Page 3986 - Week 13 - Tuesday, 23 November 1993
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Although the decision will relate to the "X" video Act in this Territory, it could indicate that a number of ACT, State and Northern Territory revenue measures are invalid. This would happen if the court applied a definition of "excise" that is inconsistent with previous court decisions. Those decisions have been relied on to support legislation, in this jurisdiction and others, imposing business franchise fees on the liquor, petroleum and tobacco industries in every State and Territory.
In view of the possible ramifications of the decision, Commonwealth, State and Territory governments have been examining various legislative options to protect State and Territory revenues. The options include amendments to State and Territory limitation laws which will limit the impact of an adverse decision. The Government has decided that it would be appropriate for the ACT's limitation law to provide a six-month limitation period when a claim is made for money paid under a revenue law which is found to be invalid. At first glance, this may appear harsh. However, there are a number of matters that I would like to draw to the attention of members.
First, in the case of Antill Ranger and Co. v. Commissioner of Motor Transport, the High Court dealt with the validity of the New South Wales Transport Coordination (Barring of Claims and Remedies) Act 1954. This Act was enacted following the Privy Council's decision that the then State Transport (Coordination) Act 1931 was invalid on the basis that it offended the guarantee of free trade which is contained in section 92 of the Constitution. The court found the barring of claims to be invalid. However, in doing so it made a number of observations that made it clear that it would be acceptable for legislation to provide a limitation period that applies only to actions to recover moneys paid under a revenue law that is subsequently held to be invalid. In a subsequent case, Barton v. Commissioner of Motor Transport in 1957, the High Court explained that to comply with the Antill Ranger principle it was necessary that the limitation period be imposed prospectively. That case dealt with a limitation period of 12 months, which was imposed once the Antill Ranger decision was handed down.
I stress that the Bill before the Assembly does not bar claims. In reliance on the Antill Ranger decision it does, however, apply a much reduced limitation period. It also includes a provision which will phase out the existing limitation period, which is six years. This phasing out will occur during the first six months of the Bill's operation. During that period claimants will be able to lodge claims that are based on the existing limitation period. A moment's reflection will indicate the good sense of this.
If the ACT's major revenue laws are held invalid and the ordinarily applicable limitation period is applied, all revenue that has been collected under these laws since self-government day will be suspect and liable to be refunded. The Government considers this both unacceptable and unfair to the ACT community. It has to be remembered that the revenues in question were paid and collected on the common understanding that the laws were valid. It also has to be remembered that in the normal course of business the impact of the taxes would have been passed on to the consumer and it would now be impossible to trace the person who, in truth, ultimately paid them. Refund to the person who collected the tax would thus amount to a significant windfall gain.
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