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Monday, 8 October 1984
Page: 1432


Senator MESSNER(9.59) —by leave-I move:

1. Page 132, clause 297, proposed new sub-section 8K (2), lines 4 to 8, leave out the sub-section.

2. Page 132, clause 297, proposed new sub-section 8L (2), lines 20 to 33, leave out the sub-section.

3. Page 136-137, clause 297, proposed new sub-sections 8Y (2) and (3), line 37 (page 136) to line 6 (page 137), leave out the sub-sections.

4. Page 142-143, clause 297, proposed new section 8ZL, line 38 (page 142) to line 15 (page 143), leave out the section.

These amendments concern the reversal of onus of proof in the Taxation Laws Amendment Bill. This matter was discussed very extensively in the second reading debate. I do not want to canvass all the issues again, but merely draw again to the attention of the Senate the main criticisms of the Opposition as expressed in these amendments. Under this legislation a former director, officer or manager of a company could find, many years after he had retired, that because of an offence committed by that company he is penalised and an offence is deemed to have been committed by him. That could happen five, 10, 15 or 20 years after that person had retired. We believe that situation to be entirely onerous. We believe that it is beyond the principles of British justice that people could be held to ransom after such a long time. As I point out, there is no time limitation in this Bill.

Quite apart from the fact that a person could be found liable after an unlimited period, we have to consider the circumstances of people who may have retired at the age of 65 and, many years later, find themselves called before a court, charged with offences and consequently penalised and convicted. That takes away the opportunities of those people to obtain access to documents. There is the question of memory of certain events. There is the question of having access to papers that will provide people with the arguments to defend themselves in such circumstances. Clearly the Government has not given any thought to the practical situations which might arise. We believe this to be entirely against the fundamental principles of British justice.

We believe that people will be unduly affected because the Government, as I said earlier, has deemed that an offence will have occurred in these circumstances. In other words, the legislation requires that director, officer or manager of a company to prove that he did not commit the offence. The onus is not on the Commissioner of Taxation to prove that that person committed the offence, had some knowledge of it or was engaged in a conspiracy or whatever. For that reason we oppose clause 297 and seek the amendment of proposed new sections 8K (2), 8L (2), 8Y (2), 8Y (3) and 8ZL. We believe that our arguments were strongly represented in the course of the second reading debate. We feel that the Government is entirely on the wrong track on this matter.

The Minister for Resources and Energy (Senator Walsh) in the course of his closing remarks referred to section 167 of the present Act, which allows the Commissioner of Taxation, if he is not satisfied with the return furnished by any person, to make an assessment of the amount owed according to his judgment. The Minister put that up as a justification for the Government's taking action in this respect, but it seems to me that that is an entirely different way of assessing tax from the way which is envisaged in this clause; that is, that many years subsequent to the involvement of a manager or officer in a company, penalties are assessed for an event that is deemed to have occurred. We believe that quite different issues are involved and seek acceptance of our amendments.