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Legislative Assembly for the ACT: 2000 Week 6 Hansard (23 May) . . Page.. 1560 ..

MR STANHOPE (continuing):

The High Court held, among other things, that the money to be raised by the fee was not related to the particular services being performed at the point of entry to the country, but was intended to provide a general offsetting of the administrative costs of certain parts of the department.

Secondly, the scrutiny committee did not point out any gap in ACT law that needed to be closed, but rather pointed out that passing this bill would permit the imposition of taxes by regulation in breach of a long-established parliamentary principle, a principle that was established at least over 300 years ago-according to Mr Osborne, a principle that was established as long as 700 or 800 years ago.

Finally, there will be a dilemma for the administration after 1 July 2000. The Commonwealth legislation imposing the GST does not authorise the ACT to impose the GST, but it does require the ACT to pay the GST. Some fees and charges will be subject to the GST. If the ACT is to recover the GST component of the fee or charge from citizens, that component clearly will be a tax.

This amendment to the Interpretation Act is said to be necessary to permit the ACT to recover the GST component of any fee or charge. The scrutiny committee points out, and the Attorney agrees, that such a broad amendment as is proposed is not necessary to achieve this aim. A more specific amendment aimed at the GST problem alone would suffice.

Despite this problem with the GST, the question for the Assembly is not as posed by the Attorney-General in his presentation speech. Rather, the question is whether the Assembly should permit the possible imposition of taxation by regulation, rather than by an act. That is the question that we are dealing with here. Should this Assembly permit the imposition of a tax by regulation, rather than by an act that the government must present to the members of this place for debate and agreement? That is the fundamental principle at issue here and it is the issue which every member of this place must grapple with in considering this bill.

Permitting the possible imposition of taxation by regulation rather than by an act would remove the Assembly's power to review the levying of taxes by the government, unless the instrument imposing the tax was disallowable. Even in those cases, the Assembly's power would be limited. I acknowledge that Ms Tucker has just indicated that that is an amendment that she might consider. But even where you have a circumstance where the tax was imposed through a disallowable instrument, the Assembly's power is limited because any review would be after the levying of the tax. Arguments would be raised about disallowance disturbing arrangements put in place by business and others on the basis of the tax being levied and refunding the taxes paid before disallowance would always be problematic. In short, in practice disallowance of a regulation imposing a tax may prove to be impossible.

As was stated in the advice by the Clerk to Mr Osborne and read to this place when Mr Osborne presented the particular scrutiny of bills committee report, this power 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 in considering this bill. This proposal is clearly of major significance and challenges a fundamental

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