Mr ROCHER(5.13 p.m.) —I thank the Parliamentary Secretary (Cabinet) to the Prime Minister (Mr Miles). I am not sure whether he is aware of the detail of the TIA's concern, but the definition of `abnormal trading' does bear looking at. I do not think it is just a matter for judgment; I think it is a matter of equity and perhaps even of this element of the legislation operating as intended. The definition of `abnormal trading', as proposed, might lead to it being contended that the only trading which can qualify as normal trading is trading which occurs on a stock exchange and then only if the volume is within a very narrow range.

Should that be the case, the allotment of shares, however small, might be regarded as requiring that a test be made. That gets to the point, which the parliamentary secretary, I am sure, will be interested in, that allotments under employee share plans—also referred to in another schedule in this legislation—or dividend reinvestment plans might trigger these provisions. Allotment of shares, on the basis that it was abnormal, or that they might trigger the provision that it was abnormal, or on the basis that involves five per cent of the shares—although it does not alter the underlying interests at all—is part of the problem.

The width of the definitions for abnormal trading, read in conjunction with the consequences of failure to make a determination, make further inappropriate results quite likely. The determination, in fact, might not be made because the company is simply unaware of facts subsequently contended to constitute abnormal trade. That is where you get into problems, once again, with giving the commissioner discretion. The interplay—I noted the assurance of the parliamentary secretary and for which I am grateful—of ITs 2530 and 2361 is presently constituted.

The end result is that a failure to make a determination results in a failure of the tests under 160ZZS. I see that that may not be in the mind of the parliamentary secretary and, therefore, the government and is a matter of concern. I do not know if the parliamentary secretary wants to answer that or if I could go on to something slightly relevant, but in the same vein.

Mr Miles —Keep going.

Mr ROCHER —Where the capital shareholding is less than one per cent, at the end of the day, section 160ZZSQ reserves to the Commissioner of Taxation a discretion to disregard subdivisions providing special rules for holdings of less than one per cent. That strikes me as being totally inappropriate in light of the history—some of which I have touched on—referring to the commissioner's rulings under present legislation. The special rules for holdings of less than one per cent are intended to provide the basis on which the rules are saved from being unworkable.

They also provide the major criteria on which the new regime can be said to assist corporates. This section, 160ZZSQ, effectively empowers the commissioner to withdraw these features while leaving in place the various aspects of the legislation which have the effect of making changes in policy applied to the section which are adverse to taxpayers. The TIA says, in this context, that the provisions obviate the need to trace through com plying superannuation funds. It would be preferable if these provisions were excluded to foreign superannuation funds and not non-complying funds. (Extension of time granted) This will conclude my remarks under schedule 4, unless the parliamentary secretary in response raises something worthy of further comment.

The need for rulings in respect of which such rulings are necessary if the new regime is to have prospects of operating fairly are of interest. For example, there are a number of provisions which provided for the exercise of discretions on the part of the commissioner—some of which I have referred to—and I would refer the parliamentary secretary to sections 160ZZSA3B, 160ZZSC(2) and 160ZZSD(2) in addition to 160ZZSQ. It was previously understood by the TIA that rulings would be made available in relation to the exercise of various discretions as long ago as last December. That understanding was arrived at last December.

They seem to be under the impression that the rulings would specifically address matters such as the used dates reasonably approximate to 20 September 1985 and application of the old regime recognising a safe harbour where past events are not captured by the new rules. They and I urge that drafts of these rulings be made available for comment as a matter of priority and preferably while the legislation is still before the parliament, albeit the Senate.