Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

I submit that the motion moved by the Leader of the House for the suspension of standing and sessional orders should be agreed to, because there is an important constitutional issue to be considered in respect of this private member's bill. I submit to you, Mr Speaker, specifically that there is no proper basis for the bill to proceed once it is called on. There is no proper basis for it to proceed in the House of Representatives, having regard, first, to the requirements of section 56 of the Constitution and, second, to the fact that the bill could not properly have been introduced into the House in view of standing order 179(a).

I addressed the first matter generally in a letter of advice to you, dated 16 February 2011, which you tabled on 21 February of this year. I will briefly revisit that constitutional issue before discussing the requirements of standing order 179. Essentially, under Australia's constitutional arrangements, the government of the day is responsible for the management of public revenue and the budget. Specifically, section 56 of the Constitution states that laws appropriating money shall not be passed unless the purpose of the appropriation has been recommended by message of the Governor-General. The Governor-General's message can be given only on the advice of the government of the day, and this procedure is reflected in standing order 180. House of Representatives Practice, fifth edition, 2005, at page 409, states that an appropriation bill includes a bill that would have the effect of increasing or extending the amount that may be paid out of the existing Consolidated Revenue Fund. In my letter of advice to you, I outlined the historical background of these provisions and referred to the previous advices provided by the then Attorney-General, Sir Garfield Barwick. In particular, Sir Garfield was of the opinion that a bill appropriating money includes a bill that has the effect of liberalising the conditions under which the benefits are payable. I will shortly discuss why the subject bill would have that effect.

Before I do so, however, I refer to the second issue to which I have referred—that is, the requirement of 179(a), which provides:

Only a Minister may initiate a proposal to impose, increase, or decrease a tax or duty, or change the scope of any charge.

The Abolition of Age Limit on Payment of the Superannuation Guarantee Charge Bill 2011, if brought on, would have the effect of both changing the scope of the charge and also introducing an appropriation. In particular, very briefly, I know that this bill proposes to abolish the age limit relating to the payment of superannuation contributions for employees. If the bill was passed, employers who did not make the superannuation contributions for employees aged over 70 would be liable—

See this speech in context