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Legislative Assembly for the ACT: 1999 Week 7 Hansard (30 June) . . Page.. 1787 ..

MS CARNELL (continuing):

Mr Speaker, whilst we concede that there was a mistake which left the Bruce Stadium transactions without proper authorisation, there was no intent on the part of any person to break the law. In the course of examining the transactions associated with Bruce Stadium, Mr Tracey, QC, concluded that the transactions decided on by the Government were within its power to carry out. Again, Mr Tracey concluded that the transactions decided upon by the Government were within its power to carry out. In other words, the Government could have provided the project financing for Bruce utilising the authority conferred by section 38 of the Financial Management Act. The difficulty was the lack of an appropriate guideline to extend the range of investments to include Bruce Stadium. That was an oversight by the Government which was clearly unintentional. Obviously, Mr Speaker, it could have been rectified at any point if the Government or the officials had known that there was a problem.

It is important to highlight a couple of examples where Territory governments have acted without authority, but where that breach was not the result of a deliberate action, or was discovered only after the fact - similar situations where governments have acted without authority, but the breach was not deliberate or maybe was discovered after the event. Let us look back to 1990. Mr Kaine was Chief Minister at that stage. Mr Speaker, the Business Franchise ("X" Videos) Act was introduced to provide for the regulation and licensing of the X-rated video industry and as a means of taxing the wholesale sale of X-rated videos. It was introduced by the Alliance Government, again with Mr Kaine as Chief Minister. However, Mr Speaker, as you will remember, the High Court ruled in December 1993 - by this stage the Labor Government was in power and had been levying this tax for a period of time - that the imposition of the tax by the ACT Government contravened section 90 of the Constitution, being a Commonwealth taxing right that could not be delegated to the Territory. The court ruled that the Alliance Government's X-rated video tax was therefore invalid.

Mr Moore: A court there, not just a legal opinion.

MS CARNELL: Yes, not just a legal opinion, Mr Speaker or Mr Rugendyke - a ruling of the High Court. Mr Kaine and his colleagues would rightly say, as I am sure would the Labor Government which also levied the illegal charge, that they believed that they were acting lawfully at the time when they made a decision to introduce the tax and to levy it; just as this Government is right in saying that we believed that we were acting within the Financial Management Act when we made our decisions in relation to Bruce Stadium. What did the Assembly do in the X-rated videos case, Mr Speaker? It got on with the job of fixing the problem. To protect revenue already collected, two legislative changes were effected in 1993 with a retrospective application to taxes and fees paid under the invalid legislation - retrospective legislation.

To cite another example, members will recall that in 1997, in the Ha and Lim case, the High Court cast doubt on our ability to collect franchise fees in relation to tobacco, petroleum and liquor. In other words, previous governments as well as this one had, in fact, been acting unlawfully for years and years by collecting these franchise fees, which were worth literally hundreds of millions of dollars, Mr Speaker. Was there a no-confidence motion in this Government, the previous Government and every other government in this country over this unlawful action? Of course not, Mr Speaker, because all of those governments believed that they were acting within the law.

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