Page 2132 - Week 07 - Thursday, 16 June 1994
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The important thing here is that we should always maintain the principle and not make the law retrospective. Let us have a look at what we can do in the future to make sure that these things do not happen. I am not sure what that solution is, but let us look at it as a beneficial exercise so that it does not happen in the future. It is very important that we do not pass this legislation.
MR CONNOLLY (Attorney-General and Minister for Health) (7.54): Madam Speaker, both the Liberal Party and Mr Stevenson raise an objection to retrospective legislation, and it is true that retrospective legislation is generally something to be avoided. It is very much a last resort. It would be quite extraordinary and, I would agree, objectionable for us to retrospectively change the land rates. It would be reprehensible for us to come in and say, "We have rated properties at a certain percentage for every year since self-government. We are a bit short on revenue. We will go back and retrospectively impose a higher rate of taxation". That would be quite objectionable, I agree.
If you are to take an absolutist position and say that you should never accept retrospective legislation, I would challenge you to answer a question. Mr Stevenson says that ignorance of the law should be no excuse for government or for individuals. Mr Stevenson, the law is what the courts say the law is. Let us assume that there is a challenge to the imposition of rates under ACT rating legislation. Let us assume that a clever lawyer develops an argument, takes it through every court to the High Court, and the High Court rules that, due to a technical error, due to the draftsperson saying "may" rather than "shall" or putting a comma in the wrong place, the imposition of the rates in the ACT under this year's rating tax was incorrect. We had no power to levy the rates and, as we use the same formula for the legislation every year, we have had no power to levy the rates since self-government. Suddenly, some hundreds of millions of dollars of revenue that everybody assumed they had to pay, that they pay everywhere else in Australia and that is quite properly paid is held to have been invalid, due to a court's ruling on a technicality.
Are you seriously saying that if you were in government you would respond to that by saying, "We had better go and borrow $500m to pay back every citizen in the Territory and not recover the taxation" or "We will shut down the entire health system, the entire education system and the entire police force because we have made a technical error in the imposition of the rate."?
Mr De Domenico: No; the first thing you should do is sack the Chief Minister for allowing it to happen in the first place.
MR CONNOLLY: Mr De Domenico, that is a very smart little political argument; but again, taking Mr Stevenson's point, ignorance of the law is no excuse. The law is what a court says the law is and, with the best advice in the world, you can get it wrong. If you were debating the merits of this Bill I would debate the merits of this Bill, but you chose to debate the principle. Mr Kaine and Mr Stevenson said that you should never impose retrospective legislation and you should never retrospectively correct a tax. Mr Kaine even said that this would apply even if it were $50m, but it is only half a million dollars.
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