Page 3987 - Week 13 - Tuesday, 23 November 1993
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The Bill contains provisions that will ensure that this provision does not affect a taxpayer who would have had a claim for a refund if the revenue law was valid. Accordingly, overpayments that have occurred because of disputed facts will still be able to be recovered.
The possibility that ACT revenue could be claimed in a court in another State or Territory which has a different limitation period is addressed by providing that the limitation period will be part of the substantive law. This should result in any court in any other part of Australia, under the cross-vesting scheme, applying the ACT's limitation period to any claim. In addition, the situation of claims being made in an ACT court that relate to another State's or Territory's revenue is provided for.
This Bill is, by and large, in a form which is, in current times, being put through as a matter of urgency in parliaments around Australia. The New South Wales Parliament debated similar legislation through both houses in a day and the Victorian Parliament, I understand, also set a speed record for getting legislation through that parliament. We will not be seeking to put this through in a day, but I would stress that in other State parliaments the opposition has cooperated with the government in protecting the revenue. The case here is that some $60m-odd is under threat, but in New South Wales something like $1.6 billion is under threat. The sums across Australia are phenomenal.
The second matter is not irrelevant to the Capital Duplicators decision but is in fact an overdue reform. In the case of McKain v. Millar and Co. the High Court confirmed that statutes that set down limitation periods form part of the procedural law. Accordingly, the limitation law that is to apply is that of the jurisdiction in which an action is commenced. For example, if a motor vehicle collision happens in South Australia, which has, say, a three-year limitation period for personal injuries matters, but a person who was injured in the collision resides in and commences proceedings in New South Wales, or merely moves to New South Wales to commence proceedings, which has, say, a six-year limitation period, the New South Wales period can be applied. This is so even though in other respects the law to be applied will be that of South Australia.
The relevance of this to the Capital Duplicators matter is that, as set out above, the ACT intends to apply a six-month limitation period but some of the States may still be applying a 12-month period. It would be in the interests of an ACT taxpayer to commence proceedings in another State with a longer limitation period. The declaration in the ACT's law that its limitation period is part of the substantive law should be effective to prevent this.
Following the decision in McKain v. Millar and Co., the Standing Committee of Attorneys-General resolved that each State and Territory should enact legislation providing that the limitation law to be applied is that of the place that supplies the substantive law that will govern a matter. In the example given above, these provisions would result in the limitation law of South Australia applying. This is, in effect, to prevent forum shopping across Australia. I understand that this provision is being enacted or has been enacted in all Australian jurisdictions. Madam Speaker, I present an explanatory memorandum.
Debate (on motion by Mr Humphries) adjourned.
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