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Legislative Assembly for the ACT: 2000 Week 3 Hansard (9 March) . . Page.. 725 ..

MR HUMPHRIES (continuing):

The Bill amends the Interpretation Act, which provides for the interpretation of ACT laws. The amendment serves two purposes. The first is that it removes the possibility of a legal challenge to the validity of determinations of fees and charges. Late last year, the Standing Committee on Justice and Community Safety drew attention to a possible gap in the ACT's law relating to determinations of fees and charges. The committee pointed out that, in the absence of specific provision, it was possible for determinations to be challenged on the basis that they impose a tax.

For any such challenge to succeed, it would be necessary for a person to show that the determination was not a fair recompense for a service that was being provided. It would also be necessary for the person to show that the relevant legislation did not permit a tax to be levied. The Government understands that this possibility is more apparent than real, but it is something that we should address.

The second purpose concerns the goods and services tax. I have gone on record drawing attention to steps the Commonwealth proposes to take under the A New Tax System (Goods and Services Tax) Act 1999. These steps will result in GST not being payable for very nearly all fees that are determined under ACT laws. There will, however, be a number of fees which will result in a GST liability being incurred by the ACT and bodies such as ACTEW Corporation which collect determined fees.

When the collection of a fee will result in a GST liability the ACT, or a body such as ACTEW, will have to choose between passing the liability on or absorbing it. In most cases, the liability will be passed on. The extent to which this will result in fees increasing is not easy to predict. I have pointed out that it will be less than 10 per cent, but this will depend on the extent to which the taxes that are being abolished as part of the new taxation arrangements are embedded in the fee. Of course, any increase in the fee that can be attributed to the GST will leave the fee open to the challenge that it is no longer a fair recompense for the service that is being provided. As set out in the standing committee's report, this will leave the fee open to challenge; therefore, this Bill addresses that and the other issue.

The Bill also makes consequential amendments to the Magistrates Court Act 1930 and the Road Transport (General) Act 1999. These amendments delete provisions that permit a determined fee to impose a tax.

Debate (on motion by Mr Stanhope ) adjourned.

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