Page 3425 - Week 12 - Tuesday, 11 October 1994
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Madam Speaker, the Taxation (Administration) (Amendment) Bill has a worthy purpose of ensuring that the Territory receives all the revenue due to it. The Opposition supports it in principle. But the mechanisms it proposes for achieving that purpose are not so worthy. This Bill should be amended. I foreshadow that I will bring up one such amendment in the detail stage. I suggest that the Treasurer review the Bill and propose others, as I have indicated, in the interests of justice.
Sitting suspended from 4.38 to 8.00 pm
MS FOLLETT (Chief Minister and Treasurer) (8.00), in reply: Madam Speaker, I would like to address the issues that have been raised by Mr Kaine in his comments on the Taxation (Administration) (Amendment) Bill. The first of those was, under this Bill, the placing of the onus of proof on the taxpayer. Mr Kaine has indicated that he is not entirely happy with that provision of the Bill. I would like to explain that, under the present legislation, where the taxpayer claims that an assessment is excessive, the onus falls on the commissioner to prove all of the facts necessary to establish that the duty claimed by the commissioner was properly assessed and is payable. Madam Speaker, I am sure that members would know that it is usually the taxpayer who is in the best position to make an assessment of their own affairs. It is the taxpayer who is claiming that the assessment is excessive. It seems to me only just and reasonable that it should, therefore, be the taxpayer who is required to prove their claim that that assessment is excessive.
As Mr Kaine himself has acknowledged, throughout the country, including at the Commonwealth level, this placing of the onus of proof on the taxpayer has been recognised in a wide variety of taxation legislation. That legislation exists in New South Wales, Victoria, the Northern Territory, Tasmania, South Australia, Queensland and the Commonwealth. So, this is not something new that we are doing. It is well recognised. In fact, that principle of the onus of proof resting with the taxpayer has been supported in quite a number of judicial decisions - in the Supreme Court of New South Wales, in the Federal Court and in the High Court of Australia - because it recognises the reality that, in the overwhelming majority of cases, the taxpayer is the person who is best apprised of their own circumstances. So, Madam Speaker, I would like to put that to members for consideration when they are looking at this Bill.
They should also bear in mind that placing the onus of proof on the taxpayer in no way extinguishes the requirement on the Commissioner for ACT Revenue, in the legal process, to furnish all of the particulars supporting an assessment. He still has upon him that requirement to make out the case for his own assessment and to provide all of the particulars relevant to that case. The commissioner also has the obligation to act fairly and reasonably in determining an assessment. So, this is not a diminution of the commissioner's assessment requirements. I think it is fair and reasonable to place the onus on the taxpayer when the taxpayer claims that an assessment is excessive. It seems entirely reasonable to me, and it is certainly a method that has been used throughout the country.
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