Purpose of the Bill

The Treasury Laws Amendment (2020 Measures No 4) Bill 2020 contains four separate and unrelated ‘streamlining and integrity measures’.[1]

Structure of the Bill

The Bill comprises four Schedules:

• Schedule 1 amends the Income Tax Assessment Act 1997 (ITAA97) to make refunds of large‑scale generation shortfall charges non-assessable non-exempt (NANE) income for income tax purposes
• Schedule 2 amends the Treasury Laws Amendment (Putting Consumers First—Establishment of the Australian Financial Complaints Authority) Act 2018 to facilitate the closure and transitional arrangements associated with the Australian Financial Complaints Authority (AFCA) replacing the Superannuation Complaints Tribunal (SCT)
• Schedule 3 amends the Competition and Consumer Act 2010 (CCA) to increase the maximum amount for civil penalties under an Industry Code and
• Schedule 4 amends the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Coronavirus Omnibus Act) to extend the temporary mechanism for responsible Ministers to change arrangements for meeting information and documentary requirements under Commonwealth statutes.

Structure of this Bills Digest

As the matters covered by each of the Schedules are independent of each other, the relevant background, stakeholder comments (where available) and analysis of the provisions are set out under each Schedule number.

Committee consideration

Senate Economics Legislation Committee

The Bill was referred to the Senate Economics Legislation Committee for inquiry. Details of the inquiry are at the Inquiry homepage.

The Committee reported on 26 November 2020 and recommended that the Bill be passed.[2]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) commented on aspects of the measures set out in Schedules 3 and 4 of the Bill.[3] Those comments are canvassed under the relevant heading below.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[4]

Schedule 1

Background

The Large-scale Renewable Energy Target (LRET) creates a financial incentive for the installation of renewable energy power stations, such as wind and solar farms, or hydro-electric power stations.[5] Under the Renewable Energy Target, liable entities are required to surrender large-scale generation certificates (LGCs) in proportion to the electricity they acquire in a year.[6] The LRET aims to meet the annual target for renewable electricity set out in the Renewable Energy (Electricity) Act 2000 (REE Act).[7] For 2020 the renewable power percentage is 19.31 per cent.[8] This means liable entities (generally electricity retailers) are required to surrender approximately
33.7 million LGCs to meet their LRET obligations for 2020.[9]

One LGC is created for each megawatt hour of eligible renewable electricity produced.[10] These can then be sold to liable entities (typically electricity retailers) who then surrender these certificates to the Clean Energy Regulator, allowing them to demonstrate their compliance with the renewable power target. This also provides an additional source of revenue to the power station in addition to the sale of the electricity generated.[11]

If a liable entity does not surrender sufficient certificates for a particular period, they must pay a charge for this renewable energy ‘shortfall’.[12] If the entity surrenders additional certificates within, broadly, three years of paying the charge (section 95 of the REE Act), they may apply to have this charge refunded. The refund is paid under section 98 of the REE Act. The tax treatment of this refund is currently unclear.

Key issues and provisions

At present, the tax treatment of refunds of renewable energy shortfall charges is unclear.

To address this, Schedule 1 proposes to amend the Income Tax Assessment Act 1997 (ITAA97) to include proposed section 59-100 to the end of Division 59. Division 59 broadly contains a number of sections which categorise certain types of income as non-assessable, non-exempt income (NANE income).[13]

Proposed subsection 59-100(1) states that a payment to an entity under section 98 of the REE Act is not assessable income and is not exempt income. The effect of an amount being NANE income is:

• the amount is tax-free (that is, it is not assessable income and therefore not taxed)[14]
• outgoings incurred in deriving the amount are not deductible[15] and
• the amount is not taken into account when calculating the amount of a deduction allowable for a tax loss.[16]

In relation to the above, the Thomson Reuters’ Australian Tax Handbook notes:

Exempt income is not counted in working out taxable income, but is counted in reducing prior year tax losses that can be deducted in the current year and in reducing tax losses carried forward to later years. In other words, exempt income will reduce a taxpayer’s tax losses before they can be used to offset assessable income. In contrast, NANE income is not counted in working out taxable income and, unlike exempt income, has no effect on tax losses. NANE income therefore truly has no effect on a taxpayer’s liability for income tax.[17] [emphasis added]

Deduction permitted

As noted above the general deduction rules in section 8-1 of the ITAA97 provides that an entity cannot normally deduct losses or outgoings incurred in gaining NANE income.[18] Proposed subsection 59-100(2) states that proposed subsection 59-100(1) should be disregarded for the purpose of determining whether an entity can deduct expenditure that it incurs in relation to large-scale generation certificates. This ensures that entities that incur an expense to gain a refund of a shortfall amount are not taxed on the income required to purchase large-scale generation certificates, thereby undermining the benefit to the company and reducing the effectiveness of the certificate market.

According to the 2019–20 Mid-Year Economic and Fiscal Outlook measure:

Legislating to ensure that no tax is payable when companies receive a refund of their shortfall charge will enable the market for renewable energy certificates to work as intended, meeting targets for clean energy while ensuring affordable electricity for consumers.[19]

In response to the Government’s announcement of the measures, the Clean Energy Regulator indicated it had no objection to the changed tax treatment, and stated that ‘the use of shortfall is a commercial decision that allows liable entities to shift demand and take advantage of lower forward LGC prices in time of tight liquidity’.[20]

The Australian Taxation Office (ATO) has indicated the measures ‘will enable the market for renewable energy certificates to work as intended’, but noted that entities must self-assess under the existing law at the time.[21] As such, the ATO notes on its website that an entity that understates a liability prior to the law being implemented may leave that entity liable to general interest charges or shortfall interest charges on the shortfall. However, the ATO further notes that this would only apply after consideration of whether such penalties would be an efficient, effective and ethical use of the ATO’s limited resources for ensuring compliance.

Stakeholder comments

At the time of writing no stakeholders appeared to have commented on the measure proposed by Schedule 1 of the Bill.

Financial implications

The Explanatory Memorandum to the Bill states that the measure is expected to have a cost to revenue of $70 million over four years from 2019–20.[22]

Schedule 2

The Australian Financial Complaints Authority (AFCA) was created by the Treasury Laws Amendment (Putting Consumers First—Establishment of the Australian Financial Complaints Authority) Act 2018 (AFCA Act) as a ‘one stop shop’ external dispute resolution scheme for complaints about superannuation. Prior to the introduction of AFCA, there were a number of extant dispute resolution schemes with overlapping jurisdictions, including the Superannuation Complaints Tribunal (SCT).[23]

As outlined in the Explanatory Memorandum to the Bill, the AFCA Act received royal assent on 5 March 2018 and AFCA has operated since 1 November 2018.[24] Under the AFCA Act, the Superannuation (Resolution of Complaints) Act 1993 (and consequentially the SCT) is to be wound up within four years of the AFCA Act receiving royal assent. The last date for this is 5 March 2022.

The second schedule to the Bill facilitates the closure of the SCT and transitional arrangements involved with moving existing complaints from the SCT to the AFCA. The transitional arrangements are clearly explained in the Explanatory Memorandum and are consistent with the intended windup originally introduced in the AFCA Act.

Schedule 3—industry code penalties

Regulatory framework

‘An industry code is a code regulating the conduct of participants in an industry in their dealings with each other or towards consumers, whether mandatory or not.’[25] Part IVB of the CCA provides the framework for industry codes—including but not limited to, the Franchising Code of Conduct.

Within Part IVB, section 51ACB provides that ‘a corporation must not, in trade or commerce, contravene an applicable industry code’. For example, if a franchisor fails to provide disclosure documents as required by the Franchising Code of Conduct, it will be in breach of the Code and, correspondingly, in breach of the CCA.

The High Court has held that a failure to comply with an industry code does not necessarily render an agreement void for illegality and therefore unenforceable.[26] Rather, the remedies available for a breach of an industry code include injunctions,[27] damages[28] and other remedial orders,[29] including third party redress.[30] The Australian Competition and Consumer Commission (ACCC), which enforces compliance with industry codes, can issue a public warning notice for likely breaches of a code[31] or use its random audit power to inspect documents or records required to be kept pursuant to a prescribed industry code.[32]

Subsection 51AE(1) of the CCA provides that regulations may prescribe an industry code, or specified provisions of an industry code, for the purposes of Part IVB of that Act. In addition, subsection 51AE(2) provides that where regulations have prescribed an industry code then the code may prescribe pecuniary penalties not exceeding 300 penalty units for civil penalty provisions of that industry code.

The effect of subsection 51AE(2) is to allow each relevant industry code to identify civil penalty provisions and to impose civil penalties of up to 300 penalty units, being equivalent to $66,600.[33]

Franchising

The franchising sector is an important contributor to the Australian economy. There are over 1,300 franchises operating in Australia and around 97,000 franchisees, which are predominantly made up of small and family businesses. They have a turnover in excess of $182 billion revenue and employ over 594,000 people.[34]

The regulation of franchising has been subject to regular scrutiny over the years.[35] A voluntary industry code was introduced in February 1993, followed by a mandatory code of conduct in 1998.[36] Following multiple reviews of the sector the Competition and Consumer (Industry Codes—Franchising) Regulation 2014 (Franchising Code of Conduct) was introduced with effect from January 2015.

Committee inquiry into franchising

On 22 March 2018, the Senate referred an inquiry into the operation and effectiveness of the Franchising Code of Conduct to the Parliamentary Joint Committee on Corporations and Financial Services (Joint Committee).[37]

The Joint Committee handed down its report entitled Fairness in Franchising on 14 March 2019. The report made 71 recommendations to improve the operation and effectiveness of the franchising sector.[38]

Relevant to this Bills Digest, the Joint Committee identified the problems of the existing penalty regime associated with the Franchising Code of Conduct.

For too long, some breaches have either not attracted a penalty, or the penalty amounts have been derisory. The committee is firmly of the view that the lack of consequences for breaching the Franchising [Code] … undermines the ACCC's ability to ensure compliance with the codes. Where penalties are manifestly insufficient, franchisors are likely to factor the risk of a penalty into the cost of doing business. Where penalties are unavailable or not applied, there is no incentive for a franchisor to comply with the codes.[39]

The Joint Committee recommended that the Franchising Taskforce consider amendments to the CCA and the Franchising Code of Conduct so that:

• civil pecuniary penalties (and, thereby, infringement notices) be made available for all breaches of the Franchising Code of Conduct
• the quantum of penalties available for breach of the Franchising Code of Conduct … be significantly increased to ensure that penalties are a meaningful deterrent, such as to at least reflect the penalties currently available under the Australian Consumer Law[40] and
• ensuring that the penalties for a breach of the Franchising Code of Conduct are prescribed in legislation, so that the limit on penalties under industry codes in subsection 51AE(2) does not apply to franchising.[41]

Stakeholder comments

This recommendation was consistent with the information provided to the Joint Committee by the Australian Competition and Consumer Commission (ACCC).[42]

However, other stakeholders—in particular, the Franchise Council of Australia (FCA)—opposed the ACCC's recommendations on increasing the number and level of penalties in the Franchising Code. The FCA argued that the current penalty regime is correctly tailored in terms of the Franchising Code provisions and the quantum of penalties.[43]

Inter-agency Franchising Taskforce

The Joint Committee also recommended that the Australian Government establish an inter-agency Franchising Taskforce to examine the feasibility and implementation of a number of the committee's recommendations.[44]

Consistent with this recommendation, the Taskforce was established, and an issues paper was circulated for comment by stakeholders.[45] The Taskforce did not publish responses to the Issues Paper on the basis that confidentiality would ‘encourage broad participation from the franchising sector’.[46]

The Government formally responded to the Joint Committee recommendations in August 2020.[47] The Government noted that ‘the framework for industry codes should support regulatory compliance, enforcement and appropriate consistency’.[48] Relevant to this Bills Digest, the Government stated that it would amend the CCA to increase the maximum civil pecuniary penalty available for a breach of an industry code from 300 penalty units to 600 penalty units.[49]

Key issues and provisions

Item 1 in Schedule 3 to the Bill repeals the reference to 300 penalty units in subsection 51AE(2) and inserts a reference to 600 penalty units, so that it will provide that an industry code prescribed by the regulations ‘may prescribe pecuniary penalties not exceeding 600 penalty units for civil penalty provisions of the industry code’.[50] Contrary to the recommendation by Joint Committee, this effectively caps the penalty for a breach of a franchising industry code.

Scrutiny of Bills Committee comments

The Scrutiny of Bills Committee noted that the Bill amends the CCA to prescribe a maximum civil penalty of up to 600 penalty units, but took the view that ‘significant matters, such [as] civil penalty provisions with high penalties, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided’.[51]

Although the Explanatory Memorandum to the Bill confirms that the changes to penalties for breaching industry codes have been made in response to the report of the Joint Committee (as outlined above) the Scrutiny of Bills Committee drew Senators’ attention to the provision—but leaves it to the Senate as a whole the appropriateness of allowing civil penalty provisions with penalties of up to 600 penalty units to be included in delegated, rather than primary, legislation.[52]

Financial implications

According to the Explanatory Memorandum to the Bill, the amendment in Schedule 3 to the Bill will have no financial impact.[53]

Schedule 4

Background

The Coronavirus Omnibus Act contains a suite of measures implemented by the Government in response to the coronavirus.[54] Amongst other things, it provides a temporary mechanism for responsible Ministers to change arrangements for meeting information and documentary requirements under Commonwealth legislation in response to the challenges posed by COVID‑19.[55]

Current law

Currently Schedule 5 of the Coronavirus Omnibus Act applies in relation to a provision (called an affected provision) of an Act or a legislative instrument that requires or permits any of the following relevant matters:

• the giving of information in writing
• the signature of a person
• the production of a document by a person
• the recording of information
• the retention of documents or information
• the witnessing of signatures
• the certification of matters by witnesses
• the verification of the identity of witnesses and
• the attestation of documents.[56]

Under Schedule 5, a responsible Minister for an affected provision may determine by legislative instrument any of the following:

• an affected provision is varied as specified in the determination in relation to a period specified in the determination
• an affected provision does not apply in relation to a period specified in the determination or
• an affected provision does not apply, and that another provision specified in the determination applies instead, in relation to a period specified in the determination.[57]

The responsible Minister must make such a determination only if he, or she, is satisfied that the determination is in response to circumstances relating to the coronavirus known as COVID-19.[58]

According to the Explanatory Memorandum to the originating Bill:

The social distancing measures and the restrictions on movement and gatherings introduced in response to the Coronavirus are expected to cause difficulties with meeting information and documentary requirements under Commonwealth legislation.

In recognition of the importance of continued business transactions and government service delivery during the Coronavirus, this measure provides flexibility to temporarily adjust legal obligations and provide certainty about the appropriate ways to meet information and documentary requirements.[59]

The provisions of Schedule 5 are stated to have no operation after 31 December 2020.[60] Further, the provisions of Schedule 5 were intended to be automatically repealed at the end of 31 December 2020.[61]

Key issues and provisions

Item 1 of Schedule 4 to this Bill repeals and substitutes subitems 1(7) and 1(8) of Schedule 5 to the Coronavirus Omnibus Act.

Under proposed subitem 1(7) a determination by the responsible Minister operates until item 1 is repealed by proposed subitem 1(8). Proposed subitem 1(8) extends this measure until the later of:

• 31 March 2021 or
• a day that is determined by the Minister administering the Electronic Transactions Act 1999 (called the designated Minister).[62]

Importantly, the designated Minister must not determine a date later than 31 March 2021 unless he, or she, is satisfied that the determination is in response to circumstances relating to the coronavirus known as COVID-19.[63]

Scrutiny of Bills Committee comments

The Scrutiny of Bills Committee noted the operation of the Bill and expressed its concern about:

… enabling delegated legislation to override or modify the operation of legislation which has been passed by Parliament as such clauses impact on the level of parliamentary scrutiny and may subvert the appropriate relationship between the Parliament and the Executive. [64]

Noting the contents of the Explanatory Memorandum to the Bill in relation to the proposed amendments, the Scrutiny of Bills Committee expressed its continuing concern:

… that proposed item 2 of Schedule 5 would allow the minister to extend the operation of the modification power beyond 31 March 2021, without the need to amend the primary legislation. The committee does not consider that a desire for flexibility is a sufficient justification for such an approach, particularly noting that Parliament has resumed a regular sitting schedule which would enable a bill to extend the operation of the modification provision to be considered by the Parliament in a timely manner.[65]

The Committee requested the Assistant Treasurer’s advice as to whether the Bill could be amended ‘to remove the ability of the minister to, by legislative instrument, extend the operation of the modification power in Schedule 5 of the Act beyond 31 March 2021’.[66]

Financial implications

According to the Explanatory Memorandum to the Bill, the amendments in Schedule 4 to the Bill will have no financial impact.[67]