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Thursday, 24 March 1994
Page: 2162

Senator COOK (Minister for Industry, Technology and Regional Development) (11.43 a.m.) —This is the Taxation Laws Amendment Bill (No. 4) 1993 that we are debating. First of all, coming this morning new to this, I appreciate the work done in representing the government's point of view in the earlier debate by the parliamentary secretary, Senator Sherry.

  I should also say up front, in response to the comments that have been made, that the government does appreciate the response of the opposition, the Greens and the Democrats in what they have put on the Hansard today. I understand that what is being said here is that, while the legal opinions that have been provided may be supported in this chamber by some or all of the parties I have referred to, nonetheless the requests can go forward on the basis that the issues of constitutionality are not determined in this chamber.

  What we have for discussion is a constitutional matter touching on the third paragraph of section 53 of the constitution. It relates to the powers of the Senate in bills of this nature—bills where a proposed law to increase a proposed charge or burden on the people might have effect. What we have come to, as I understand it, is an opinion—now incorporated in Hansard at the request of Senator Watson—from the respected Clerk of the Senate expressing a view about those powers and what the Senate's capability is. As a representative of the government and of the law officer of the Crown, the Attorney-General, I have a contrary view as to what the powers of the Senate are and how these requests should proceed.

  I will not oppose Senator Watson's proposals, which are supported by Senator Margetts and Senator Coulter. In fact, I will facilitate them, recognising that they are facilitating these requests and therefore enabling the government's procedures to go forward. However, they do leave open the question of what is the right course should the constitution be tested. My advice is that this is not an issue which is, to use a legal phase, justiciable; that is to say, it is not an issue that can be taken to a court and determined by a court.

Senator Harradine —Section 55 can, but section 53 cannot.

Senator COOK —Quite so. Therefore, both houses of parliament need to have a view about it. The government is not opposed to the matter going to the Senate Standing Committee on Legal and Constitutional Affairs in the manner proposed by Senator Coulter. That would not obstruct our dealing with these requests today. They would go forward. But the issue would be subject to a committee proceeding. If that is the wish of this chamber—we are not pushing for it—the government would not be opposed to that process as a way of dealing with it. But, if it is the wish of this chamber to deal with it in another way, we would not be opposed to that either. I indicate that we would not obstruct in any way—in fact, we would assist—the reference of this matter to the Senate Standing Committee on Legal and Constitutional Affairs at a later point.

  Senator Watson has incorporated the advice of the clerk. I seek leave of the Senate to incorporate alongside the clerk's advice the advice to me as minister from the Attorney-General setting out the reasons why the government holds the view it does and the advice I have received from my law officers so that, as Senator Watson has said, both opinions are in Hansard and people can form their own views.

  Leave granted.

  The document read as follows

Office of General Counsel

23 March 1994

Commissioner for Taxation

PO Box 900


ATTENTION: Ms Sandra Peacock


I refer to your urgent request for advice concerning the Bill and the operations of the third paragraph of s.53 of the Constitution.

2.  The third paragraph provides that the Senate `may not amend any proposed law so as to increase any proposed charge or burden on the people'.

3.  A question has arisen whether changes proposed to be made to the Bill in the Senate concerning company tax instalments would have the effect of increasing any proposed charge or burden on the people within the meaning of s.53.

4.  Assuming that the proposed changes would impose more onerous obligations on at least some taxpayers—for example, if they changed the instalment arrangements so that some taxpayers would have the times for making their instalments brought forward—there is, in my view, a reasonable argument for saying that such a proposed change would `increase any . . . burden on the people'.

5.  The Clerk of the Senate has noted in his letter of 22 March 1994 that the Bill is classified as a Bill which does not impose taxation. The Clerk asks `(h)ow can an amendment increase a proposed charge or burden on the people when the bill to be amended is classified as a bill which does not impose taxation and therefore presumably does not propose any charge or burden on the people?' With respect, this Department does not agree that a Bill which does not `impose taxation' is not capable of `increasing (a) proposed burden on the people'. For example, a change making tax instalments payable weekly instead of monthly would increase the `burden' on taxpayers but could not be said to `impose' taxation.

6.  Of course, there is no reason why the Senate may not proceed by way of request in the present circumstances. Even if the Senate is entitled under s.53 to proceed by way of amendment, that would not prevent it from proceeding by way of a request. Resolution of the matter is for the Houses themselves. By contrast with questions under s.55, this matter is not justifiable.

Yours sincerely


Peter Lahy


Senator COOK —There is nothing further for me to do but to thank all the parties here for their accommodating approach. People external to this place have the idea that the adversarial system of politics means that we disagree and fight, sometimes in an unseemly manner, on every issue. The views expressed here represent a triumph for good sense. I acknowledge that and thank the parties for it because it enables the operations of the government of this country to function smoothly.