Page 2134 - Week 07 - Thursday, 16 June 1994
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I would say to the Independents again to think seriously about the principle at stake here. Technical errors can occur. Even without you knowing it, the law can change. The law is what a court says it is, and there have been many cases where taxation laws, on technicalities, have been struck down. Governments in the past have not had to seek retrospectivity because the courts have said that that money is not recoverable. Now we are in a situation where the courts have said that that money can be recoverable, and the only way to protect the revenue is to introduce retrospective legislation. If you are going to say that that is unacceptable in principle and establish a precedent here that says that you can never impose retrospective measures to correct a technical error, you are putting the future financial stability of this Territory under great risk.
MR HUMPHRIES (8.01): Madam Speaker, Mr Connolly has gone to some length to describe the principles we are working on here; but he has not indicated that he has any principle at all in respect of this matter, any test that he wants to apply to decide how it is that an Assembly like this will try to retrospectively recover money which it has, by a botch-up, collected illegally from the citizens of the Territory. He has attacked the principle that he attributed to us - quite falsely, I might point out - but he has not actually stated any principle of his own for dealing with situations of this kind.
First of all, let me say that the Liberal Party does not take an absolutist position on this matter. It certainly has a grave concern about retrospectivity; but it has never indicated that we would, under all circumstances and in every situation, oppose retrospective legislation. The fact of the matter is that in the past we have supported such legislation. Earlier this year, or it might have been late last year, we passed amendments to the Limitation Act which contained some effectively retrospective controls or limitations on people's rights to sue in our courts. We accepted that because of the circumstances facing us; but, with respect, Mr Connolly has not honestly put before the Assembly the argument as it properly stands, because it is not an absolutist argument for anybody in this Assembly, except perhaps for Mr Stevenson. For everybody else the question is not whether a line is to be drawn but where it is to be drawn.
I ask Mr Connolly to cast his mind back to the debate that we had off the floor of the Assembly some time ago when it became apparent that the legislation which allowed for fines to be levied in respect of random breath tests turned out to be defective. In those circumstances there was, at one stage, a proposition that the Territory would lose considerable sums of money - I think it was several hundred thousand dollars, potentially - by virtue of the fact that people had paid fines for having blown into the bag and having had a positive reading when it was not possible under the legislation for that money to be collected. It turned out, in fact, that those who had pleaded guilty in court could be said to have accepted the law irrespective of its defect, and therefore the amount at stake was much smaller; but, as I recall, Mr Connolly accepted in the end that he would not retrospectively legislate to prevent the small number of people who had not pleaded guilty, who had fought the charges in the court, from recovering money that they had paid as a fine if they chose to do so. In that case Mr Connolly accepted that it was appropriate not to legislate retrospectively.
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