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Wednesday, 11 November 2015
Page: 8332


Senator WHISH-WILSON (Tasmania) (16:20): Perhaps, to make it easier for Senator McGrath, I will move the Australian Greens amendments on sheet 7796, which is an omnibus that includes the various compilations of what we have seen today.

The TEMPORARY CHAIRMAN: You will need seek leave to move (1) and (2) together.

Senator WHISH-WILSON: by leave—I move Australian Greens amendments (1) and (2) on sheet 7796 together:

(1) Page 2, clause 2 (table item 1), omit the table item, substitute:

1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

2. Schedules 1 to 4

The day after this Act receives the Royal Assent.

3. Schedule 5, Parts 1 and 2

The day the Tax and Superannuation Laws Amendment (Better Targeting the Income Tax Transparency Laws) Act 2015 receives the Royal Assent.

4. Schedule 5, Part 3

The day after this Act receives the Royal Assent.

(2) Page 17 (after line 3), at the end of the Bill, add:

Schedule 5—Reporting of information about corporate tax entities

Part 1—Repeal of Act

Tax and Superannuation Laws Amendment (Better Targeting the Income Tax Transparency Laws) Act 2015

1 The whole of the Act

   Repeal the Act.

Part 2—Application

2 Application

(1) This item applies if the Tax and Superannuation Laws Amendment (Better Targeting the Income Tax Transparency Laws) Act 2015 receives the Royal Assent before this Schedule commences.

(2) Despite section 7 of the Acts Interpretation Act 1901, the Taxation Administration Act 1953 as in force immediately before that Royal Assent continues to apply, by force of this item, as if the amendments made by the Tax and Superannuation Laws Amendment (Better Targeting the Income Tax Transparency Laws) Act 2015 had never been made.

Part 3—Reporting of information

Taxation Administration Act 1953

3 Subsection 3C(2)

   Omit "The Commissioner", substitute "Subject to subsection (2A), the Commissioner.

4 After subsection 3C(2)

   Insert:

   (2A) If:

   (a) an entity applies to the Commissioner in writing; and

   (b) at the end of the income year the entity is an Australian resident that is a private company for the income year that neither:

      (i) is a member of a wholly-owned group that has a foreign resident ultimate holding company; or

      (ii) has a foreign shareholding percentage of 50% or greater; and

   (c) the Commissioner is satisfied that to make the information publicly available may be significantly prejudicial to any of the entity's current or future commercial negotiations;

the Commissioner may determine that subsection (2) does not apply in relation to the entity. An expression used in this subsection that is also used in the Income Tax Assessment Act 1997 has the same meaning as in that Act.

   (2B) A determination under subsection (2A) is not a legislative instrument.

5 After subsection 3C(3)

   Insert:

   (3A) The Commissioner must ensure that the information made publicly available under subsection (2) includes:

   (a) a statement to the effect that:

      (i) the information may not reflect the full financial position of the entity; and

      (ii) more comprehensive information may be available from the Australian Securities and Investment Commission; and

   (b) the address for the part of the Australian Securities and Investment Commission's website via which the information referred to in subparagraph (a)(ii) may be found.

6 Application of amendments

   The amendments made by this Schedule apply in relation to an entity for the 2013-14 income year and each later income year unless the Commissioner has, before the commencement of this Schedule, made publicly available information about the entity for the income year under subsection 3C(2) of the Taxation Administration Act 1953.

This amendment before us is a slightly amended version of the amendment that the Greens put up last night, which had not been put through the committee. We had circulated it but it was not moved. I thank the ALP for doing some hard work in the last 24 hours to improve the amendment, and thank some of the Independents who have given us feedback on the amendment.

The amendment that I have just moved relates to the repeal of the Tax and Superannuation Laws Amendment (Better Targeting the Income Tax Transparency Laws) Act 2015, which we have discussed for well over a day, but there is additional information which Senator Xenophon will no doubt want to talk to. We have included a clause, part 3, clause 4, after subsection 3C(2), where we have inserted, under 2A:

If:

   (a) an entity applies to the Commissioner in writing; and

   (b) at the end of the income year the entity is an Australian resident that is a private company for the income year that neither:

      (i) is a member of a wholly owned group that has a foreign resident ultimate holding company; or

      (ii) has a foreign shareholding percentage of 50% or greater; and

   (c) the Commissioner—

that is obviously the Tax Commissioner—

is satisfied that to make the information publicly available may be significantly prejudicial to any of the entity's current or future commercial negotiations;

the Commissioner may determine that subsection (2) does not apply in relation to the entity. An expression used in this subsection that is also used in the Income Tax Assessment Act 1997 has the same meaning as in that Act.

This is to allay concerns that some senators, including Senator Xenophon, have received from companies that somehow the disclosure of their information may be prejudicial, so we wanted to be very cognisant of the fact that, if that is the case and there is a basis for that, those companies can actually receive a judgement from the commissioner on the particular circumstance that relates to their commercial considerations.

We have also inserted in clause 5:

After subsection 3C(3)

   Insert:

   (3A) The Commissioner must ensure that the information made publicly available under subsection (2) includes:

   (a) a statement to the effect that:

      (i) the information may not reflect the full financial position of the entity; and

      (ii) more comprehensive information may be available from the Australian Securities and Investment Commission; and

   (b) the address for the part of the Australian Securities and Investment Commission's website via which the information referred to in subparagraph (a)(ii) may be found.

We have put in a really simple clause that makes a lot of sense. We are putting it up-front that, if you are going to make judgements about, say, people's tax avoidance from the register, or tax evasion or tax minimisation or tax paid, look at the detail first. In other words, go to ASIC, go to the website, and get the information before you make a judgement. Let's make it clear: that is a very important piece of information. If you are worried that the tabloid press might use this to beat up on rich people or whatever, there is a very clear sign that there is more detailed information available on the ASIC website and that you should not draw those conclusions.

Nevertheless, this information will increase transparency and the disclosure will help raise awareness and educate the public on the importance of avoidance of tax and tax minimisation. Let's be honest: the government has been happy to keep these regulations on foreign companies with over $100 million. Foreign companies have to put this information on a register, but you seem to have a reason for not explaining why Australian companies with over $100 million have been exempted. Now both foreign and domestic companies will be required to put this information on a register. That is what we have been asking for.

As I very importantly pointed out, Senator McGrath, this is what the Treasurer was talking about in his budget statement this year. I will read you his words again. He was talking about a voluntary code, but this is a mandatory code and it will highlight companies that are paying their fair share of tax. It could be a good thing for companies that are paying their fair share of tax and it will put to bed any potential issues that people may have. It will also discourage companies from engaging in aggressive tax avoidance. So it rewards the companies that are doing the right thing and it may be a disincentive, through reputational risk or otherwise, for companies that are doing the wrong thing.

The Treasurer then said:

The government would like more companies—

we estimate 1,000 domestic companies will have to comply with this legislation or the ATO will have to provide their details—

particularly large multinationals operating in Australia, to publicly disclose their tax affairs.

That is it. That is from your own government. That is what we are doing here tonight, but we are not shielding Australian companies with over $100 million or wealthy Australians from disclosure of their tax affairs. The whole point is to have that disclosure up-front and put it in the public domain, and raise education, awareness and debate around issues on tax avoidance, which is what a broad range of stakeholders has been asking for. The Greens—and I think Labor and hopefully others in this chamber—believe this is good legislation and that you will support it and make sure that we have a good set of laws in this country relating to disclosure of tax affairs.