Page 2130 - Week 07 - Thursday, 16 June 1994
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The more fundamental issue here is the fact that governments, in exercising the taxation power, are obliged to comply with the law. The Government cannot levy taxes, except in accordance with the law. Here we have a case where for some time the law has been defective, and the Government wishes to correct the defect in that law. I see that as a fundamental issue, and it is not one that I can go along with. The law is defective because the Treasurer issued a defective instrument. Nobody else is responsible. The Treasurer herself issued a defective instrument that did not provide the legal basis for collecting a tax. Now the Treasurer wants to say, "Oops; I made a mistake. We will correct the law retrospectively to November 1992 so that my little error is no longer an error".
If we adopt that principle as a matter of practice, the Government can come to us at any time and say, "We have made a little mistake. It will cost us $50m if we have to pay it all back". In this case it is only half a million dollars, but it could be $50m or $100m. So the Government comes along and says, "It does not matter that it disadvantages people who have paid this tax when they should not have been obliged to pay it. We are going to retrospectively apply the tax and, although they were not liable to pay it yesterday, they will be liable to pay it today, even though it goes back to November 1992".
I think the Chief Minister and the Government have to acknowledge that there is a very serious principle at issue here. It is not just a question of whether the Chief Minister put her name to a defective instrument that can now, presumably, be rectified by a vote on the floor of the house. It is much more fundamental than that. I simply cannot support the Government's argument that this Assembly should validate this matter. It is too fundamental an issue for us to do that. If we do, we acknowledge that the Government can never be wrong in levying a tax. No matter how defective its decisions, no matter how defective its law, no matter how defective its instruments, it can simply come to the Assembly later and say, "You did this once before Therefore there is a precedent, and therefore you should okay it this time". I do not accept that.
I think the Government has a problem. They have collected half a million dollars worth of tax which they did not have the legal backing to collect. Now the Chief Minister is saying, "It is merely a technicality"; but the technicality is a very interesting one. It does not concern only the instrument the Chief Minister and Treasurer signed; it concerns the explanatory memorandum that accompanied it. So now there are two documents that are defective, not just one. One has to ask just how much detail and attention the Chief Minister and Treasurer gives to the instruments she signs.
Mr De Domenico: And how good is the advice that is given to the Chief Minister.
MR KAINE: One can ask that second question, I suppose. The responsibility ultimately resides with the Minister. This is not a case where the Minister can say, "One of my officials made a mistake and therefore I am not guilty". That has been said once before and it did not wash; but this is certainly not a case where that can be said, in my view. This is a case where the Chief Minister and Treasurer herself signed the document and presumably endorsed the accompanying explanatory memorandum. It is not good enough simply to come along 18 months later and say, "I goofed. Just give me the okay and everything will be all right. Those people who paid the $500,000 tax, which they really
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