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Legislative Assembly for the ACT: 2000 Week 6 Hansard (25 May) . . Page.. 1879 ..

MR HUMPHRIES (continuing):

which lies in the hands of somebody who is seeking something from the territory to be brought forward. Do not forget that a court of law looks at the onus of proof. If the onus falls on party A and party A cannot discharge the onus, then generally speaking party B will succeed.

If we take out subclause 26(2) and the commissioner cannot satisfy somebody else that there is a solid case against a particular application, then in some cases at least the application will have to succeed and the territory's revenue will go out the door. So the second argument is that this provision appears, I understand, in at least some equivalent legislation elsewhere in the ACT.

Thirdly, the most important argument is that this provision appears, I understand, commonly in legislation across the country for the first home owners scheme. If we take it out, if we do not make it more difficult for people to falsely claim moneys against the scheme, I do not know what the Commonwealth is going to say about the application of the scheme. I do not know whether they are going to come back and say to me, "Sorry, this is not the scheme that we promised to fund. We wanted you to provide a scheme whereby we had measures in place to protect this funding. You have changed the conditions." You are applying conditions which, to the best of my knowledge, are not the same as the ones appearing in other state legislation.

In those circumstances, the Commonwealth may say, "Sorry, you are not fulfilling your part of the bargain; you do not get the funds."

Mr Hargreaves: Was that a precondition?

MR HUMPHRIES: Yes.

Mr Hargreaves: Was every single word in the act a precondition?

MR HUMPHRIES: No, it was not like that.

Mr Hargreaves: Where is the problem, then?

MR HUMPHRIES: I will explain what happened. The Commonwealth gave us a template scheme and said, "Please implement this scheme." They acknowledge that some variations are possible to reflect particular practices in particular jurisdictions. For example, it might not be commissioners for revenue who administer it; it might be commissioners of taxation, receivers of public moneys or something of that kind. Differences of that nature could appear, but the elements of the scheme have to be the same. I do not know whether reversing the onus of proof on objections satisfies the Commonwealth; I just do not know.

Mr Hargreaves: Why don't you find out?

MR HUMPHRIES: We can find out, but not at half past nine on a Thursday night. I do not think there is anyone available at this time of night to find out, Mr Speaker.

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