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Monday, 30 November 2009
Page: 9611

Senator COONAN (12:24 PM) —By arrangement with the minister, I seek leave to incorporate my speech in the second reading debate.

Leave granted.

The speech read as follows—

Mr  President, I rise to speak in response to the proposed Tax Laws Amendment (2009 Measures No. 2) Bill 2009.

The Bill before us amends various taxation laws and has 3 Schedules, and at the outset I would like to state that the Coalition will be supporting the passage of this Bill.


Schedule 1 of the Bill before us in the Senate today deals with the infamous ‘Budget Night Stuff Up’, which was the government’s ill-conceived crackdown on employee share schemes, which had the legitimate objective of stopping high end revenue leakage, but was so poorly designed that it froze the industry overnight.

Originally the government informed everyone that there was a non-disclosure problem due to some taxpayers not fully disclosing their receipts on shares and options granted to them, which the government sought to fix with its raft of employee share scheme changes announced that evening.

The solution, or in reality the major stuff-up which we witnessed on budget night, forced every single employee in the country who received shares from their employer, to pay tax upfront on potential benefits which they may not receive for years, or may never receive at all.

To reflect on just how out of its depth this government was in relation to the changes which it sought to implement, we only have to hear some of the ludicrous comments from the Minister for Finance and Deregulation, who stated that the changes were needed to stop a tax rort by those “at the very big end of town”.

So in going for the kill on high-end revenue leakage the government thought it would take its ideological sword to all taxpayers.

This change not only brought the entire industry to its knees overnight, and adversely affected hundreds and thousands of Australians from all levels of employment, it took this Government over 5o days from the original budget night announcement to finally recognise their mistake.

That 5o days of uncertainty amounted to wasted time, money and resources for businesses left in the lurch, and unnecessary stress to employees who were potentially exposed to large tax bills as a result of these ill-conceived changes.

All this from an arrogant government which couldn’t be bothered to sit down and properly consult with business before bringing in such changes, evidenced through comments from Gail Hambly, company secretary of Fairfax Holdings who said, “it looks as though they haven’t a clue what they’ve done”.

Turning our attention for a moment from the government’s incompetency and actually looking at what is contained within Schedule 1 of this Bill, we can see that the original budget night announcement that removed the tax deferral option for employees who participated in an employee share scheme and limited the $1,000 upfront concession to those on taxable incomes of less than $6o,000 has been changed to more reasonable levels.

Of course this change came about in two stages. First on 5 June this year, the Treasurer announced that the income threshold would be increased from $6o,000 to $150,000, as well as the introduction of a limited deferral taxing point for schemes where there is a ‘genuine risk of forfeiture’, with a number of other changes.

Then on 1 July this year, the government wheeled the Assistant Treasurer out to inform everyone that the government had now decided to increase the income threshold from $15o,000 to $18o,000, as well as a raft of other changes all of which are now encompassed in amendments contained in Schedule 1, which implement the policy statement released by the Government on 1 July 2609.

At every stage of the employee share scheme debacle the Coalition has called on the government to fix the problem it created, and whilst the legislation before us today is by no means perfect, it is certainly preferable to the frozen mess employees and businesses were belted with back on Budget Night.

The Coalition notes that the Board of Taxation is due to provide a report on employee share schemes in February next year, as well as the tax review currently underway by Dr Ken Henry, and the Productivity Commission’s report on executive remuneration, both which are due to be handed down at the end of this year.

As explained in the outset of my address on this BM, the Coalition will not be opposing its passage through the Senate, however the Coalition acknowledges the incompetence the government has demonstrated in its handling of this issue, and the undue stress placed on employees and businesses across the country as a result of its inability to appropriately address tax reform in this area.


The second schedule of the Bill before us today deals with rules relating to non-commercial losses, which were also announced on budget night.

Non-commercial loss rules originated under the former Howard government, and were designed to address integrity issues regarding particular unprofitable activities being carried out by a small number of taxpayers.

The changes which were brought in meant that non-commercial losses were only deductible against assessable income if they met one out of the four tests, which remain in place today.

Under changes which are before the Senate today, for those with an income of $250,000 or greater, a non-commercial loss will only be deductible against assessable income if they have been granted

discretionary exemption from the Commissioner of Taxation.

Therefore under these changes before us today taxpayers with an income greater than $250,000, who wish to offset non-commercial losses will now need to apply to the Tax Commission for discretionary exemption.

I would now like to note the report which was handed down by the Senate Standing Committee on Economics on 16 November 2009, and highlight areas of concern which have been raised by Coalition Senators in relation to this schedule.

The first of those concerns relate to the nominated $250,000 income threshold, and whether or not that threshold should be indexed so that over time operators who do not fit under the threshold, are not squeezed over the line. This would be a simple adjustment to the legislation, and indeed a sensible one, as there are numerous thresholds throughout our taxation law which are in fact indexed.

Other concerns have been raised in relation to the Commissioner’s discretion, and what advice the Commissioner would take on board when granting discretionary exemption. Examples were given in the report as to various industries which developed out of hobby farms that took advantage of these non-commercial loss provisions Had such provisions not been available, some of these industries might not exist today.

Retrospectivity was another area where Coalition Senator’s have noted that they firmly believe it would be unfair to impose tax changes retrospectively. Evidence was heard to the effect that there should be time for industries and individuals to get their affairs in order, in time for the implementation date of this legislation, being 1 July 2009.

Along with these, further concerns were also raised in relation to the potential impost on rural communities, and doubts were expressed over the projected revenue expected to be raised from such changes to the deductibility of commercial losses, and whether the projected revenue targets will actually be realised.

Whilst the Coalition will not be voting against the passage of this BM through the Senate, concerns have been raised as to whether these measures may inhibit the growth of new industries from developing in the future, and Coalition Senators believe further consideration must be given to the effectiveness of this measure by comparing the projected revenue expected to be raised, against the potential economic and social costs of its implementation.


The third and final schedule contained within this Bill is basically a housekeeping measure which requires superannuation funds to transfer lost member’s superannuation to the Australian Taxation Office.

If the balance of these accounts are less than $20o and have been inactive for at least five years, and the superannuation fund is satisfied they will not be able to find the owners of the accounts, then funds are to be transferred to the ATO.


As I have noted from the outset of this Bill, the Coalition will be supporting its passage through the Senate today, however attention must be drawn toward the government’s deficiencies when it comes to policy creation.

As mentioned earlier, the bungled implementation of changes to employee share schemes, and its immediate flow on effect to Australian employees and business is only one embarrassing example of just how inept this government is when it comes to policy creation and implementation.

I hope in the future that such changes (like those we have witnessed in relation to employee share schemes) are

more prudently considered so as to not inhibit industry in the way we have witnessed this year.

I again confirm the Coalition’s support for the Tax Laws Amendment (2009 Measures No. 2) Bill 2009.

Mr President, I commend the Bill to the Senate.