Page 4130 - Week 13 - Thursday, 25 November 1993
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certainty what the answer to that question is. However, I acknowledge that by creating a window of opportunity for people to sue where they already have and know that they have or believe that they have a right of action is a guarantee of some sort that people's rights are not necessarily being trampled on. I therefore welcome that provision in the Bill.
On the question of retrospectivity, it would greatly ease my mind and those of my colleagues if the Ministers could, in summing up on this debate, assure particularly the Scrutiny of Bills Committee that there is not any substantial element of adverse retrospectivity in the operation of these Bills. That question has been posed, and it would be helpful to know whether that is the understanding the Ministers responsible also have. The Limitation (Amendment) Bill certainly reduces from six years to six months people's rights to recover back payments. It is a matter that might be considered unfortunate, but I think we have to accept that that is a way of protecting the revenue of the Territory.
The taxation Bill, however, goes a stage further, and I must confess to being a little less comfortable with this Bill than with the Limitation (Amendment) Bill. It contains two important provisions. One prevents a person from claiming for the recovery of money where that person has not himself or herself, in a sense, borne the loss or borne the cost of that claim. So a person who has collected a business franchise fee for tobacco products, for example, who has charged that person's customers when collecting the cost of a packet of cigarettes and then claims that the revenue has been illegally collected because of the invalidity of the taxation law on tobacco products, would be unable to recover because that person has passed the cost of that particular tax on to his or her customers. That is, as far as I can tell, a fairly new sort of provision in the law. However, it is not one that I would seriously object to.
I point out that a tax of any kind does potentially affect the business of a retailer in the Territory, and it is possible to argue that they suffer some loss because of a particular tax being imposed, whether or not they personally bear the cost of that measure in the sense of actually paying the taxation themselves rather than asking their customers to pay it. A tobacco retailer in this Territory, I am sure, would be quick to argue that point. The business franchise fee on tobacco products is very high and, undoubtedly, people would argue that that acts as a discouragement to people purchasing those products. That, indeed, is the intention of such a high fee. Nonetheless, it makes the point that those taxes are in some senses borne by or act upon the retailers, even if they do not personally pay the tax themselves. However, the principle is a reasonable one. You should not be able to recover what you have not actually lost, and the Opposition is prepared to accept that principle.
The other provision is, frankly, much more concerning than that. It is the concept of a change in the law not allowing a person to recover a sum of money. I will read briefly proposed new section 95D:
A revenue amount paid before a non-legislative change of the law is not recoverable from the Territory on a ground of invalidity if the ground came into existence because of the change of law.
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