Page 4132 - Week 13 - Thursday, 25 November 1993
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Let us be clear that we are dealing with a particular problem, given rise to by the Capital Duplicators case, in a way that is going to alter very significantly the rights of potential claimants under laws of the Territory. Let us make it clear that we are talking here about people suing to recover money under an invalid law, a law that is not legally capable of doing what it purports to do. A person who has been paying money under a law says, "I think this law is invalid and I should not have to pay this money". They go to court and prove that they should not have had to pay that money. This is what has happened in the Capital Duplicators case. A person said, "We should not have had to pay business franchise fees on X-rated videos", and they have proved that point in the High Court. This person's right to strike down an improperly constituted law is not being overturned - they still have the right to throw out that law - but they do not have the right to recover money that they have paid under that invalid law. That is a significant step to take; let us be clear about that much.
As I have said, the matter is one the financial consequences of which we cannot easily ignore, and therefore we will support these Bills. But I do say that I think it is incumbent on us to look at this issue more carefully over the coming months. My party has not had the chance to consult with the broader community about these Bills, naturally enough. Having done so, I must say that we would reserve the right to come back and consider whether amendments need to be made to this legislation in the future, particularly in the circumstances where the Capital Duplicators decision in the High Court on, I understand, 7 December does not strike down business franchise fees, as is widely expected. That seems to be the assumption; but, if business franchise fees are not struck down by the High Court, we would perhaps need to come back and ask ourselves whether we have used too strong a device to avert what turns out to be a threat of little consequence. I see the Minister nodding. It is possible that the Government might come back and consider that question as well. This is a very significant piece of legislation being passed today, and I hope that we do not suffer any unintended consequences through its passage.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (10.54), in reply: Mr Humphries raises some very valid concerns and hesitations about supporting legislation in the form the Government currently has before the house, and they are concerns the Government would generally share. We would be reluctant to bring forward this type of legislation in the general course of events. Of course, the situation that faces this Government and governments across Australia is not the ordinary course of events. Alfred Deakin, who was Prime Minister of Australia and also earned a bit of pocket money writing anonymously a weekly column for a London newspaper, was remarkably prescient when in about 1905 he wrote of the Australian Constitution:
The rights of self-government of the States have been fondly supposed to be safeguarded by the Constitution. It left them legally free but financially bound to the chariot wheels of the Commonwealth.
That has proved to be an enduring truth of Australian Federation. The States and Territories have gradually had their taxation powers whittled away, and the inelegant phrase "vertical fiscal imbalance", referring to the fact that the Commonwealth raises the bulk of the money but the States and Territories have to spend it on services such as health and police and education, is the biggest
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