A Bill for an Act to amend the law relating to foreign investment and acquisitions, taxation, coronavirus and superannuation, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act is the Treasury Laws Amendment (2022 Measures No. 3) Act 2022.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 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. Schedule 1 | 1 January 2023. | 1 January 2023 |
| 3. Schedules 2 and 3 | The day after this Act receives the Royal Assent. | |
| 4. Schedule 4 | At the same time as the Income Tax Amendment (Labour Mobility Program) Act 2022 commences. However, the provisions do not commence at all if that Act does not commence. | |
| 5. Schedule 5 | The day this Act receives the Royal Assent. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Foreign acquisitions and takeovers penalties
Foreign Acquisitions and Takeovers Act 1975
1 Subsection 88(1) (penalty)
Omit “15,000”, substitute “30,000”.
2 Subsection 88(1) (penalty)
Omit “150,000”, substitute “300,000”.
3 Paragraph 94(4)(a)
Before “the amount”, insert “double”.
4 Paragraphs 94(4)(b) and (c)
Omit “25%”, substitute “50%”.
5 Paragraph 95(7)(a)
Before “the amount”, insert “double”.
6 Paragraphs 95(7)(b) and (c)
Omit “25%”, substitute “50%”.
7 Paragraph 95A(3)(a)
Before “the amount”, insert “double”.
8 Paragraphs 95A(3)(b) and (c)
Omit “25%”, substitute “50%”.
9 Paragraph 96(4)(a)
Before “the amount”, insert “double”.
10 Paragraphs 96(4)(b) and (c)
Omit “25%”, substitute “50%”.
11 Subsections 97(1), (1A) and (2), 115D(1), 115DA(1) and 115G(1) (penalty)
Omit “250”, substitute “500”.
12 Application of amendments
The amendments made by this Schedule apply in relation to:
(a) a contravention of subsection 95(1) of the Foreign Acquisitions and Takeovers Act 1975 that:
(i) started before 1 January 2023 and did not end before 1 January 2023; or
(ii) starts on or after 1 January 2023; or
(b) a contravention of any other provision of that Act committed on or after 1 January 2023.
Schedule 2—Data sharing to support government responses to major disasters
National Emergency Declaration Act 2020
1 Section 10 (after paragraph (zd) of the definition of national emergency law)
Insert:
(zda) section 355‑66 in Schedule 1 to the Taxation Administration Act 1953;
Taxation Administration Act 1953
2 Subsection 355‑65(8) in Schedule 1 (at the end of Table 7)
Add:
| 13 | an *Australian government agency | is for the purpose of administering a program declared under section 355‑66 to be a major disaster support program. |
3 After section 355‑65 in Schedule 1
Insert:
355‑66 Major disaster support programs
(1) For the purposes of item 13 of Table 7 in subsection 355‑65(8), the Minister may, by legislative instrument, declare a program administered by an *Australian government agency to be a major disaster support program if the Minister is satisfied that the program is, in effect:
(a) responding to the impacts of an event to which subsection (2) of this section applies; and
(b) directed at supporting:
(i) individuals whom the event has significantly impacted; or
(ii) *businesses the operations of which the event has significantly disrupted.
(2) This subsection applies to an event if:
(a) the event developed rapidly and resulted in:
(i) the death, serious injury or other physical suffering of a large number of individuals; or
(ii) widespread damage to property or the natural environment; or
(b) the event is an emergency to which a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) relates (including a national emergency declaration that is no longer in force).
Period of effect
(3) A declaration made under subsection (1) must specify the period for which the declaration is in force. The period must end no later than 2 years after the day the declaration is registered on the Federal Register of Legislation.
4 Application of amendments
Item 13 of Table 7 in subsection 355‑65(8) in Schedule 1 to the Taxation Administration Act 1953 applies in relation to records and disclosures of information made on or after the commencement of this item, whether the information was obtained before, on or after that commencement.
Schedule 3—Modification power
Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020
1 Subitems 1(7) and (8) of Schedule 5
Omit “2022”, substitute “2023”.
2 Application of amendments
The amendment of subitem 1(7) of Schedule 5 to the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 made by this Schedule applies to a determination made under subitem 1(2) of Schedule 5 to that Act if the determination:
(a) was made before the commencement of this item and did not cease to have operation before that commencement; or
(b) is made on or after that commencement.
Schedule 4—Tax treatment for new or revised visa programs
Income Tax Assessment Act 1936
1 Subsection 170(10AA) (table item 15)
Omit “Seasonal Labour Mobility Program withholding tax”, substitute “labour mobility program withholding tax”.
Income Tax Assessment Act 1997
2 Section 11‑55 (table item headed “foreign aspects of income taxation”)
Omit “Seasonal Labour Mobility Program withholding tax”, substitute “labour mobility program withholding tax”.
3 Section 12‑5 (table item headed “employees”)
Omit:
| pensions, gratuities or retiring allowances for ex‑employees ................................................................. |
25‑50
|
| Seasonal Labour Mobility Program, delayed deduction for salary, wages etc. paid to employees under program until Seasonal Labour Mobility Program withholding tax payable has been paid .................... |
26‑25A
|
substitute:
| labour mobility programs, delayed deduction for salary, wages etc. paid to employees under program until labour mobility program withholding tax payable has been paid .......................................... |
26‑25A
|
| pensions, gratuities or retiring allowances for ex‑employees ................................................................. |
25‑50
|
4 Section 26‑25A (heading)
Repeal the heading, substitute:
26‑25A Payments to employees—labour mobility programs
5 Subsection 26‑25A(1)
Omit “(about the Seasonal Labour Mobility Program)”, substitute “(about labour mobility programs)”.
6 Paragraph 26‑25A(2)(b)
Omit “*Seasonal Labour Mobility Program withholding tax”, substitute “*labour mobility program withholding tax”.
7 Subdivision 840‑S (heading)
Repeal the heading, substitute:
Subdivision 840‑S—Labour mobility program withholding tax
8 Section 840‑900
Omit “the Seasonal Labour Mobility Program”, substitute “a labour mobility program”.
9 Section 840‑905 (heading)
Repeal the heading, substitute:
840‑905 Liability for labour mobility program withholding tax
10 Paragraph 840‑905(a)
Repeal the paragraph, substitute:
(a) that is salary, wages, commission, bonuses or allowances paid to you as an employee of an Approved Employer under a program covered by section 840‑906; and
11 At the end of paragraph 840‑905(b)
Add:
; or (iii) you hold a visa of a kind prescribed by the regulations for the purposes of this subparagraph.
12 Section 840‑905 (note 1)
Repeal the note, substitute:
Note 1: The tax, which is called labour mobility program withholding tax, is imposed by the Income Tax (Labour Mobility Program Withholding Tax) Act 2012 and the rate of the tax is set out in that Act.
13 After section 840‑905
Insert:
840‑906 Covered labour mobility programs
This section covers the following programs:
(a) the Seasonal Labour Mobility Program;
(b) the Pacific Australia Labour Mobility scheme;
(c) each program prescribed by the regulations for the purposes of this paragraph.
14 Section 840‑910 (heading)
Repeal the heading, substitute:
840‑910 When labour mobility program withholding tax is payable
15 Subsection 840‑910(1)
Omit “*Seasonal Labour Mobility Program withholding tax”, substitute “*Labour mobility program withholding tax”.
16 Subsections 840‑910(2), (3) and (4)
Omit “*Seasonal Labour Mobility Program withholding tax”, substitute “*labour mobility program withholding tax”.
17 Section 840‑915
Omit “*Seasonal Labour Mobility Program withholding tax”, substitute “*labour mobility program withholding tax”.
18 Section 840‑920 (heading)
Repeal the heading, substitute:
840‑920 Overpayment of labour mobility program withholding tax
19 Section 840‑920
Omit “*Seasonal Labour Mobility Program withholding tax”, substitute “*labour mobility program withholding tax”.
20 Subsection 995‑1(1)
Insert:
labour mobility program withholding tax means income tax payable under Subdivision 840‑S.
Note: The tax is imposed by the Income Tax (Labour Mobility Program Withholding Tax) Act 2012 and the rate of the tax is set out in that Act.
21 Subsection 995‑1(1) (definition of Seasonal Labour Mobility Program withholding tax)
Repeal the definition.
Income Tax (Transitional Provisions) Act 1997
22 Subdivision 840‑S (heading)
Repeal the heading, substitute:
Subdivision 840‑S—Labour mobility program withholding tax
Taxation Administration Act 1953
23 Subsection 8AAB(4) (table item 18A)
Omit “Seasonal Labour Mobility Program withholding tax”, substitute “labour mobility program withholding tax”.
24 Subsection 10‑5(1) in Schedule 1 (table item 22D)
Omit “the Seasonal Labour Mobility Program”, substitute “a labour mobility program”.
25 Subdivision 12‑FC in Schedule 1 (heading)
Repeal the heading, substitute:
Subdivision 12‑FC—Labour mobility programs
26 Paragraph 12‑319A(a) in Schedule 1
Omit “the Seasonal Labour Mobility Program”, substitute “a program covered by section 840‑906 of the Income Tax Assessment Act 1997 (about labour mobility programs)”.
27 At the end of paragraph 12‑319A(b) in Schedule 1
Add:
; or (iii) the employee holds a visa of a kind prescribed by regulations made under the Income Tax Assessment Act 1997 for the purposes of subparagraph 840‑905(b)(iii) of that Act.
28 Subsection 15‑15(1) in Schedule 1 (note 3A)
Omit “the Seasonal Labour Mobility Program”, substitute “certain labour mobility programs”.
29 Paragraph 16‑195(1)(ab) in Schedule 1
Omit “(Seasonal Labour Mobility Program)”, substitute “(about labour mobility programs)”.
30 Paragraph 18‑10(1)(c) in Schedule 1
Omit “(Seasonal Labour Mobility Program)”, substitute “(Labour Mobility Programs)”.
31 Group heading before section 18‑30 in Schedule 1
Omit “Seasonal Labour Mobility Program”, substitute “labour mobility program”.
32 Section 18‑33 in Schedule 1 (heading)
Repeal the heading, substitute:
18‑33 Credit: labour mobility programs
33 Paragraph 18‑33(1)(b) in Schedule 1
Omit “(about the Seasonal Labour Mobility Program)”, substitute “(about labour mobility programs)”.
34 Paragraph 18‑35(1AA)(a) in Schedule 1
Omit “Seasonal Labour Mobility Program”, substitute “labour mobility programs”.
35 Paragraph 18‑35(1AA)(b) in Schedule 1
Omit “*Seasonal Labour Mobility Program withholding tax”, substitute “*labour mobility program withholding tax”.
36 Paragraph 18‑35(1AA)(d) in Schedule 1
Omit “Seasonal Labour Mobility Program withholding tax”, substitute “labour mobility program withholding tax”.
37 Subsection 250‑10(2) in Schedule 1 (table item 39AA)
Omit “Seasonal Labour Mobility Program withholding tax”, substitute “labour mobility program withholding tax”.
38 Application of amendments
The amendments made by this Schedule apply in relation to salary, wages, commission, bonuses and allowances paid on or after 1 July 2022.
Schedule 5—Faith‑based products
Superannuation Industry (Supervision) Act 1993
1 Subsection 10(1)
Insert:
faith‑based product has the meaning given by section 60K.
2 At the end of Part 6A
Add:
60K Faith‑based products—meaning of faith‑based product
A faith‑based product, in relation to a financial year, is a Part 6A product that is specified in the determination made by APRA under subsection 60L(4) in relation to the financial year.
60L Faith‑based products—faith‑based product determination by APRA
(1) The trustee or trustees of an entity that offers a Part 6A product may apply to APRA for the product to be specified in a determination under subsection (4) in relation to a financial year.
(2) The application must:
(a) be in writing and in the approved form; and
(b) contain a declaration by the trustee or trustees that:
(i) the investment strategy in respect of that financial year for the product accords with faith‑based principles; and
(ii) that investment strategy has been disclosed in a document required under this Act or the Corporations Act 2001 to be given to each beneficiary of the entity who holds the product in that financial year; and
(iii) that investment strategy has been disclosed, and in the future will be disclosed, in the entity’s marketing materials; and
(c) set out one or more indices that APRA could use in making a determination under subsection 60C(2) for the product in relation to the financial year and later financial years; and
(d) if regulations made for the purposes of this paragraph specify information—contain that information.
(3) Regulations made for the purposes of paragraph (2)(d) may:
(a) specify information by reference to information specified in a legislative instrument; and
(b) empower APRA to make a legislative instrument for the purposes of paragraph (a).
(4) If the trustee or trustees give APRA the application within the period specified in subsection (5), APRA may make a determination in writing specifying the product in relation to the financial year.
(5) For the purposes of subsection (4), the period:
(a) starts on 1 February in the previous financial year; and
(b) ends on 31 January in the financial year.
(6) APRA can only make the determination under subsection (4) on or before 31 March in the financial year.
60M Faith‑based products—deemed faith‑based product determination in following years
(1) This section applies if APRA has made a determination (the previous determination) under subsection 60L(4) (including a determination taken to be made because of subsection (2)) specifying a Part 6A product in relation to a financial year.
(2) APRA is taken to have made a determination under subsection 60L(4) specifying the Part 6A product in relation to the following financial year (the current year) unless APRA has revoked the previous determination.
(3) A determination that is taken to have been made in accordance with subsection (2) is taken to have been made on 31 March in the current year.
60N Faith‑based products—revocation of APRA’s faith‑based product determination
(1) APRA may revoke a determination under subsection 60L(4) (including a determination taken to be made because of subsection 60M(2)) specifying a Part 6A product in relation to a financial year if APRA reasonably considers that:
(a) the investment strategy in respect of that financial year for the product does not accord with faith‑based principles; or
(b) that investment strategy has not been disclosed in a document required under this Act or the Corporations Act 2001 to be given to each beneficiary of the entity who holds the product in that financial year; or
(c) that investment strategy has not been disclosed in the entity’s marketing materials; or
(d) the trustee or trustees of the entity have not complied with section 60R (provision of information).
(2) The revocation must:
(a) be in writing; and
(b) specify the Part 6A product in relation to the financial year.
(3) The revocation cannot be made after 31 August in the following financial year.
(4) This section does not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to a determination under subsection 60L(4) (including a determination taken to be made because of subsection 60M(2)).
60P Faith‑based products—modification of process for annual performance assessments
(1) This section applies if:
(a) APRA is required under subsection 60C(3) to give the trustee or trustees of an entity a notification of a determination under subsection 60C(2) (the original determination); and
(b) the original determination is that the requirement in subsection 60D(1) has not been met for a faith‑based product offered by the entity, in relation to a financial year; and
(c) the original determination is not a determination that APRA is required to make under subsection (3).
(2) The following provisions do not apply in relation to the original determination:
(a) subsection 60C(5) (publication on APRA website of assessment);
(b) section 60E (trustee to notify beneficiaries of fail assessment);
(c) section 60F (consequences of 2 consecutive fail assessments).
(3) In addition to the determination mentioned in subsection (1), APRA must make another determination (the supplementary determination) for the product under subsection 60C(2) in relation to the financial year.
(4) Subsection (2) does not apply in relation to the notification given by APRA under subsection 60C(3) that results from the supplementary determination.
Note: This means that:
(a) APRA must ensure the publication of the contents of the notice in accordance with subsection 60C(5); and
(b) if the notice is a fail notice, the consequences set out in sections 60E and 60F will apply.
(5) Without limiting subsection 60C(4), regulations made for the purposes of that subsection may set out special rules for working out the period within which APRA must:
(a) give the notification under subsection 60C(3) that results from the original determination; and
(b) make the supplementary determination; and
(c) give the notification under subsection 60C(3) that results from the supplementary determination.
60Q Faith‑based products—regulations relating to annual performance assessments for faith‑based products
(1) Regulations made for the purposes of subsection 60D(1) may:
(a) specify requirements that relate only to a supplementary determination mentioned in subsection 60P(3); and
(b) provide that other requirements do not apply to such a supplementary determination.
(2) Subsection (1) does not limit the scope of regulations that may be made for the purposes of subsection 60D(1).
(3) Without limiting subsection 60D(4), regulations made for the purposes of subsection 60D(1) may specify requirements that depend on the exercise of discretion by APRA in determining an index or indices in respect of a faith‑based product, or a class of faith‑based products, for a period.
(4) Without limiting subsections 60D(4) and (5), regulations made for the purposes of subsection 60D(1) may provide that a discretion mentioned in subsection 60D(4) may be exercised in a way that allows for the determination of a benchmark return for a period where a relevant Part 6A product:
(a) is a faith‑based product for part or parts of the period; and
(b) is not a faith‑based product for the other part or parts of the period.
60R Faith‑based products—provision of information by trustee
(1) Subsection (2) applies if:
(a) an entity offers a faith‑based product in relation to a financial year; and
(b) information becomes available to a trustee of the entity at a time; and
(c) that information relates to the extent to which:
(i) the investment strategy in respect of that financial year for the product accords with faith‑based principles; or
(ii) that investment strategy has been disclosed in a document required under this Act or the Corporations Act 2001 to be given to each beneficiary of the entity who holds the product in that financial year; or
(iii) that investment strategy has been disclosed in the entity’s marketing materials; or
(iv) the index or indices mentioned in paragraph 60L(2)(c) that were contained in the application under subsection 60L(1) in respect of the product are consistent with that investment strategy.
(2) The trustee must give APRA the information as soon as practicable after the time mentioned in paragraph (1)(b).
(3) Subsection (2) is a civil penalty provision as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or being involved in a contravention of, that subsection.
3 After paragraph 193(ab)
Insert:
(ac) subsection 60R(2);
4 Application of amendments
The amendments made by this Schedule apply on and after the commencement of this item.