Senate debates

Wednesday, 31 October 2012


Corporations Legislation Amendment (Derivative Transactions) Bill 2012, Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012, Tax Laws Amendment (Clean Building Managed Investment Trust) Bill 2012; Second Reading

6:02 pm

Photo of David FeeneyDavid Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | | Hansard source

I present revised explanatory memoranda relating to the Corporations Legislation Amendment (Derivative Transactions) Bill 2012 and the Tax Laws Amendment (Clean Building Managed Investment Trust) Bill 2012 and I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—


Today I introduce a bill to amend the Corporations Act 2001 (‘the Corporations Act’).

The Corporations Legislation Amendment (Derivative Transactions) Bill 2012 (‘the Bill’) contains measures to implement commitments made by Australia and other G20 nations regarding the regulation of over-the-counter (‘OTC’) derivatives.

The global OTC derivatives market is enormous. At end-2011 the Bank for International Settlements reported that total notional amount outstanding for OTC derivatives worldwide was $648 trillion.

The global financial crisis highlighted structural deficiencies in the OTC derivatives market and the systemic risks that those deficiencies can pose for wider financial markets and the real economy.

In many countries, these structural deficiencies contributed to the build-up of large, insufficiently risk-managed, counterparty exposures between some market participants in advance of the global financial crisis; and to the lack of transparency about those exposures for market participants and regulators.

At the G20 summit in Pittsburgh in 2009, the Australian Government joined other jurisdictions in committing to substantial reforms to practices in the OTC derivatives market. The three key G20 commitments addressed by the bill are:

        These commitments are intended to:

            The implementation of the G20 commitments is being coordinated and monitored by the Financial Stability Board (FSB). The FSB has called on all jurisdictions to aggressively push ahead to achieve full implementation of market changes by end-2012 to meet the G-20 commitments in as many reform areas as possible.

            In Australia, extensive consultation on implementing the G20 commitments has been conducted by the Council of Financial Regulators (‘the Council’), which is comprised of the Reserve Bank of Australia, the Australian Prudential Regulation Authority, the Australian Securities and Investments Commission, and the Australian Treasury.

            The public consultation process was wide-ranging and comprehensive. A call for submissions was made following the release of a public consultation paper. Most of the submissions received were from the financial services sector, both in Australia and internationally. Further face-to-face consultations were subsequently held with interested parties.


            This bill amends the Corporations Act 2001 to allow for regulations and rules to be put in place to implement the G20 Commitments in a form flexible enough to deal with changing market conditions and to impose any future obligations on a coordinated basis with other nations.

            Under the legislative framework introduced by this bill the Minister will be empowered by the Corporations Act to prescribe certain classes of derivatives.

            Once a class of derivatives is prescribed, ASIC will have the power to issue rules to establish one or more mandatory obligations (reporting, clearing or execution) for transactions in that class.

            The bill contains a range of checks and balances in relation to this rule making power, including a requirement that ASIC consult and obtain ministerial consent for any new rules.

            It is intended that Australia’s financial regulators will conduct ongoing assessment and advise the Government on whether various derivative classes should be made subject to trade reporting, central clearing and on-platform execution requirements.

            This will build on earlier assessments and consultations as well as assessments that are currently underway.

            It is important to note that prior to making any decision to mandate reporting, central clearing or use of trading execution venues, the Government will engage with stakeholders further and consider any advice from the Council of Australian Regulators.

            The bill will provide a high degree of flexibility in implementing trading, clearing and on-platform trading mandates. The regime can therefore be readily adapted to overseas regulatory developments.

            This flexibility enables Australia’s financial regulators to work with their international counterparts to ensure a unified approach to regulation of global OTC derivatives markets.

            Consistent implementation by all major economies is important to reduce systemic risk and the risk of regulatory arbitrage that could arise if there are significant gaps in implementation.

            International cooperation and flexibility will also help to avoid unintended consequences of national laws such as the burden on businesses of duplicated or conflicting rules and the costs of reduced access to international markets.

            Trade repositories

            As well as facilitating the possible introduction of trade reporting requirements, the legislation sets out a new licensing regime for trade repositories. Trade repositories will record derivative trade data and make it available to relevant regulators. This information can be used by regulators for monitoring market integrity and stability. Trade repositories also have the potential to facilitate efficiency improvements in post-trade processing and production of high-level statistical data for market use.

            This licensing regime is based upon existing licensing regimes for financial markets and clearing and settlement operators; but adapted for the different role that this new form of market infrastructure entity will play. A key aspect of the regime is the strong protections against improper use and disclosure of reported derivative trade data.


            In addition to the key reforms I have outlined, the bill also contains consequential amendments to the Australian Prudential Regulation Authority Act 1998, the Australian Securities and Investments Commission Act 2001, the Mutual Assistance in Business Regulation Act 1992, and the Reserve Bank Act 1959.

            These amendments relate largely to information sharing between, and the protection of the confidentiality of information held by, regulators.

            MINCO APPROVAL

            The Ministerial Council for Corporations has been consulted on the amendments to the Corporations Act contained in this bill.

            SUMMING UP

            This bill establishes the legislative framework necessary for Australia to implement its G20 commitments in relation to OTC derivatives.

            The legislative framework in this bill aims to bring transparency to OTC derivatives in Australia and improve OTC risk management practices.

            Implementing these reforms in a globally coordinated way will not only ensure that the risk of regulatory arbitrage is avoided but also ensure that Australian businesses can continue to participate in global markets while being primarily regulated in Australia.

            Passage of this bill will enable the making of rules that will ensure Australian investors can be confident that financial markets will continue to function with certainty and transparency. The bill provides regulators and the Government with the tools necessary to improve risk management in the OTC derivatives market in a flexible way, taking account of ongoing analysis of market developments by Australia’s financial regulators, and in coordination with other economies.



            This bill amends the Income Tax (Managed Investment Trust Withholding Tax) Act 2008, the Income Tax Assessment Act 1997 and the Taxation Administration Act 1953 to provide a final withholding tax rate of 10 per cent on fund payments from eligible Clean Building Managed Investment Trusts (MITs) made to foreign residents in information exchange countries.

            For these amendments to apply, the managed investment trust must only invest in new energy efficient office, hotel and retail buildings that commenced construction on or after 1 July 2012. These trusts may also hold limited assets incidental to these buildings such as car parking facilities, telecommunications infrastructure or advertising billboards.

            To be treated as an energy efficient building, a building must obtain and maintain either a 5-star Green Star rating or a 5.5 star National Australian Built Environment Rating System rating.

            This criteria will be reviewed after 3 years to ensure that the measure continues to apply to buildings that are above the average level of energy efficiency.

            Full details of the measures in this bill are contained in the explanatory memorandum.

            Debate adjourned.

            Ordered that the bills be listed on the Notice Paper as separate orders of the day.