Future Made in Australia (Production Tax Credits and Other Measures) Bill 2024 - Commentary on Ministerial Responses [2025] AUSStaCSBSD 36 (27 March 2025)

• Future Made in Australia (Production Tax Credits and Other Measures) Bill 202476
• Instruments not subject to an appropriate level of parliamentary oversight77
• Treasurer’s response83
• Committee comment
• Significant matters in delegated legislation86
• Additional correspondence from the Treasurer89
• Committee comment

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Future Made in Australia (Production Tax Credits and Other Measures) Bill 2024^[76]

Purpose	Schedule 1 seeks to establish the Hydrogen Production Tax Incentive, in the form of a new tax offset. Schedule 2 seeks to establish the Critical Minerals Tax Production Incentive, in the form of a new refundable tax offset, to support the processing of critical minerals in Australia. Schedule 3 seeks to amend the Aboriginal and Torres Straits Islander Act 2005 to enable Indigenous Business Australia to leverage their capital to invest in First Nations communities and businesses.
Portfolio	Treasury
Introduced	House of Representatives on 25 November 2024
Bill status	Received Royal Assent on 14 February 2025

Instruments not subject to an appropriate level of parliamentary oversight^[77]

2.2 This bill provides that a company that produces hydrogen products and holds a registered production profile for these products may apply to the Clean Energy Regulator for the profile to be certified.^[78] When applying for certification, the application is taken not to be made unless it complies with certain requirements, which include being in a prescribed form and being accompanied by any prescribed information, documents or materials.^[79] The Clean Energy Regulator may prescribe a form or information, documents or materials to be included in the application by a notifiable instrument.^[80]

2.3 Similarly, another provision in the bill allows the Industry Secretary to approve a form or require the form to be accompanied by specified information, documents or other materials as specified by notifiable instrument.^[81]

2.4 In Scrutiny Digest 1 of 2025 the committee requested the Treasurer’s advice as to the necessity and appropriateness of the Clean Energy Regulator and Industry Secretary being able to prescribe requirements such as forms, information, documents and materials in relation to applications by notifiable, rather than legislative instrument, and why these instruments are not considered legislative in character.^[82]

Treasurer’s response^[83]

2.5 The Treasurer noted the Legislation (Exemptions and Other Matters) Regulation 2015^[84] sets out that instruments prescribing or approving a form are not legislative in character.

2.6 The Treasurer stated that it is the obligation to report or apply as set out in the Income Tax Assessment Act 1997 that are legislative in character,^[85] but that the specification of the forms through which this must be done, and the material that must accompany these forms, is administrative in character. As such, the Treasurer advised that it is not appropriate for the bill to provide that the powers of the Clean Energy Regulator and Industry Secretary to prescribe forms are to be exercised by legislative instrument.

Committee comment

2.7 The committee thanks the Treasurer for this advice. The committee notes that had this information been included in the explanatory memorandum the committee may not have needed to correspond with the minister on this matter.

2.8 In light of the information provided, the committee makes no further comment in relation to this matter.

Significant matters in delegated legislation^[86]

2.9 This bill seeks to provide that the minister may make rules, known as the Indigenous Business Australia rules.^[87] These rules may prescribe the circumstances in which Indigenous Business Australia (IBA) may borrow money for a purpose in connection with its functions and may prescribe limits or conditions on the borrowing of such money.

2.10 In Scrutiny Digest 1 of 2025, the committee requested that the explanatory memorandum to the bill be updated to include information addressing the committee’s concerns.^[88]

Additional correspondence from the Treasurer^[89]

2.11 The Treasurer noted that the functions of the IBA are broad, and noted the need to allow IBA’s borrowing power to be tailored, while maintaining appropriate controls to limit financial risks. The Treasurer noted that to do this will require a level of specificity that would not be appropriate for primary legislation. Further, as the activities of the IBA and the levels of risk will change over time, the rule making power ensures that the mechanism can be updated to reflect these changes. The Treasurer advised that ‘given the consistency of the approaches taken in the Bill with longstanding arrangements of successive Parliaments and Governments’ he did not intend to update the explanatory memorandum in line with the committee’s request.

Committee comment

2.12 The committee thanks the Treasurer for the additional information provided. The committee notes that had this information been included in the explanatory memorandum the committee may not have needed to correspond with the minister on this matter. The committee disagrees that this information was sufficiently set out in the explanatory memorandum and is disappointed that the Treasurer was unwilling to update the explanatory memorandum to include this additional information.

2.13 However, as the bill has now passed, and in light of the information provided, the committee makes no further comment in relation to this matter.

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^[76] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Future Made in Australia (Production Tax Credits and Other Measures) Bill 2024, Scrutiny Digest 3 of 2025; [2025] AUSStaCSBSD 36.

^[77] Schedule 1, item 3, proposed subsection 421-50(5) and schedule 2, item 1, proposed section 419-150. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).

^[78] Proposed subsection 421-50(1).

^[79] Proposed subsection 421-50(3).

^[80] Proposed subsection 421-50(5).

^[81] Proposed section 419-150.

^[82] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2025 (5 February 2025) pp. 9–10.

^[83] The minister responded to the committee’s comments in a letter dated 19 March 2025. A copy of the letter is available on the committee’s webpage (see correspondence included with the committee’s assessment of this bill).

^[84] Section 6, item 6.

^[85] Proposed sections 419-35, 419-45, 419-55, 419-60, 419-70, 419-80, 419-120 and 421-50.

^[86] Schedule 3, item 2, proposed subsections 183(2) and 189A(2). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iv).

^[87] Proposed subsection 189A(2).

^[88] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2025 (5 February 2025) p. 11.

^[89] The minister responded to the committee’s comments in a letter dated 19 March 2025. A copy of the letter is available on the committee’s webpage (see correspondence included with the committee’s assessment of this bill).