Chapter 1Introduction
1.1On 4 July 2024, the Senate referred the Tax Laws Amendment (Incentivising Food Donations to Charitable Organisations) Bill 2024 (Food Donations Bill) to the Senate Economics Legislation Committee for inquiry and report by 15November 2024.
1.2The Food Donations Bill was introduced for the first time in the Senate on 2July2024. The bill is a private senator’s bill, as it was proposed by Senator Dean Smith, and not a minister.
1.3The bill would amend the Income Tax Assessment Act 1997 and the Income Tax (Transitional Provisions) Act 1997 to introduce a tax offset for companies for particular expenditure that they incur when donating food to registered charities.
Background and purpose of the bill
1.4In his second reading speech, Senator Smith suggested that the bill incentivises ‘companies to donate surplus food to food relief charities by providing them with a tax offset in relation to the expenses they incur’. He flagged the widely-acknowledged cost-of-living crisis, noting that many ‘Australians who have never before experienced food stress’ are experiencing food insecurity. Further:
Australia domestically produces enough food to feed the country three times over, yet it is reported that 7.6 million tonnes of food are being wasted each year.
This both costs the economy an estimated $36.6 million annually and deprives those in need of what is largely edible food.
In fact, about 70% of discarded food is fit for consumption, but is generally being thrown away because it is cheaper than finding other alternatives—including donating it to food relief charities.
That is precisely why this Bill, which makes relatively minor amendments to the Income Tax Assessment Act 1997 and Income Tax (Transitional Provisions) Act 1997, is being introduced.
1.5The original model that the bill is based upon was developed initially by Foodbank Australia, and then modelled for its economic impact by KPMG Australia. Senator Smith informed the Senate that the model proposed by the bill ‘has subsequently been built upon in close consultation with Australian charities and other impacted sectors’.
What the bill proposes
1.6The bill proposes that certain companies be provided with a tax offset for particular expenditure incurred when donating food to registered charities, by adding a new Division 419 to the Income Tax Assessment Act 1997. To be eligible for the tax benefit, companies must:
be constitutional corporations, meaning ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’ or ‘a body corporate that is incorporated in a Territory’, as defined in section 51(xx) of the Constitution and section 995-1 of the Income Tax Assessment Act 1997;
be engaged in donating or selling food to registered charities, or providing services to charities that relate to food donations; and
have a receipt from those charities.
1.7If a company receives payment for its food donation activities, it can only claim the shortfall between the payment and the costs incurred.
1.8The tax offset would be refundable for companies with an aggregated turnover of less than $20 million; otherwise, the offset would be non-refundable. A refundable tax offset means an offset that can reduce the amount of tax that a company (or individual) is liable to pay to zero, resulting in a refundable amount.
1.9The tax offset would cover the cost incurred by the company in its food donation activities for an income year. It would be capped at either $5 million or a percentage of the food donation costs, whichever is lower. The percentage would be based on the company’s aggregated turnover:
For companies with a turnover of less than $20 million, the percentage would be a refundable offset of 45 per cent of costs incurred.
Companies with a turnover of $20 million or more but less than $50 million would be eligible for a non-refundable offset of 40 per cent of costs incurred.
Companies with a turnover of $50 million or more would be eligible for a non-refundable offset of 30 per cent of the costs incurred.
1.10‘Food donation activities’, as prescribed in proposed subsection 419-15, would include a company donating or selling food that is fit for human consumption to a registered food charity, or providing services for the registered food charity in connection with those activities, or other activities prescribed by the regulations.
1.11For the purposes of the bill, eligible expenditure incurred includes:
the production, manufacturing, harvesting or purchase of food that the company would donate or sell to the charity;
storage of food donated or sold to the charity;
transport of food donated or sold to the charity; and
any other expenditure prescribed by the regulations.
1.12General business overheads, including salaries, insurance, travel, visas, marketing and financing, are excluded from eligible expenditure.
1.13The bill proposes that an independent review be undertaken within three years (36 months) of the bill commencing, and within each successive period of three years. The review would:
consider the merits of the tax offset continuing; and
result in a written report provided to the Minister, with that report to be tabled within 15 sitting days of being provided to the Minister.
1.14The bill proposes that the proposed Division 419 cease to be in force three years after it commences (or, if it is extended, the day after the extension period ends).
1.15The Explanatory Memorandum states that the bill ‘does not raise any human rights issues’ and ‘is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011’.
1.16The Explanatory Memorandum does not outline the anticipated financial impact of the bill on the Australian Government’s revenue and expenditure. However, KMPG has previously estimated that the direct cost to government would be $50 to $100 million per annum for foregone revenue.
Consideration by other parliamentary committees
1.17The Senate Standing Committee for the Scrutiny of Bills had no comment to make on the Food Donations bill.
1.18Similarly, the Parliamentary Joint Committee on Human Rights had no comment to make on the bill.
Conduct of the inquiry
1.19In accordance with its usual practices, the committee advertised the inquiry on its website and wrote to relevant stakeholders and interested parties, inviting written submissions by 20 August 2024.
1.20The committee received 63 submissions, which are listed at Appendix 1.
1.21The committee held a public hearing for the inquiry in Canberra and via videoconference on 23 October 2024. The names of witnesses who appeared at the hearing can be found at Appendix 2.
Acknowledgements
1.22The committee thanks all individuals and organisations who contributed to the inquiry, especially those who made written submissions and participated in the public hearing.
Report structure
1.23This report consists of two chapters:
Chapter 1 (this chapter), which sets out the background to and purpose of the bill, what the bill proposes, the context in which private senators’ bills are proposed, and the conduct of the inquiry; and
Chapter 2, which provides an overview of issues raised in evidence, and contains the committee’s views and recommendation.