Page 4129 - Week 13 - Thursday, 25 November 1993
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MR HUMPHRIES (10.39): Madam Speaker, the Opposition will not be opposing the passage of these two Bills. There has been a lot of talk in the chamber in the last couple of days about guns at heads. In one sense, the whole Territory has a gun at its head; indeed, the whole of the second tier of government in Australia has a gun at its head because of the very real fear that the Capital Duplicators case will strike down a significant part of the revenue collection capacity of those jurisdictions.
The ACT is no less affected than most other jurisdictions in terms of percentage of revenue collected from things such as business franchise fees. We therefore have a very significant issue to face up to, and it would be with great trepidation that I would rise in this place to suggest that we should oppose a measure that will secure the revenue of the Territory, particularly considering that there is a retrospective element, potentially, in a decision such as this in the High Court and that the ACT, potentially, has at risk in this decision a sum of something like $200m or more. So the Opposition will be supporting the passage of this legislation.
That is not to say, however, that these Bills are a comfortable or free-of-doubt set of legislation. They do present a very dramatic change in our approach and they do represent, potentially, a serious incursion into the capacity of citizens to sue to recover money under an invalid law of the Territory, or in other circumstances where they might legally before now have recovered moneys. It is impossible to say with any certainty just what the long-term effect of these Bills will be. They are, in a sense, novel laws being developed fairly quickly by a number of jurisdictions in areas where there is some considerable judicial fluidity. The interaction of these Bills with other legislation and with each other is not yet determined.
The Scrutiny of Bills Committee posed the question, having examined the Bills quickly yesterday: Is there an element of adverse retrospectivity about the operation of these Bills? It is a matter that is hard to be certain about. Some attempt has been made to prevent that being the case; I acknowledge that. It is also unclear to what extent it is possible retrospectively and adversely to affect people's rights, given a number of decisions of the High Court already in this area. They were outlined particularly in the explanatory memorandum to the Limitation (Amendment) Bill, and I think that has been quite clearly laid out there. I just comment that the explanatory memorandum to the Limitation (Amendment) Bill is a very good one. It was of considerable assistance in helping us determine what the situation was and what the background to these Bills was.
Let me touch on this question of retrospectivity. As I read the legislation and the explanatory memoranda, people who presently may have some claim under a law which is arguably invalid have six months in which to bring their action. For the next six months their right to recover for the preceding six years is preserved. At the end of the six months, that right is truncated to six months. So in a sense there is an element of retrospectivity only after the period of six months from the gazetting of this legislation. At the end of that six months, those rights are limited. It is possible to argue, I suppose, that a person who does not realise until after May next year that they have a cause of action might lose out as a result of this legislation, but perhaps not. Frankly, I cannot say with any
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