, life insurance, friendly societies, and most members of the superannuation industry.  These institutions hold approximately $3.6 trillion in assets for 22 million Australian depositors, policyholders and superannuation fund members.

APRA is also responsible for the administration of the Financial Claims Scheme and acts as the national statistical agency for the financial sector.

APRA is funded largely by the industries that it supervises through annual levies imposed on regulated entities.

Outline of measures in the Bill

The Bill covers five key areas of reform.

Firstly, it amends the prudential regime by strengthening APRA’s powers to prevent prudential concerns arising and to address them should they arise.

Secondly, it amends the Financial Claims Scheme to facilitate APRA’s administration of the scheme and improve the scheme’s operation.

Thirdly, it amends the Financial Sector (Collection of Data) Act 2001 to promote the harmonisation and flexibility of the data collection and publishing regime, and APRA’s role as the central repository for the collection of financial data.

Fourthly, it amends the financial sector levies framework to improve the methodologies governing the determination of levies.

Finally, the Bill repeals 5 redundant Acts as part of the Government’s commitment to continuously clean up red tape.

Preventive Powers

Powers to engage in early preventive action are essential to maintaining confidence and stability in the financial sector.

This is recognised internationally and by the Government.

The ability for APRA to actively supervise financial sector institutions is a critical factor to successfully preventing prudential concerns arising.  Likewise, it is crucial that APRA is able to effectively set minimum standards for entry into financial markets and that only fit and proper people fulfil key roles within institutions.

The Bill enhances all these aspects of the prudential regime.

The Bill ensures that APRA can better supervise financial sector institutions by addressing potential gaps and uncertainty in the present legislation. 

These gaps may presently prevent prudential standards from applying to general insurance groups, incorporating documents by reference, and from providing for important matters relating to the protection of depositors and policyholders.  They may also prevent regulators from investigating financial institutions during winding up, from being able to access key records held by institutions, and from continuing an authorisation in-effect upon revocation.

These gaps need to be closed in order to ensure that APRA can fulfil its mandate in relation to prudential regulation and financial system stability.

Equally, Australians deserve to be confident that financial institutions have met the minimum standards set by APRA and that they are run by ‘fit and proper’ persons.

At present, APRA may only set minimum criteria for entry into regulated markets by guidelines.  The Bill will enable APRA to set such standards by legislative instruments, which provide legal certainty.

The Bill also assists regulators in ensuring that key persons within financial institutions are fit and proper to hold their positions by responding to the High Court’s decision in Rich v ASIC.  The amendments prevent these persons from refusing to provide information to the regulator or Court on the grounds that doing so may expose them to disqualification under prudential laws.

Persons subject to disqualification under these laws are in a position of considerable responsibility with respect to the assets of others and the stability of Australia’s financial system.  It is therefore appropriate that the Court’s decision be responded to in a manner similar to that which has already been enacted in the corporations and trade practices contexts.

It is also appropriate that the regulatory regime applying to auditors and actuaries be harmonised.  At present, the regime is unjustifiably inconsistent between APRA administered Acts and other laws.  The Bill addresses these inconsistencies by amending the various laws to adopt a more coherent approach.  It also ensures that key provisions relating to interference with audits exist in the prudential context as they presently do under the Corporations Act.

Corrections power

It cannot be assumed, however, that the prudential regime can prevent prudential concerns from ever arising.  As such, it is also necessary to ensure that APRA has effective powers to correct concerns should they arise.

Directions powers are a key tool at APRA’s disposal for doing so.  They enable APRA to specify how an entity should address prudential concerns where less direct means have failed.

At present, however, there is uncertainty as to several aspects of APRA’s directions powers.  For example, it is uncertain whether the powers enable APRA to direct a foreign bank branch to address concerns about inappropriate intra-entity transactions.  There is also the possibility that the provision of external support to an authorised deposit-taking institution, such as Government assistance, might prevent some direction powers from being able to be used.

The Bill addresses these and other uncertainties.  By doing so, it strengthens APRA’s ability to act quickly and decisively to protect depositors, policyholders and the financial system.

Failure management powers

Prudential regulation in a market economy cannot have a ‘no failure’ objective. Recognising this, APRA currently has a range of powers to manage and resolve failure should it occur.

The importance of these powers in protecting depositors and policyholders and maintaining confidence in the financial system is self evident.  It is therefore of the upmost importance to ensure that they are effective and sufficient for the task.

To this end, the Bill strengthens APRA’s failure management powers.

The amendments increase the effectiveness of the statutory and judicial management regime.  In particular, they ensure that APRA can obtain necessary information and assistance from a judicial manager and enhance APRA’s information gathering powers during statutory management.  They also clarify provisions relating to the appointment of statutory and judicial managers and their powers.

The Bill also enhances APRA’s compulsory transfer powers.  APRA currently has powers to compulsorily transfer any aspect of the business of an ADI and the regulated business of a life insurer in appropriate circumstances.  The amendments enable the powers to operate in relation to both life and general insurers in a similar way to which they presently apply to ADIs.

Another important reform ensures that APRA has power to direct a distressed ADI or insurer to recapitalise.  It is not currently clear whether a power to require recapitalisation exists outside of statutory or judicial management.  The amendments ensure that APRA can issue a recapitalisation direction in circumstances where it is not desirable to first place the entity into statutory or judicial management.  For example, where doing so would undermine confidence in the financial system or the ability of the entity to raise the necessary capital.

Financial Claims Scheme

The Bill amends the Financial Claims Scheme provided for in the Banking and Insurance Acts.

The Scheme provides depositors in Australian-incorporated ADIs with a guarantee of their deposits to a threshold prescribed by regulations.  In addition, it provides compensation to eligible policyholders with claims against a failed general insurer.

It is important that the Scheme’s operation is clear, consistent and able to be effectively administered by APRA.  This Bill ensures this.

The amendments enable APRA to settle claims and issue forms with respect to common administrative matters under the Insurance Act.  They also ensure that all relevant policyholders are covered by the Scheme and clarify its operation in particular circumstances. 

In addition, the amendments ensure that APRA can obtain the information and assistance it requires to administer the Scheme from liquidators and judicial managers.

Data collection regime

The Bill amends the Financial Sector (Collection of Data) Act to promote the harmonisation and flexibility of the data collection regime and APRA’s role as the central repository for the collection of financial data.

The Bill includes five key reforms in this respect.

First, it ensures that APRA can collect data under the Act to assist it administer the Financial Claims Scheme and to assist the Minister and other agencies perform their functions.

Second, it enables APRA to collect data from an expanded class of financial sector entities on direction from the Minister to ensure all relevant data can be collected.

Third, it ensures that APRA does not have to consult when preparing reporting standards where the resulting delay may have a detrimental effect on financial system stability.

Fourth, it protects confidential information in reporting standards from disclosure in circumstances where disclosure may detrimentally affect the stability of the financial system or institutions, and the requested data is required urgently by APRA.

Finally, it ensures that APRA can require all data collected under the Act to be audited.

Amendments to the financial sector levies framework

The Bill improves the methodologies governing the determination of financial sector levies.

The 2009 Report of the Review of Financial Sector Levies made several recommendations to improve the levies regime.  In particular, it recommended that the regime be amended so that a levies base other than assets may be used in appropriate circumstances.  It also recommended that the date for determining the levy payable by a new superannuation entity should be the date it became regulated rather than as at 30 June of the previous financial year.

The amendments give effect to these recommendations and related matters.

Repeal of Acts

The Bill repeals 5 redundant Acts relating to the validation of past financial sector levy determinations.

The Government is committed to better regulation and reducing red-tape.

Leaving redundant legislation on the books increases the cost for business by making it harder to identify which rules apply.  It also increases the probability of inconsistent or overlapping rules.

Consultation

An exposure draft of the Bill was released for public consultation on 19 January 2010.  In response, a number of submissions relating to the Bill were received.  The majority of these submissions either supported or had no major concerns with the Bill.

[As required by the Corporations Agreement 2002, the Ministerial Council for Corporations was also consulted on, and has approved the amendments in the Bill to the national corporate regulation scheme.]

Conclusion

This Bill improves the overall effectiveness of Australia’s prudential regulatory regime.  Importantly, it makes amendments to the regime to enhance APRA’s ability to prevent prudential concerns arising and to respond to them should they arise.  It provides APRA with the tools it needs to protect the wellbeing of Australians from distress in the financial system.

It also enhances the Financial Claims Scheme and the data collection and financial sector levies regimes.

National Health Amendment (Continence Aids Payment Scheme) Bill 2010

I am pleased to introduce the National Health Amendment (Continence Aids Payment Scheme) Bill 2010.

The Bill delivers on the 2009-10 Budget commitment to introduce the Continence Aids Payment Scheme.

The CAPS will assist people who have permanent and severe incontinence to meet some of the costs of their continence products through a direct payment.

It replaces the current Continence Aids Assistance Scheme  which provides continence products through a Government agreement with a sole supplier. 

The Bill will enable the formulation of a legislative Scheme under which the Commonwealth will make direct cash payments as a contribution towards the cost of buying products that manage incontinence.

Medicare Australia will transact the payments on behalf of the Department of Health and Ageing, the Department will retain policy authority for the new Scheme.  

Importantly, the Bill includes transition arrangements for clients of the current Scheme to the new Scheme from 1 July 2010. 

The Bill also ensures adequate transparency and accountability by enabling the review of decisions made under the Scheme, including via the Administrative Appeals Tribunal, as well as by allowing the Secretary of the Department of Health and Ageing, or the Medicare Australia CEO, to audit payment arrangements by requesting information about CAPS eligibility or payment(s).

This power will enable prompt investigation into any claims of ineligibility or improper use of funds.

Failure to comply with a request for information will be an offence under the National Health Act 1953, which provides a deterrent to behaviour which may be contrary to the intent of the new Scheme.

Consistent with the Government’s 2009-10 Budget announcements, the program will be funded by a special (standing) appropriation enabled under section 137 (1) of the National Health Act 1953. 

This is particularly important in the context of an eligibility based, demand driven program.

Subject to the passage of the Bill through Parliament, the new Continence Aids Payment Scheme  arrangements will take effect from 1 July 2010 .

Conclusion

As I mentioned, I am very pleased to be able to introduce this Bill and the change to the continence product supplier market that the introduction of the new Scheme represents.

I am also pleased to deliver on an important Budget Measure.

The Continence Aids Payment Scheme promotes consumer choice and control which is consistent with the Government’s Consumer Rights and Responsibilities Charter for Community Care, released in 2009,

And which is also promoted in the Commonwealth’s aged care programs through the Aged Care Act 1997.

As a result of the successful passage of the Bill, recipients under the scheme will have greater flexibility and choice in where they purchase their continence products. 

Product suppliers and service providers will have equitable access to the client base, in an open and competitive market.

The Department of Health and Ageing will continue to work closely with the sector and recipients of the scheme over the coming months to ensure a smooth transition to the new arrangements.

Tax Laws Amendment (2010 GST Administration Measures No. 3) Bill 2010

The Bill amends the A New Tax System (Goods and Services Tax) Act 1999 to progress GST reforms announced in the 2008-09 and 2009-10 Budgets aimed at simplifying and streamlining the administration of the GST. 

The amendments in Schedule 1 provide that the transport of goods by subcontractors within Australia that forms part of the international transport of those goods by another entity from or to Australia is taxable, unless the supply of transport is made to a non-resident that is not in Australia. 

The amendments reduce compliance costs and address the inconsistent treatment of international transport applying to postal and non-postal goods under the existing GST law.  These amendments apply from 1 July 2010. 

The amendments in Schedule 2 ensure that supplies of global roaming services provided to visitors to Australia remain not subject to GST, consistent with Australia’s treaty obligations under the International Telecommunication Regulations also known as the Melbourne Agreement.

Until December 2005 these international telecommunication supplies were not considered to be taxable under the Australian GST law.  However, the Commissioner of Taxation then determined that these supplies were taxable.  Therefore it is necessary to amend the GST law to ensure that the treatment of these supplies remains consistent with the Melbourne Agreement.

These amendments apply from 1 July 2000, the commencement date of the GST.  This retrospective application benefits suppliers, as the change is consistent with the existing industry practice of not applying GST to the relevant supplies. 

The amendments in Schedule 3 ensure that the appropriate GST outcome is achieved in situations where there are payments between parties in a supply chain which indirectly alter the price received or paid for the thing that is supplied but where certain parties in the supply chain are members of the same GST group, GST religious group or GST joint venture.

This measure arose from recent changes to the GST law which take effect on 1 July 2010.  The effect of these changes is to create adjustments to apply in situations where a taxpayer supplying things for resale makes a monetary payment to a third party in the supply chain in connection with the third party’s acquisition of the thing.

The amendments will apply to third party payments made on or after 1 July 2010.

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

Territories Law Reform Bill 2010

The Territories Law Reform Bill implements significant reforms to improve the governance of Norfolk Island and strengthen the accountability of the Norfolk Island Government. 

The Bill does this by amending the Norfolk Island Act 1979 to reform the electoral system and establish a contemporary financial management framework to assist the Norfolk Island Government to meet the expectations of its community and to plan for the future. 

The Bill also amends administrative law legislation to strengthen the transparency and accountability of the Norfolk Island Government and public sector. The amendments will extend the application of the Administrative Appeals Tribunal Act 1975, the Freedom of Information Act 1982 and the Privacy Act 1988 to Norfolk Island.  In addition, amendments to the Ombudsman Act 1976 and the Norfolk Island Act will make the Commonwealth Ombudsman the Ombudsman for Norfolk Island.

Finally, the Bill will amend the Christmas Island Act 1958 and the Cocos (Keeling) Islands Act 1955 to provide a vesting mechanism for powers and functions under Western Australian laws applied in the Territories. 

Background to the Norfolk Island Reforms

The Norfolk Island reforms were announced by the Australian Government in May 2009.  They follow in the wake of a large number of Commonwealth Parliamentary and