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Wednesday, 9 February 2005
Page: 31

Senator LUDWIG (11:46 AM) —We recognise that it is not going to be as comprehensive as what we might otherwise be able to provide, given our limited capacity to examine this area. Of course, one of the other problems that I identified much earlier in the whole process is that the government has not adopted what I would call an open and transparent process in investigating bankruptcy per se. If the government recalls, a number of reports were produced that were then not available to the broader public. They were not made public. They hid behind the idea that it might encourage others to pick up the same rorts. I remember asking at estimates whether the government would provide the reports and any of the submissions. We can understand that as a rationale. The difficulty is that we do not know what was examined broadly by the ATO and the various other parties in the broad community.

Of course, what I am concerned about is that we then fall back into another iteration of reports—I think we are up to the fourth now—within this whole area. Bankruptcy has certainly been the focus for the last four years of significant work, but it does not seem to have gone quickly enough or far enough in the time to fix a lot of the problems. Our amendment goes to the situation where people do not lodge tax returns. We can identify that and put in the rebuttal presumption. It does not address the next issue—where they do lodge one.

That poses the question why, if the government know about it, they have not put a provision in the bill to fix the problem in the first place. Their answer to that is, ‘We’ll put it into another committee process and we’ll see if we can address it sometime down the track.’ Effectively, that means that, if they have an open forum in April and they report mid-year or after that, legislation may be drafted by the end of the year. We will be looking now at 2006 before we see some legislation again—six years since we started this process. I find that unacceptable. If there is an interim step that can be taken—which we have put down now—then we should take it. That is the point that we are trying to make.

The government now complain that this amendment might not go far enough or that it might not cover all of the circumstances, but at least it covers some of the circumstances, in our view. It is certainly a better or a small step in this instance. If the government think that they have identified more areas, then I encourage them to fix some of these areas. They can certainly amend our amendment to cover those circumstances, if they can identify and recommend changes. We are always open to areas which might improve legislation. That is the whole purpose of us proposing the legislation in the first place. But I do not hear anything from the government about that. I hear, ‘Let’s go back to the tried and true committee. We’ll go for another report.’

I ask the government will they in this instance make the report public when it is available and completed? Will the submissions that are called upon be made public? They have said that there will be an open forum. Specifically, let us take a look at the report that may be generated from the inquiry this time. There are a number of ways that you can generate inquiries. The best way is where you call for submissions and have terms of reference that are made public, as in a committee process. They are there for people to read and for people—usually counsel assisting, some person assisting the inquiry, the investigative team or the report writers— to then go through a process to come up with their conclusion. Then you have a report.

The ALRC and a number of other renowned bodies within Australia in fact adopt that process. Sometimes they write a paper about it first and then they proceed down that track. So you can look at the iterations to see how they got to the end point. It is instructive and helpful. You can then look at some of the reasons and some of the counterarguments. But in this instance the government, as in the previous reports, will not follow that path. So sometimes you are left with a lack of confidence in the outcome, in how they arrived at some of the end points and the final amendments that they made. You wonder whether there could have been a more comprehensive amendment but it was not picked up, because it was not one that found favour with the big end of town or with the small end of town, for that matter. That always worries me when that process occurs. We are going to continue to insist that this amendment is one step in the process and that the government should pick it up.