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Senate Procedural Bulletin



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hc/pro/prob/14651

 

 

No. 191

 

Estimates hearings, 23 May 3 June 2005

 

6 June 2005

 

The two weeks of estimates hearings gave rise to several significant procedural issues.

procedural issues

 

Public interest immunity matters

 

Before the hearings began senators asked for advice on the grounds for refusals by ministers to answer questions. A paper on the subject was prepared, and was eventually circulated to all senators. A copy of that paper is attached to this bulletin. It is an attempt at a brief but systematic analysis of the grounds for what are now called public interest immunity claims by ministers.

 

“Rulings” by chairs

 

Part of the purpose of the public interest immunity advice was to emphasise the point that chairs of committees have no role, as chairs, in raising or determining such claims. Some chairs still believe that they can raise such claims and rule on them. Unfortunately, some chairs also believe that they can rule on all sorts of matters for which there is no requirement set down by the Senate and therefore no basis for such “rulings”.

 

As was pointed out in a letter to all chairs by President Sibraa in 1988, chairs have two substantive roles in estimates hearings:

 

  • to ensure that questions are put and answered in an orderly manner

 

  • to ensur e that questions are relevant.

 

The letter went on to point out that it is for ministers to determine whether questions will be answered by officers or ministers and whether they should be taken on notice.

 

In relation to the relevance of questions, the S enate determined this matter in 1999. As with all committee hearings, the questions must be relevant to the matters under inquiry, and the matters under inquiry in estimates hearings are the estimates of expenditure. In 1999 the Senate resolved, in adopting a report of the Procedure Committee, that any questions relating to the operations or financial positions of departments are relevant questions for the purposes of estimates hearings. Any ruling of a chair in relation to the relevance of questions must therefore reflect this determination of the Senate. This was the subject of an advice to all chairs in 2003.

 

The only other rule of the Senate about the content of questions is in Privilege Resolution No. 1(16):

 

An officer of a department of the Commonwea lth or of a state shall not be asked to give opinions on matters of policy, and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister.

 

The first part of this provision refers to the giving of opinions on matters of policy, and does not prohibit questions which seek explanations or expositions of policy positions or factual questions about when and how policies were adopted.

 

Any rulings by chairs must be based on some known rule of the Senate. It is not open to chairs to make new rules of their own. It is particularly not open to chairs to rule questions out of order because of their content when the questions meet the requirements determined by the Senate. The rights of all senators ultimately depend on observance of this principle. Restricting the rights of senators to ask questions is an extremely serious step, and can occur only by deliberate decision of the Senate. Also, different rulings made by different chairs would result in the rights of senators depending on which committee they are in and who is in the chair.

 

An example of an unauthorised ruling occurred in the Economics Committee on 2 June: the chair ruled that a senator was not permitted to continue to ask questions based on a document unless he presented the document. There is no rule of the Senate which requires a senator asking questions based on a document to present the document to anyone. There is therefore no basis on which a chair of a committee can make such a ruling. It is open to a committee to order, by resolution, the production to the committee of a document which is referred to or quoted by a senator. This is not, however, a matter for the chair to rule on, but a decision for a committee to make by resolution.

 

Questions on notice

 

For some weeks before the hearings, and immediately prior to the hearings, statistics for answers to questions on notice in previous hearings were circulated to all senators. These statistics showed that some questions remained unanswered from the main estimates hearings in 2004, one year ago, from the special procedure for questions on notice adopted by the Senate in November 2004 (see Bulletin No. 186, p. 4), and from the additional estimates hearings in February this year. The reasons for the delay in answering these questions were explored. In one case, it was discovered that an answer to a question had been sent to the Prime Minister’s office for “clearance” in April 2004 (F&PA, 23 May). The President was asked what he intended to do about it, and indicated that it was for senators to initiate appropriate action, while observing that the situation was unsatisfactory (F&PA, 23 May).

 

Senator Murray had lodged a series of questions about government advertising campaigns costing more than $100,000. Although the government had refused to respond to an order of the Senate on that subject, on the basis that the information could be pursued through estimates hearings (see Bulletin No. 178, pp 1-2), and the Department of the Prime Minister and Cabinet was supposed to be coordinating responses, some of those questions also remained unanswered.

 

Budget figures

 

There was an initial refusal by the Department of Employment and Workplace Relations, subsequently superseded by taking the questions on notice, to provide figures not contained in the budget papers, on the apparent grounds that anything not contained in the budget papers must be confidential, although such questions have been routinely answered in the past. A similar attitude was taken to questions about factors used in calculating budget figures. This approach, if followed in the future, promises to be highly restrictive of estimates hearings. It was the subject of two advices to the EWR&E committee which were published and are attached to this bulletin.

 

Source of appropriations

 

Senator Sherry asked in a question on notice lodged in February for figures for total appropriations since 1998 categorised into the sources of appropriations, that is: annual appropriations; special (standing) appropriations; advances; section 31 (revenue) appropriations; section 30A (GST) appropriations; section 20 and section 21 special accounts. A table was provided, and served to demonstrate that annual appropriations endorsed by Parliament are now a minor factor in government funding. The figures for revenue appropriations and special accounts were not provided. For some years senators have been exploring the question of whether this funding structure is in accordance with section 81 of the Constitution, which requires all government revenues to form one Consolidated Revenue Fund out of which appropriations are then made.

 

Other procedural matters

 

Other matters of procedural and institutional interest explored at the hearings included:

 

  • the independence and establishment of the Parliamentary Library (F&PA, 23 May)

 

  • the sufficiency of the funding of the Audit Office, in the light of the outgoing Auditor General’s letter to the Prime Minister (F&PA, 23 May)

 

  • the taking on notice of questions which would have been answered in the pa st and the apparent lack of preparedness of some departments

 

  • the refusal of the Leader of the Government in the Senate to identify particular staff responsible for matters in the Prime Minister’s office, on the basis that the “inner workings” of ministeri al offices should not be revealed (providing another paragraph in the history in the matter of accountability of ministerial staff) (F&PA, 26 May)

 

  • the refusal to disclose where a government decision had been made, and whether it was a cabinet decision, ag ain apparently on the “inner workings” ground (F&PA, 24 May)

 

  • the difficulty of identifying particular programs and other costs in the output structure of the budget documents

 

  • the confusing division of responsibilities in the human services area, with que stions referred to other departments in a sort of circular effect, and a similar problem in indigenous affairs following the abolition of ATSIC

 

  • the role of the Prime Minister’s office in the selection of the new Electoral Commissioner, an independent statutory office-holder (F&PA, 25 May)

 

  • the refusal, later reversed, to disclose the yearly fee of a former departmental officer acting as a consult ant (F&PA, 25 May)

 

  • the government’s contingency funds, the amounts of which are not disclosed (F&PA, 25  May)

 

  • the refusal to disclose late adjustments to the budget figures (F&PA, 25 May)

 

  • an initial refusal, subsequently converted to a taking on notice, to provide documents because they are government documents; it was pointed out that this alleged principle would result in the withholding of a great deal of information (F&PA, 26 May)

 

  • the refusal, later reversed, to provide the number of tenderers for an awarded contract (L&C, 23 May)

 

  • the refusal to disclose the requests by a statutory body (HREOC) for funding (L&C, 23  May)

 

  • a committee allowed a minister to withdraw a document which had been mistakenly handed up by the minister with a tabled document (L &C, 25 May)

 

  • the danger of creating material protected by parliamentary privilege which would then cause difficulties in subsequent legal proceedings was invoked by the Building Industry Task Force (a prosecuting authority) in declining to talk about some cases (EWR&E, 3 June) (see Odgers 11 th ed, p. 404)

 

  • there was no minister for a long period at one of the hearings of the FAD&T committee, but subsequently a hearing was held up due to the absence of a minister

 

  • there were at least two refusals by minister s to answer questions on the basis that they were allegedly taken from leaked documents

 

  • a senator asked about the cost of a “government inquiry” which was in fact an inquiry by a House of Representatives committee on a reference by a minister, but desiste d when this was pointed out (on the principle that the Senate does not inquire into the affairs of the House) (EWR&E, 31 May)

 

  • there was a reluctance on the part of ministers and departments, frequent in recent years, to disclose forward estimates for part icular programs.

other matters examined

 

As always, the hearings were used to explore matters of current public interest and controversy, including:

 

  • the government’s and departments’ knowledge of the Medicare safety net “blowout” before the general electi on

 

  • the costs of investigations of “leaks” from departments

 

  • the government’s options for bringing in its budget income tax changes (this was the subject of two advices, which are attached to this bulletin)

 

  • the quality of administration in the Department of Immigration and Multicultural and Indigenous Affairs, especially the mistaken detention and deportation of Australian citizens (this was the subject of an unusual apology by the secretary of the department at the beginning of the hearing)

 

  • allegedly ant i-competitive behaviour by Telstra

 

  • Telstra’s re-engagement of an officer previously given a redundancy payment

 

  • the Regional Partnerships Program, especially the “strange case” of the Beaudesert heritage railway (this program is the subject of a general i nquiry by the F&PA committee)

 

  • government advertising programs, especially those of a political bent, and their cost

 

  • civilian casualties in Iraq and the failure of government authorities to attempt to calculate them

 

  • alleged killing of civilians by the SA S in Afghanistan

 

  • the Department of Defence’s financial management and stocktaking failures, as identified by the Audit Office, particular the lost items of equipment

 

  • the government’s Future Fund

 

  • the level of ministerial staffing

 

  • the selection of High Court judges

 

  • the alleged failings of the quarantine service, a matter of longstanding interest on the part of the R&RA&T committee

 

  • alleged bias in the ABC (a matter pursued by a government senator over successive hearings)

 

  • the government’s new welfare t o work policy.

accountability report

 

As always, the hearings were intensive exercises in accountability, and resulted in the provision of a large amount of information not otherwise known, but some senators detected an increasing rate of refusal to answer questions, and an increasing tendency to take questions on notice which is sometimes a preliminary to a refusal to answer them.

 

Senate Daily Summary

 

The Senate Daily Summary provides more detailed information on Senate proceedings, including progress of legislation, committee reports and other documents tabled and major actions by the Senate. Like this bulletin, Senate Daily Summary may be reached through the Senate home page at www.aph.gov.a u /senate

 

Inquiries: Clerk's Office

(02) 6277 3364

 

 

hc/pap/14613

19 May 2005

the senate

grounds for public interest immunity claims

 

 

This is a list of potentially acceptable and unaccepta ble grounds for claims of public interest immunity, that is, claims that information should not be provided to the Senate or in the course of an inquiry in a Senate committee.

 

The list is based on precedents of the Senate arising from cases in the Senate and actions and attitudes adopted by the Senate in those cases. The major cases are set out in Odgers' Australian Senate Practice, 11th ed, 2004, pp 464-484.

 

The most significant principle drawn from Senate precedents is that the Senate has insisted that a claim that information should not be produced remains merely a claim unless and until determined by the Senate. Any agreement by a committee to accept a claim is subject to a determination by the Senate, which may be initiated by any senator.

 

Particular claims must be assessed in their particular circumstances. It is in the nature of the process that, short of the Senate compelling the production of the information concerned, there can never be complete assurance that a particular claim is justified. The scope and basis of a claim may be clarified, however, by appropriate questions. The following list suggests the issues which have to be clarified and the questions which should be asked in relation to particular grounds for claims.

 

The terminology "public interest immunity" is significant. The Senate has made it clear that a claim that particular information should not be produced must be based on a particular ground that disclosure of the information would be harmful to the public interest in a particular way. A statement that the holder of information does not wish to produce it, or that the information is confidential, is not a proper claim for public interest immunity.

 

It is open to the Senate to determine that any risk of harm to the public interest by disclosure of information is outweighed by the benefit to the public interest in the provision of the information.

 

The Senate has also made it clear that claims in relation to information held by government must be made by ministers. The government's guidelines for public servants appearing before parliamentary committees also emphasise this principle.

 

Any claim by an officer that information should not be produced should, if contested by any senator, be referred to a minister for a decision on whether to maintain the claim. Where a claim is made by a statutory body which has independence from the government, the decision to raise a claim should be made by the governing authority of that statutory body as a deliberate and properly communicated decision.

 

Accepted grounds

 

The following grounds for public interest immunity claims have achieved some measure of acceptance by the Senate in the past.

 

(1)  Prejudice to legal proceedings

 

This could arise in two forms. There may be a reasonable apprehension that disclosure of some information could prejudice a trial which is in the offing by influencing magistrates, jurors or witnesses in their evidence or decision-making. A case involving only questions of law before superior court judges is not likely to be influenced and therefore is unlikely to provide a basis for this ground. Secondly, production of information to a committee could create material which, by reason that it is unexaminable in court proceedings because of parliamentary privilege, could create difficulties in pending court proceedings. To invoke this ground, there should be set out the nature of the pending proceedings and the relationship of the information sought to those proceedings.

 

(2)  Prejudice to law enforcement investigations

 

For this ground to be invoked it should be established that there are investigations in progress by a law enforcement agency, such as the police, and the provision of the information sought could interfere with those investigations. As this is a matter for the law enforcement agency concerned to assess, this ground should normally be raised directly by the law enforcement agency, not by some other official who can merely speculate about the relationship of the information to the investigation.

 

(3)  Damage to commercial interests

 

The provision of some information could damage the commercial interests of commercial traders in the market place, including the Commonwealth. This is the well-known "commercial confidentiality" ground. The most obvious form of this is the disclosure of tenders for a contract before the call for tenders is closed. The Senate has made it clear in its resolution of 30 October 2003 that a claim on this ground must be based on specified potential harm to commercial interests, and in relation to information held by government must be raised by a minister. Statements that information is commercial and therefore confidential are clearly not acceptable.

 

(4)  Unreasonable invasion of privacy

 

The disclosure of some information may unreasonably infringe the privacy of individuals who have provided the information. It is in the public interest that private information about individuals not be unreasonably disclosed. It is usually self-evident whether there is a reasonable apprehension of this form of harm. It is also usually possible to overcome the problem by disclosing information in general terms without the identity of those to whom it relates.

 

On some occasions it has been claimed that fees paid to lawyers or consultants should not be disclosed, usually on the privacy ground but sometimes on the commercial confidentiality ground. The claim has not been consistently raised, and information on such fees has been readily provided in some cases. The Senate has since 1980 asserted its right to inquire into such fees.

 

It is sometimes claimed that information has been collected on the condition that it would be treated as confidential, and therefore the information cannot be disclosed. This is not in itself a ground for a publ ic interest immunity claim. It must still be established that some particular harm may be apprehended by the disclosure of the information. Those who provided the information may not be concerned about its disclosure, and their approval for the disclosure may be sought.

 

(5)  Disclosure of Executive Council or cabinet deliberations

 

It is accepted that deliberations of the Executive Council and of the cabinet should be able to be conducted in secrecy so as to preserve the freedom of deliberation of those bodies. This ground, however, relates only to disclosure of deliberations. There has been a tendency for governments to claim that anything with a connection to cabinet is confidential. According to a famous story about a state government, trolley loads of documents were wheeled through the cabinet room so that it could be claimed that they were all "cabinet-in-confidence", a story which serves to illustrate the abuse of this ground. A claim that a document is a cabinet document should not be accepted; it has to be established that disclosure of the document would reveal cabinet deliberations. The claim cannot be made simply because a document has the word "cabinet" in or on it.

 

Neither legislatures nor courts have conceded that internal deliberations of government departments and agencies are entitled to the same protection.

 

(6)  Prejudice to national security or defence

 

This claim should be raised in the form of a deliberate statement by a minister that disclosure of particular information would be prejudicial to the security or defence of the Commonwealth. It is usually self-evident whether the claim can legitimately be raised. It has not actually been used extensively before Senate committees.

 

The ground may be extended to internal security matte rs. For example, disclosure of information about security precautions to be taken at some forthcoming public event could well be resisted on this ground.

 

(7)  Prejudice to Australia's international relations

 

There are two bases for a claim on this ground. Disclosure of particular information could sour Australia's relations with other countries. The raising of a claim on this basis would seem to cause the harm which it is apprehended disclosure of the information would cause; foreign governments can thereby conclude that something has been said or written that they would not like. Perhaps that is why it is seldom raised. Disclosure of some information could also weaken Australia's bargaining position in international negotiations, and this would seem to be a stronger basis for a claim on this ground. It would have to be established that there are negotiations in prospect for it to be raised.

 

(8)  Prejudice to relations between the Commonwealth and the states

 

Again, raising this ground, on one basis, would seem to do the apprehended harm. This ground, however, has appeared frequently in recent times in the following form: the information concerned belongs to the states as well as to the Commonwealth, and therefore cannot be disclosed without the approval of the states. The obvious response to this is that the agreement of the states to disclose the information should be sought and they should be invited to give reasons for any objection.

 

There are also some lesser grounds of very limited scope for legitimate claims. Undermining public revenue or the economy may be apprehended in disclosure of some information. For example, proposed tariff in creases cannot be disclosed in advance of their legislative implementation, usually in the annual budget. Some information about interest rates and action to support the dollar also falls into this category. It should be self-evident whether claims on these kinds of grounds are legitimately raised.

 

Unacceptable grounds

 

The following grounds have not been accepted by the Senate in the past.

 

(1)  A freedom of information request has been or could be refused

 

The Senate comprehensively dealt with this suggestion in 1992, and it was formally established, and conceded by the then government, that the fact that a freedom of information request for the same information has been or could be refused under the Freedom of Information Act is not a legitimate basis for a claim of public interest immunity in a parliamentary forum. Some ground acceptable in such a forum must be independently raised and sustained.

 

Similarly, the fact that an exemption under the Freedom of Information Act applies to some information i s not a legitimate basis for a claim in a parliamentary forum.

 

(2)  Legal professional privilege

 

It has never been accepted in the Senate, nor in any comparable representative assembly, that legal professional privilege provides a ground for a refusal of information in a parliamentary forum. The first question in response to any such claim is: to whom does the legal advice belong, to the Commonwealth or some other party? Usually it belongs to the Commonwealth. Legal advice to the federal government, however, is often disclosed by the government itself. Therefore, the mere fact that information is legal advice to the government does not establish a basis for this ground. It must be established that there is some particular harm to be apprehended by the disclosure of the information, such as prejudice to pending legal proceedings or to the Commonwealth's position in those proceedings. If the advice in question belongs to some other party, possible harm to that party in pending proceedings must be established, and in any event the approval of the party concerned for the disclosure of the advice may be sought.

 

(3)  Advice to government

 

As with legal advice, the mere fact that information consists of advice to government is not a ground for refusing to disclose it. Again, some harm to the public interest must be established, such as prejudice to legal proceedings, disclosure of cabinet deliberations or prejudice to the Commonwealth's position in negotiations. Any general claim that advice should not be disclosed is defeated by the frequency with which governments disclose advice when they choose to do so.

 

(4)  Secrecy provisions in statutes

 

It is now well established that a secrecy provision in a statute prohibiting the disclosure of particular information does not prevent the provision of that information in a parliamentary forum. Government legal advisers have accepted this position, and most departments and agencies now realise that they cannot raise a claim merely on this basis. Some other ground must be raised for not disclosing the information. That ground may be reflected in the statutory secrecy provision, but must be independently raised.

 

(5)  Working documents

 

The fact that a document is a "working document" says nothing about its content or status. The great majority of documents in the possession of government could be made out to be working documents. As always, the question is: what is the particular harm to the public interest to be apprehended by its disclosure? The fact that the document may contain something embarrassing to government or its departments or agencies is not a basis for a public interest immunity claim.

 

(6)  "Confusing the public debate" and "prejudicing policy consideration"

 

The Senate formally resolved in 1999 that this is not an acceptable ground for not producing documents in response to a Senate order for documents.

 

A coherent formulation of t his ground would seem to be as follows: the Senate and the public should not find out about matters which are under consideration by the government because they would then debate those matters to the detriment of the government. This is closely related to the "working document" claim, and indeed appears to be the real basis of that claim in many instances.

 

Often in committee hearings general indications of reluctance or refusal to provide particular information are given. In response to these sorts of stat ements the question should be asked: is a minister raising a public interest immunity claim, and, if so, on what particular, known ground?

 

Only when that question is answered can the basis of a claim be explored and considered. A statement by a minister, for example, that "I am not going to provide that information" is not a claim of public interest immunity.

 

The grounds for public interest immunity claims which have gained some acceptability in the Senate and comparable legislatures are also those to which the courts have given weight in determining claims for public interest immunity in legal proceedings. Conversely, a claim which would not be entertained in a court should not carry much weight in the legislature.

 

In relation to all claims it must also be established whether the claim is made against production of the information or publication of the information. Production of information to a Senate committee, except in estimates hearings, does not automatically involve publication of the information. It is open to a committee, except in estimates hearings, to avoid any apprehended harm to the public interest by receiving information on an in camera basis. Estimates hearings are required by the rules of the Senate to receive all information in public, but in those hearings the possibility of a committee receiving information other than in estimates hearings can be explored.

 

Other compromises may be made to allow information to be provided while avoiding the apprehended harm. Reference has been made to the deletion of identifying details where privacy is the issue. Other processes for "sanitising" information have been used.

 

 

 

Harry Evans

Clerk of the Senate

 

 

estimates hearings questions to dewr

 

You asked for advice on the exchange this morning in t he estimates hearing for the Department of Employment and Workplace Relations with the secretary of the department, Dr Boxall, relating to figures used in calculating budget estimates. The essence of that discussion was that questions about such figures were taken on notice, but with an indication by the secretary and by the minister on duty that a “whole-of-government” decision was required on whether the figures would be provided, and government may decide not to provide such figures.

 

At an early stage of the discussion it appeared that there was a refusal to provide any figures which are not included in the budget papers. As you pointed out, a great deal of questioning at estimates hearings is about figures which are not included in the budget papers, and many such questions have been routinely answered.

 

The only substantive rule of the Senate relating to the content of questions in estimates hearings is that, as with all committee hearings, the questions must be relevant to the matters under inquiry, and the matters under inquiry in estimates hearings are the estimates of expenditure. In 1999 the Senate resolved, in adopting a report of the Procedure Committee, that any questions relating to the operations or financial positions of departments are relevant questions for the purposes of estimates hearings. There is no doubt, therefore, that the questions concerned were questions permitted by the rules of the Senate.

 

As you pointed out at the hearing, the Senate has resolved on numerous occasions over many years that there are no areas of expenditure of public funds where any person has a discretion to withhold details or explanations. The important point in these resolutions is that officials do not have a discretion to withhold such information. These resolutions must be read in conjunction with other resolutions of the Senate, going back to 1975, which provide that if a minister considers that there are specific public interest grounds for withholding information at a public hearing, such specific grounds must be submitted to a committee so that the committee, and ultimately the Senate, may determine whether the claim to withhold the information is sustained on those grounds. Before the estimates hearings I circulated to all senators a list of recognised specific grounds for claims of public interest immunity. Attached is a copy of that list.

 

The effect of these Senate resolutions, extending over many years, is that it is not acceptable for ministers or officials simply to say that information will not be provided. A specific public interest immunity ground must be advanced for the committee’s , and ultimately the Senate’s, consideration.

 

Given the resolutions of the Senate, a committee when met with a refusal to provide information should ask that a recognised public interest ground for that refusal be advanced. If no ground is advanced and the committee is met with a groundless refusal to provide information, that refusal should be reported to the Senate. If a ground is advanced, regardless of whether the committee accepts that ground in the particular circumstances of the particular information required, that consideration by the committee also should be reported to the Senate.

 

I emphasise that this advice is not in any way subjective; it is based on the past resolutions of the Senate. I am bound to give the same advice unless and until the Senate expressly repudiates the resolutions which it has made over many years.

 

As requested, I have provided a copy of this advice to the committee via the committee secretary.

 

estimates hearings questions to dewr (2)

Contrary to Senator Abetz’s sugges tion at the hearing this afternoon I did not say, or even imply, in my earlier advice that taking questions on notice is the equivalent of refusing to answer them.

 

On the contrary, in the first paragraph of the advice I recorded that the questions concerned had been taken on notice. I then recorded in the second paragraph: “ At an early stage of the discussion it appeared that there was a refusal to provide any figures which are not included in the budget papers [emphasis added]”. There was no “misunderstanding” on my part, and I do not think the advice could be misunderstood by any reasonable reader.

 

I again emphasise that this advice is not in any way subjective; it is based on the past resolutions of the Senate. I add again that I am bound to give the same advice unless and until the Senate expressly repudiates the resolutions which it has made over many years.

 

tax law amendment (personal income tax reduction) bill 2005

 

You asked for a note on questions arising from this bill and its relationship with PAYG deductions.

 

The bill specifies the new rates of income tax proposed by the government to have effect commencing on 1 July 2005. If the bill is not passed, income tax rates will remain unchanged, in the absence of any other legislative change.

 

The PAYG deductions are prescribed by the Taxation Commissioner by means of withholding schedules made under section 15-25 of Schedule 1 of the Taxation Administration Act. In making the withholding schedules, the Commissioner must “have regard to” the rates of income tax specified in the Income Tax Rates Act, but the withholding schedules do not have to reflect those rates.

 

Therefore, the Taxation Commissioner could prescribe PAYG deductions reflecting the proposed new tax rates, with effect from 1 July, in anticipation of the bill passing, even if the bill is not passed before 1 July.

 

If the bill is passed after 1 July, it still could have effect from 1 July, and the new PAYG deductions, having taken effect from 1 July, could remain in place.

 

Since the Legis lative Instruments Act came into effect on 1 January 2005, withholding schedules are subject to tabling and disallowance (they were not disallowable before then).

 

The disallowance of the withholding schedules reflecting the government’s new tax rates could be avoided simply by making them on 30 June to come into effect on 1 July.

 

If the withholding schedules were to be disallowed before 1 July, schedules the same in substance could not be made for another six months without the Senate’s approval. This problem could be avoided by making the withholding schedules different in some way (and, given their nature, virtually any difference would be a substantial difference). Alternatively, the Senate could be summoned to meet on or after 1 July to approve the remaking of the schedules with effect from 1 July.

 

The rejection or deferral of the bill by the Senate, however, would not prevent the re-presentation of the bill at any time on or after 1 July with a clause making it effective from 1 July.

 

 

 

 

TAX LAW AMENDMENT (PERSONAL INCOME TAX REDUCTION) BILL 2005

 

The advice which I provided to you on 20 May 2005 was provided to others, including the government.

 

This advice was given before the Taxation Commissioner had made and registered the withholding schedules. The withholding schedules were made and registered yesterday, so now they must be tabled within 6 sitting days and are subject to disallowance.

 

At Question Time in the House of Representatives today the Treasurer said that I “now conceded” that the withholding schedules must be tabled and are subject to disallowance, as if my original advice was wrong.

 

To avoid any such implication, I would be grateful if you would release this note and provide it to your colleagues.