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Wednesday, 23 March 1994
Page: 2038


Senator HARRADINE (12.19 p.m.) —This is a very important matter. The heart of good governance and, indeed, democratic government is certainty before the law. There appears to be a degree of uncertainty in the mind of the government as to the procedures that are to be adopted in respect of legislation. That does create a degree of uncertainty. It is a matter of concern and is quite contrary to the principles of good government.

  If this has been a matter for the government for some considerable time—as it appears to have been—then surely there must be some written advice in a form which could be tabled anywhere for consideration, whether it be here, in the High Court or anywhere. This is a very important question, as Senator Watson and Senator Short mentioned. It is a very serious constitutional question.

  I have no doubt, having been here I suppose longer than almost anybody currently in this chamber, as to our rights and responsibilities in this matter. They have been clarified in the letter from the Clerk of the Senate to Senator Cooney, the Chairman of the Standing Committee on Legal and Constitutional Affairs. That letter makes it very clear that the Taxation Laws Amendment Bill (No. 4) 1993—the bill which we are considering—is classified as a bill which does not impose taxation. It notes the point that we have been discussing, that many of the amendments to be moved by the government are in the form of requests because the government takes the view that they have the effect of increasing liability for taxation and, therefore, fall within the third paragraph of section 53 of the Constitution in so far as they would increase any proposed charge or burden on the people. In his last paragraph on page 1 and first paragraph on page 2 the clerk states:

The paradox is readily apparent. How 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? How can a bill which could be introduced in the Senate (because it is not a bill imposing taxation) then be amended in such a way as to increase the burden of taxation? Can the Senate introduce a bill which it cannot itself amend in that way? If the proposed amendments have to be requests because they would increase a charge or burden on the people, does it not follow that the provisions in the amendments actually impose taxation?

It seems to me to be eminently clear. I do not quite know why, in recent times, we have had this preoccupation by the government that amendments to bills such as these should be in the form of requests. I think we have to act in the certainty of what we have done over many years. Mr Chairman, I believe that you have been called upon to give a ruling. I hope that you will give the ruling in accordance with the practice that has been adopted by the Senate without challenge while I have been coming to this place, and that is 19 years or so.