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Legislative Assembly for the ACT: 2000 Week 5 Hansard (9 May) . . Page.. 1232 ..

MR OSBORNE (continuing):

These matters were addressed by the Scrutiny Committee in its original comments on the Interpretation Amendment Bill 2000. The report summarised the highly significant constitutional background of the matter and challenged the contention that there was a "gap" in the Territory law that needed to be filled by the new provision. (No doubt you have read and re read this). The report also offered an "out"-to the extent that there may be a problem with the GST (the committee was guarded on this-it did not appear convinced there was a problem [though there may well be one - see the Minister's letter of 14 April)] it could be dealt with by a much more limited provision, ie by providing that if an Act authorised or required the determination of a fee, charge or other amount, the power included the power to make such determination as takes into account the GST.

The Minister's response on 14 April reiterated and expanded the Government's position and called for clarification on one aspect of the committee's report. The committee made further comment in its Scrutiny Report No.6. These comments addressed the issues raised by the Minister ((a) vesting powers to determine fees in persons other than Ministers (b) removal of the possibility of judicial challenge to the determination of fees on the grounds that they could be taxes [the committee's view on the latter was that this would not necessarily be seen as a virtue]).

I can only reiterate the general views made by the committee. Clearly, the onflow of the GST in determination of fees and charges has to be addressed and the committee's proposal to restrict the proposal to legally include the GST in price determinations appears to be a very acceptable way to address this problem.

To proceed down the path as proposed in the legislation is of major significance in the Assembly and could have major implications in the future. To authorise the raising of taxes by subordinate legislation is a critical step and a fundamental principle is at stake. Clearly, subordinate legislation does not have the same level of scrutiny as primary legislation-parliamentary review only occurs after the fact (this is critical in this case) and to seek to disallow then would probably raise a raft of administrative issues as indicated in the committee's last report on the matter. It would also be likely to raise a raft of political issues as well. Once a tax is imposed it can prove very difficult to undo-there are significant precedents of temporary taxes becoming permanent taxes.

It is not suggested that this Government would misuse or abuse the power. The power, however, will be available in the future in possibly very different circumstances than exist now-it could be argued that there is clearly a duty of care for the future here.

I did consider another possibility, however, on reflection, I have concluded that this is not nearly as acceptable as the initial proposal made by the committee to address the issue of addressing GST costs when fees are determined and is nowhere as good as the established procedures.

By way of summary:

The proposal is clearly of major significance and challenges a fundamental principle of representative democracy;

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