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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-06-08 Daily Xml
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Corporations (Commonwealth Powers) (Termination Day) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 26 May 2021.)

Mr PICTON (Kaurna) (12:16): I rise to speak on this bill and indicate that I will be the lead speaker for the opposition, perhaps even the only speaker, in relation to this legislation—perhaps from both sides, you will be shocked to know. Before the Speaker became the Speaker I am sure he would have spoken as he was keen—

The Hon. V.A. Chapman interjecting:

Mr PICTON: There you go, the Attorney says she has spoken three times on this previously. This bill seeks to amend the Corporations (Commonwealth Powers) Act 2001, to extend the referral of powers in the act for a further 10 years. The existing referral of power is due to expire on 15 July 2021, and this bill seeks to extend the current arrangements until 2031. That is a significant period of time in the future to think about.

In simple terms, the referral of powers means that corporate registration and regulation can occur at a national level. The act enables the application of commonwealth corporations legislation, being the combination of the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001. These acts provide for the registration, administration, regulation and oversight of corporations, along with financial products and services. Importantly, this work includes the activities of the Australian Securities and Investments Commission that administers the relevant acts.

The referrals are made under section 51(xxxvii) of the Australian Constitution, and all other jurisdictions make equivalent referrals to support a nationally consistent scheme. In her second reading speech, the Attorney noted section 5(1) of the Corporations Act 2001. I remember that at law school you had to buy the textbook for the Corporations Act, and it was like the phone book. It would change so often that there was a new one out every year, so my copy of the Corporations Act from around that time is probably completely worthless and it is time now to take it for recycling.

Section 5(1) of the Corporations Act 2001 provides that corporations legislation applies only to those states that have referred powers to the commonwealth. I think that if we do not do this there is a bit of a question as to what would happen. Section 4(6) of the same act provides that a state ceases to be a referring state if the state's referral powers cease, which is currently due to occur just next month, so we are cutting this a little bit fine bringing this now.

All other jurisdictions have the capacity to refer powers simply by proclamation, but South Australia requires legislation, and this is the driver for the bill before us today. Obviously, at some stage there has been an agreement or a decision that we should have the primacy of parliament as part of this decision-making, which I think is appropriate. I am sure the Attorney in one of her previous contributions on that would have been making those points.

In the absence of a new referral by the termination date, serious questions would arise about the operations of corporations in and from South Australia. I think it is fair to say that it would be quite a messy situation if we suddenly pulled out of the national Corporations Regulations framework and were off on our own. I am not sure if Mr Dini Soulio is quite ready to regulate all corporations in South Australia as of next month.

While the probability is low, a failure to extend the national scheme could lead to little or no corporate regulation in South Australia in the absence of a functioning state system. It may require any corporation registered in South Australia to transfer their registration elsewhere, which obviously we would not want to see. As such, the argument to support the bill is strong; however, this clearly raises the question of why we are debating this bill in the second to last week of parliament before the scheme expires. Presumably, somebody had on their calendar that this was coming up in July.

We have had a number of sitting weeks this year and it is not a complex piece of legislation, so why we could not have dealt with this earlier and avoided any potential issue does need to be asked. Notably, this is not the first time this bill has come before the house. An extension of the referral powers has been granted by parliament on three previous occasions, all during the term of the member for Bragg: 2005, 2011 and 2016. I have not gone back and researched the speeches of the member for Bragg on each of those occasions, but I am sure they were riveting affairs, as is my contribution today.

The government has advised the opposition that the longer extension proposed in this bill is due to the act having operated well for 20 years and the desire to provide more certainty for business—as it did during our term of government, over those three times the Attorney spoke, presumably when it was moved by former attorneys Atkinson and Rau. Labor will support the extension of the national scheme. I do not think there is really a strong alternative as to what we should do. I guess there would be a question as to why we are going for 10 years rather than five years, but I do not think there is a strong appetite to bring these powers back and to stop the federal scheme being in place, which would cause significant disruption.

I do have a couple of questions. Maybe I will raise them with the Attorney now and she might want to answer them in her summing-up speech, and we can avoid the need for our learned advisers to help us in the committee stage. Why is this being debated in the second to last week before the referral expires? What is the barrier to the government seeking to do what other jurisdictions do, that is, extend this by proclamation? Why is this extension period for 10 years rather than five years, as has previously been the case? Are there any contingency plans in place should this legislation not pass our strenuous parliamentary examination process over the next month and get proclamation and cause an issue before then?

With those remarks, Mr Speaker, I will have to imagine what excellent contribution you may have made to this speech, to this bill, had you not been the Speaker. I am sure you would have taken it to a full 20 minutes, as opposed to my short contribution. I hope we can get the answers to those questions to the Attorney in her summing-up speech; otherwise, we support this legislation through the house.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (12:23): I wish to acknowledge and thank the opposition for their indication of support for the bill. On the issues raised by the member for Kaurna, I indicate that I am advised, firstly, that when these proceedings were issued in May it followed a period of attempt to have some consensus around Australia as to what the time frame would be for all to move ahead. I am advised that for all but Western Australia, which still has not issued a decision, it is 10 years.

The only reason for attempting to discuss that was to give an opportunity for the states which have had an election, which I think are the two Labor states of Queensland and Western Australia and, this year, the Liberal state of Tasmania. In between their elections and doing other things like doorknocking, no doubt, it has been a little slow but we have had adequate time for bringing this: instituting it in May, consideration in June and the expiry date in July.

As to the question of proclamation versus determination by the parliament, throughout the life of this legislation the South Australian parliament has dealt with this after review by the parliament. I think most of the other states do it by proclamation. All the other states, I am advised, do it by proclamation. There has not been any indication or request for that to change. I personally am of the view that these matters should have the oversight of parliament. I had that view in opposition, and I have not changed since being in government.

I think it is fair to say that in the relatively short time that I have been Attorney-General there does not appear to have been any action by the commonwealth or its instrumentalities, including ASIC, who actually attend to the management and regulation of corporations now in Australia, that would cause us concern as a state on behalf of the corporations that operate in South Australia, that would justify us suggesting or presenting an argument that we should either withdraw from the scheme or in some way place any demands upon the commonwealth that they do or not do certain things.

To the best of my knowledge, it is progressing as it was intended, that is, a national uniform law under national bodies of enforcement, which allows us, of course, to have consistency across the country to deal with our corporations and companies in the 21st century, as they have been, frankly, for some years. Many of them, of course, do operate and trade nationally, and to be able to maintain our position on the national stage it is important that we continue to have that regime.

In short, there is no justification for us trying to take that role back, which, as the member has pointed out and I have indicated in the second reading, could be problematic for enforcement and universal coverage for the corporations that operate in our state. With that, I thank the member for his indication of support.

I should just say one other thing. Whilst the crossbenchers in this house may not be giving immediate attention to this bill, I mention that the opposition took a briefing on 1 June, which was of course made available to the opposition. It has been offered to the crossbenchers. To date, they have not availed themselves of that. I was advised before we came in that they are saying that they will not be available until 21 June to be briefed on this and apparently other bills. The fact is it is a matter that needs to be resolved, and I thank the opposition for the indication of support. Let me say, I am not coming back here on 21 June to give a briefing to anyone. It is my birthday. It is bad enough that we have to deal with the eve of budget day at that time. I will not be giving a briefing on that day.

Bill read a second time.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (12:28): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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