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Legislative Assembly for the ACT: 2021 Week 10 Hansard (Thursday, 7 October 2021) . . Page.. 2946 ..

This would empower gross ministerial overreach and dramatically reduce public scrutiny of government taxation measures that are of great significance, exempting, deferring or providing a rebate with respect to an ACT tax. This is a decision of some significance. Currently, a scheme can only be determined under the TAA provisions if it is deemed reasonable and necessary to address the COVID-19 emergency. That is the current arrangement. If part 11 is passed, as proposed by the government, the Treasurer would be empowered to determine a tax referral exemption or rebate scheme under any circumstance, whether there is an emergency or not, without having to satisfy any threshold test.

It is very surprising to me that, in introducing these powers to meet the COVID emergency the government agreed to apply a test, even in those extreme circumstances, but now the Treasurer wants to be able to apply these powers at any time without any threshold test. This is a massive leap in policy direction and should be resisted.

Under revenue legislation in the pre-COVID period, a deferral of exemption from, or rebate with respect to, an ACT tax, was only possible almost exclusively under primary legislation. The current COVID-19 measures were passed, as I said, to allow a timely response to the economic impact of COVID-19 measures by allowing such schemes to be implemented by disallowable instruments. But, as I have said as well, even for that purpose there was a test of “reasonable and necessary” that the Treasurer had to surmount. These changes will not hinder the Treasurer in any way or in any circumstance.

Interestingly, the only disallowable instruments implemented under the current TAA provisions were made under section 137(e), being exemptions from tax—five payroll tax instruments, and one with respect to stamp duty. Five of these are actually repealed and there is only one effective instrument running at the moment—disallowable instrument 2021-177, which provides a payroll tax exemption for wages paid to apprentices and trainees during 2021-22.

Passage of part 11 would provide a general power to determine schemes with respect to tax deferrals and rebates when that power was never actually used during the COVID emergency. This is very disconcerting. The government wants a power that was not required during the emergency to be granted for any circumstance without any threshold test. This is a big policy change.

I note the Attorney-General’s comments about standardising powers across legislation. That is a very broad and sweeping comment. And if the standardisation should work the other way, to scrutinise ACT legislation where there is an unnecessary and unchecked discretionary power, perhaps the Attorney-General should reflect it in that direction. The Attorney-General has also stated that there is adequate scrutiny with a disallowable instrument being passed because it requires a human rights compatibility statement. This does not compare, to any serious degree, with the scrutiny available to the community and to the Assembly with the passage of a bill, which, pre-COVID, was the standard approach and reflected a more sensible policy approach than the one proposed at the moment.

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