Page 4623 - Week 15 - Wednesday, 15 December 1993
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Madam Speaker, the Act does not contain any definition of "bona fide reasons", and in fact the Bill does not propose one. However, decisions of the commissioner are appealable, and I would ask members to bear that in mind. The amendment that is proposed by clause 5, I consider, will result in continual very costly and certainly time consuming legal challenges, for the reason that there are no clear or objective grounds which would guide the commissioner in making his decision, and therefore every adverse decision would be subject to potential appeal.
We acknowledge, Madam Speaker, that the term "bona fide" is used in the current legislation in respect of contracts for the purchase of a person's principal place of residence. I discussed that issue earlier in the debate. Discretion was extended to the commissioner in respect of people purchasing their principal place of residence for a variety of reasons, not the least of which is that people purchasing a principal place of residence do not get a great deal of practice at this matter. They are, for the most part, inexperienced in matters of great moment such as buying homes. For that reason, Madam Speaker, we considered that it was equitable towards those people to recognise that they are usually inexperienced and to provide additional safeguards for them. I believe that this is the appropriate course of action to put in place where people are unable to complete a contract, and that could be for a variety of reasons. It could be, for instance, that they are unable to obtain finance, or it could be that the property in which they have an interest is not completed. Madam Speaker, I think that in terms of a principal place of residence it is only fair and just to make sure that people in that position have the maximum safeguards.
As I said earlier, the provision is, again, an anti-avoidance provision. We wish to avoid the kind of speculation that we know has occurred in other States. By bringing some discipline to bear on the arrangements for refund of duty on rescission of contracts I think we are at least discouraging that kind of speculation. Madam Speaker, I do think that Mr Kaine's clause 5 is not workable. It could result in endless legal action because it does open the way for every adverse decision by the commissioner to go down that track; there is a potential for appeal every time the commissioner draws the line and says, "This is speculative or this is the kind of rescission that we consider should not be subject to a refund of duty".
I would urge members to vote against Mr Kaine's clause 5 for those reasons and respect the anti-avoidance nature of the principal Act as it stands, and not force the Commissioner for Revenue into what I think will be a quite convoluted situation of having no clear guidelines on how he is to act and no clear guidelines as to in what cases he should refuse a refund and which could legitimately be considered to be speculative. I think that Mr Kaine's clause, whilst I realise the reasons why he has put it forward, is simply not workable and could in fact cause a lot more trouble than it is worth.
MR KAINE (12.12): I find the Chief Minister's defence of her position quite unconvincing. I hope for her own case that she is more successful in explaining why she is tampering with the Electoral Bill. She is going to have a hard time justifying that if she cannot do better than she is doing today. Her argument that this gives - - -
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