Page 462 - Week 02 - Wednesday, 24 February 1993
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MADAM SPEAKER: The question is: That the amendment be agreed to.
Mr Humphries: Well, I have asked a question. I hope that the Chief Minister can answer it.
MADAM SPEAKER: It is not question time, Mr Humphries.
Mr Humphries: Madam Speaker, it is customary in the course of dealing with Bills to ask questions. If the Chief Minister does not wish to answer, I am quite happy to continue with my speech.
MADAM SPEAKER: I take your point, Mr Humphries. It is okay.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (4.24): Madam Speaker, as the Chief Minister indicated, when the High Court decision was announced in October we realised that we may have a problem. If you look at established texts on constitutional law - it is certainly so in Leslie Zines's book - the assumption is that section 90 binds the Commonwealth and the States but not the Territories. There was never an assumption that the ACT or Northern Territory was bound by the prohibition on levying an excise. Any authority would have said that and the textbooks were saying that. When the revenue laws were drafted in the ACT in the period since self-government, and in the Northern Territory since the mid-1970s, the very complex formula that Mr Humphries is familiar with that you must go through to get a valid section 90 non-excise did not have to be complied with, and the ACT quite sensibly took the simpler course. We tended to levy taxes as things were sold, rather than adopt the legal fiction of this past period consumption taxation which is the legally valid form of excise.
The decision was announced in October. The Chief Minister has indicated to the house that we set up an examination. Mr Jackson, QC, of the Sydney bar and Mr Katz, a leading junior in the field of constitutional and taxation law, gave us a series of advisings. My recollection is that I saw one of those advisings in December and one in January. Those advisings basically looked at, in turn - - -
Mr Humphries: There were two, were there?
MR CONNOLLY: Yes, there were at least two. They looked sequentially at ACT revenue laws and formed the view that there could be problems. On the basis of those advisings the Parliamentary Counsel, Mr Hunt, then prepared suitable amendments. So the process was, as was indicated in October, that we would look at our laws. We did that originally in-house; officials from my department worked with officials from the Revenue Office. The preliminary view was that there could be problems. Because of the importance of the matter we thought it was appropriate to seek counsel's advice from senior practitioners in the field of revenue law. There would be no difficulty, I would imagine, later on if Mr Humphries wanted to see those. We would not want to publish them, for obvious reasons, because someone may seek to make some challenges to ACT law; but I can assure you that that was done bona fide. As a result of that advice - my recollection is that I saw one in December and one in January - the draftsman prepared amendments, and it went through the ordinary Cabinet process.
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