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Wednesday, 1 September 1993
Page: 730


Senator HILL (Leader of the Opposition) (10.18 a.m.) —Pursuant to contingent notice of motion, I move:

  That so much of the standing orders be suspended as would prevent Senator Hill moving a motion relating to the conduct of the business of the Senate, namely a motion to give precedence to general business notice of motion no. 241 standing in the name of Senator Hill for this day, relating to the tabling of documents by the Leader of the Government in the Senate.

The reason for suspension is that this matter has to be dealt with today because the return date in the motion is tomorrow. You will recall, Mr President, that what we are seeking to achieve by this motion is to require the government to table such legal advices as it got in relation to the preparation of the Taxation (Deficit Reduction) Bill 1993 and also the drafting instructions in relation to that bill.

  The critical importance of the matter is that the constitutionality of the bill is very much under question. I have already tabled in this place two opinions from learned counsel to the effect that the bill is unconstitutional. The Senate is therefore being asked to deal with a piece of prospective legislation, the constitutional validity of which is very much in doubt.

  Yesterday, the Senate—I might say very sensibly—resolved to send the issue as a whole to the Standing Committee on Legal and Constitutional Affairs for inquiry and report, and it will report in a fortnight. But the committee does not have the power the Senate has to require the tabling of essential documents. It seems to us that, in order that the committee can properly complete its function, it should have before it not only the opinion the minister tabled yesterday but the preliminary opinion upon which the considered opinion of yesterday was based.

  We understand that the government instructed the draftsmen to draft this bill in a way that would make it particularly difficult for the Senate to oppose the government's increases in tax and new taxes. It did that by asking the draftsmen to link with those taxes the so-called benefits in the bill—the benefits in relation to Medicare and the taxation reductions, although they are just half of the reductions the government promised at the last election. Nevertheless, to link together tax increases with other matters was to make it more difficult for this Senate to oppose those particular taxes. So the drafting instructions to that effect are of great interest to the Senate and, I would have thought, to the standing committee because it can get to the motive of the government in putting the bill in this most unusual—some have suggested to me unprecedented—form.

  As we understand it, the next step in that process was, not surprisingly, that the draftsmen were uncomfortable and wanted a legal opinion from within the government before they were prepared to draft in that way. We are told that that opinion was obtained. That is presumably the preliminary opinion referred to by Mr Rose in his considered opinion that we received yesterday, and I am sure that the Senate would be vitally interested to see exactly what Mr Rose said on that occasion.

  The matter is of major consequence. I think perhaps the Greens and the Australian Democrats are not totally cognisant of the consequences of this bill, if it becomes law, then failing before the High Court next year. The advice of counsel in the opinions I have put to the Senate is that the whole act would then collapse. The benefits of the changes under Medicare would disappear; the tax reductions that are included in the piece of legislation would disappear; the credit unions would be thrown into turmoil because they are now to be taxed under this bill and that taxation imposition would be lost; the increases in wholesale sales tax would disappear and there would be the incredibly complex legal issue as to what right there would be for recovery of tax; and the wine tax would go, with consequences as to whether the recovery of that sales tax could be made. Everyone in the community would be wondering whether they should have kept receipts for their taxes. The whole position would be one of turmoil.

  At least the government, I would have thought, would recognise that it has a responsibility to prepare its legislation in a form where this is least likely to occur. It has not met that responsibility. In order to achieve its grubby political objective, it has put this bill in a form where it is very much in doubt constitutionally. This Senate, before it proceeds with the matter further, has the right to have on the table what legal advices the government got to justify that course of action and the drafting instructions so that we can see transparently exactly what the government's motive was and the risk to which it was prepared to put the economy of Australia to achieve its political agenda. That is all this motion seeks to do. That is why it is urgent; it has to be returned tomorrow. I urge the Senate to support the suspension and then the substantive motion.