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Monday, 8 October 1984
Page: 1419


Senator MISSEN(8.39) —We are debating this evening the Taxation Laws Amendment Bill 1984, the Income Tax Assessment Amendment Bill (No. 4) 1984 and the Income Tax (International Agreements) Bill 1984. I refer to only two aspects of those Bills. I take the opportunity while Senator Jack Evans is here to say something about his extraordinary outburst and claims about the way in which apparently the Australian Democrats have been conducting government in this country for the last 18 months. There is an extraordinary attitude of whimsy on the part of the Democrats, who often accept relatively minor amendments to government legislation. The Democrats are often bought off very easily by the Government. They then tell the world that they have won a great victory.


Senator Jack Evans —Was section 45D very minor?


Senator MISSEN —I am not saying that the Democrats do not succeed in some things . I am saying that in a number of things they exaggerate the effects of their influence. Senator Jack Evans tonight talked about tax deductibility for gifts such as fodder and claimed that the Australian Democrats actually had persuaded the Government to allow this. However, this will be achieved because the Australian Democrats and my party are prepared to support the amendment and the Government knows that it will be successful.


Senator Jack Evans —I acknowledge that.


Senator MISSEN —Senator Jack Evans took the whole credit for it. In fact, both Senator Harradine and I were working on this matter and arguing with the Treasurer (Mr Keating) before Senator Chipp's Bill was introduced. I remind Senator Jack Evans that Senator Harradine asked a good question on this matter on 25 May 1983. I wrote to the Treasurer on, I think, 28 July making a strong case for a change in the tax deductibility position. A month later Senator Chipp introduced a Bill. That Bill was helpful too because it put the matter on record here. In fact, I have a letter from Senator Chipp, following further correspondence, in which he thanks me for my support of his Bill and my correspondence with the Treasurer. Let us recognise that these matters often require a lot of work by different parties. Senator Jack Evans should not perform as the mouse that roared and endeavour to claim enormous achievements for his party when he realises that many of those things happen because there is a united front on the part of the Opposition parties.

This problem is, of course, one which the Government has not succeeded in overcoming in its Bill. Basically before 1980 tax deductibility was allowed but then followed a change in the attitude of the taxation authorities. From that date they did not allow tax deductibility for gifts of kind. After the horrendous bushfires that swept Victoria and South Australia early in 1983 people were promised by our retiring government that they would be allowed tax deductibility for gifts. They were promised also by Mr Hawke, then in opposition and shortly to come into government that he would do so. Of course they found subsequently that this was not so. From that time the Treasurer resisted the claims which my party, Senator Jack Evans's party and Senator Harradine made that justice should be given to the people who were so generous at that period. The Budget Papers state:

The income tax gift provisions are to be amended . . . to treat trading stock gifted after 21 August 1984 to an authorised fund, authority or institution as an allowable deduction to the extent of the value brought to account as assessable income under section 36 of the Income Tax Assessment Act 1936. This amendment will avert the situation whereby farmers and others seeking to assist victims of natural disasters may be subject to tax on the value of their gifts of livestock, etc., yet not be able to obtain a deduction in respect of value of the gift.

It is extraordinary that the Government can make that statement and yet not recognise that that injustice was applying. Of course, it is of great annoyance to people of a charitable instinct at the time of one of their greatest natural disasters. Fortunately, of course, when our amendment or the Australian Democrats' amendment is passed we will see that justice done. I think it is a real characteristic of this Government that it has had to be forced over the long period of 18 months to do justice in this respect. It is part of the lack of understanding by this Government of needs and also of the charitable instincts of people. One finds this not only in this Government but also in the Labor Government of Victoria where there is such a determination to destroy voluntarism and the desire by people to give voluntary service in the community. In Victoria when people have wanted to give voluntary charity in the community they have also been brushed aside. I welcome the fact that we will succeed in amending this Bill, I trust tonight, and to back date the provision so that the people who gave those gifts will be able to claim deductions.

The second matter I refer to tonight-this is contained in the Taxation Laws Amendment Bill-is reversed onus of proof. I want to say a little about that because it is not just a question of the provision in the Bill. The provision has been criticised quite strongly in the House of Representatives by Mr Howard and other members of the Opposition who called on the Government to give explanations for this unusual course of reversing the onus of proof requiring company directors to prove that they have not committed an offence. Unfortunately, again we have not had an adequate answer.

This is a problem which this Parliament must face up to. The Senate Standing Committee on Constitutional and Legal Affairs faced up to it and issued its report on the burden of proof in criminal proceedings some two years ago. The report was brought down shortly before the end of the Fraser Government. There is no acknowledgment yet by the Government as to its attitude to the various proposals which the Committee, after considerable investigation and having taken a lot of evidence, presented to the Senate. I remind the Senate of this because it is relevant to this matter which will be debated in the Committee stage tonight. On the evidential burden, that is the burden which is placed on a person to give evidence to discharge an onus against him-I agree that it is not unusual for this to be done in certain circumstances-the Committee recommended:

The evidential burden

3. (a) As a matter of legislative policy, provisions imposing an evidential burden of proof on defendants should be kept to a minimum.

(b) In order to enable this legislative policy to be achieved, such provisions should be imposed only in the following circumstances:

(i) where the prosecution faces extreme difficulty in circumstances where the defendant is presumed to have peculiar knowledge of the facts in issue; or

(ii) where proof by the prosecution of a particular matter in issue would be extremely difficult or expensive but could be readily and cheaply provided by the defence.

(c) A detailed review of Commonwealth legislation imposing evidential burdens, and in particular licensing provisions, should be made to ensure that evidential burdens do not rest on defendants unless the considerations referred to in recommendation (b) above apply.

That is only one of several recommendations unanimously made by both Labor and Liberal members of the Committee two years ago. We are yet awaiting the Government's attitude. Meanwhile the Government is proceeding to bring forward reversals of onus of proof without letting us know Government policy in this regard. Just to put the record straight, it is interesting to note that the Minister for Industry and Commerce, Senator Button, made a type of response to a number of Senate committee reports on 15 December 1983-I suppose it was a Christmas gesture-including the burden of proof in criminal proceedings report of the Senate Standing Committee on Constitutional and Legal Affairs, tabled on 25 November 1982. Honourable senators will remember that this Government promised to do better than the Fraser Government and respond to committee reports not six months after they were tabled but three months after they were tabled. However, there is as yet no response. That was an extraordinary promise and it is yet another promise abandoned. I know of other promises made and abandoned by this Government, such as the promise made by it in December last year. It stated:

A detailed examination of this report has been undertaken. It is expected that the Attorney-General will be in a position to table a full response to the report in Parliament early in the Autumn sittings 1984.

We know that the autumn sittings of 1984 have long since passed. As late as 5 September 1984 the Chairman of the Constitutional and Legal Affairs Committee, Senator Michael Tate of the Australian Labor Party, wrote to Senator John Button pointing out this response and said:

That schedule referred to 2 reports from this Committee-'the Burden of Proof in Criminal Proceedings' (tabled 25 November 1982)-

I remind honourable senators, although it is not relevant to this Bill, that that statement also applied to the report entitled the Constitutional Qualifications of Members of Parliament tabled 2 June 1981. It was stated that a full response to each report would be tabled by the Attorney-General, Senator Gareth Evans, early in the autumn sittings. Neither response has yet been tabled . Senator Tate referred also to another report tabled in 1983, also not responded to. Senator Tate continued:

As the response time of three months to which the Government is committed has now passed by some considerable time in the case of each of these reports, I would be grateful if you could inform me when responses can be expected.

I do not ask honourable senators and members of the public to hold their breath because all that has come since 6 December is a letter from Senator Button saying that he is awaiting a response from the Government. The Minister said in his letter:

. . . I have taken up the matters referred to you in your correspondence with the responsible Ministers.

There the matter has ceased. To add to the matters which have occurred and which would have brought these matters further to the knowledge of the Government, I refer to the fact that the Scrutiny of Bills Committee of the Senate has considered this Bill. In dealing with the reversal of onus of proof, the Committee's recent digest stated:

Clause 297 proposes to insert new sections 8K, 8L, 8Y (2) and (3). Each of these sections contains a reversal of the burden of proof. For example sub- section 8K (2) places the onus on a defendant to prove that he lacked guilty intent in providing a false or misleading statement. Section 8L (2) is in a similar form. Section 8Y relates to the liability of officers of corporations. Where a corporation commits a taxation offence the management of the corporation shall be deemed to have committed that offence. In such a case the defendant must prove that he was not involved in, or aware of, the offence. The Committee draws this clause to the attention of Senators in that it might be considered to trespass unduly on personal rights and liberties.

There is no excuse for the Government not to have given some responses on this topic before now. There has been plenty of warning and opportunity to set out the principles which the Government intends to apply.

It may well be that in these particular instances there is a justification; it may well be that they come within one or two of the proposed reasons given by the Senate Committee in its report. But tonight let us hear the Government's reason rather than experience the shuffling that went on in the House of Representatives. Let us hear the real reason why the Government says it must have this unusual provision relating to reversal of onus of proof. I raise this matter tonight not just because it appears in this Bill, but because this Government is gravely neglecting its duty to the community in not repairing the difficulties found by the Senate Committee as to the averments, the onus of proof and the unnecessary burdens of proof of a more serious nature. All these are set out in the report, but the Government is silent. Although the Bill contains many issues that are not controversial and are part of the Budget, I feel that it contains matters which must give some concern as to whether the Government appreciates its full duty to the Australian people.