Robert Oakeshott (Lyne, Independent) Share this | Hansard source

In beginning to discuss the question before the House, which is a suspension motion, I do want to thank the members of the House who have participated in some lively discussions in the last 15 minutes, including the Manager of Opposition Business, the Leader of the House, the Speaker himself and the various clerks and my crossbench colleagues. For something that was so simple on the surface, this is proving to be a classic example of something that is layered with all sorts of challenges and considerations not only with regard to the question before the House and the following question, where we have a suspension motion to allow a private member to debate anything of their choice. That, I would hope, has the support of all members of this House, and I should not expect any division from any crossbench colleagues or anyone in this chamber. One of the parting comments of the previous speaker was asking for support from the crossbenchers to allow the Abolition of Age Limit on Payment of the Superannuation Guarantee Charge Bill to have a second reading. I think that is a no-brainer for the whole House. I would be very surprised if any member chose to vote against a private member's interests to bring forward something for consideration.

It is the next question before the House, with regard to voting on the substance of the bill, where there are some more layers and challenges. I listened closely to the Attorney-General's advice and the advice from government, and it only further accentuates the point that we have an issue before this parliament that is unresolved and needs to be resolved. As was mentioned again by the previous speaker, we have competing advice from institutions within this parliament with regard to whether this is or is not either an appropriation bill or a tax bill. We need to sort out the question of what is or is not a money bill. We are here in this 43rd parliament for 2½ more years and we can expect many private members to bring forward all sorts of issues, as is their right in a parliament that is alive, and we need to resolve this question, particularly the boundaries and the grey areas of what is and what is not a money bill. This has obviously been a historical dispute between the two chambers of the parliament and it is proving itself now to be a weapon of politics in relation to activities within this chamber. It needs to be resolved.

To emphasise the point, the member for Mackellar has brought forward the Abolition of Age Limit on Payment of the Superannuation Guarantee Charge Bill 2011, as is her right. Yet, in seeking advice, we do get conflicting advice. The member for Mackellar I think somewhat unfairly verballed the clerks in accusing them of drafting the bill and then changing their mind. In defence of the clerks, they will draft anything that a member of parliament wants to bring into this chamber, as is their right. When asked for advice from not just the government but also people such as me, seeking to clarify questions of constitutionality and whether a bill is or is not a money bill, we were provided advice that we can only take on face value as objective and as advice from people working in the parliament's and the nation's best interests. The advice that they have provided is that this bill can be captured as a money bill. Their advice is in some areas worth reading into the record, with the indulgence of the House.

There are several points in the advice received. The first is that there is a standing appropriation provision in the original act—the Superannuation Guarantee (Administration) Act 1992—that appropriates funds from the Consolidated Revenue Fund to make payments on behalf of employees to superannuation funds in the event that the employer does not meet their obligation under the act to pay the necessary superannuation contribution. If this happens, the Australian Taxation Office in turn issues the employer with a debt notice equivalent to the amount of superannuation guarantee payment. Thus it is reasonable to assume that the net effect on government's fiscal position is probably negligible. Nevertheless, technically the proposed bill, if enacted, could give rise to payments under the standing appropriation. Thus if it is not the eventual net position but rather the fact that payments would be made from the standing appropriation that matters, it could be argued that a Governor-General's message would be necessary to cover this eventuality.

The second point relates to standing order 179, which provides:

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

And there are some considerations in that regard that point towards this bill being within the scope of a money bill. The advice from the clerks also suggests that both these issues could be described as technical matters. However, they could give rise to a situation where there is a breach of the principle that the financial initiative rests with government if the need for an appropriation and the imposition of a charge arose as a consequence of the bill being enacted. In light of this, again the advice suggests that an amendment be moved in the consideration in detail stage of the bill that may address some of these issues. That is the advice, on the one hand, from the very good clerks of this chamber—who are apolitical, independent of thought and try to steer a path for legislation in the nation's interests. At the same time, advice has been provided from the Parliamentary Library. I gather that was sought by the member for Mackellar, and I thank her for that. That is conflicting advice indicating that, no, this is not an appropriation bill, because it does not directly appropriate revenue or money from the Consolidated Revenue Fund for the ordinary annual services of the government and nor is it a tax bill because it does not change the scope of any charge. I am happy to make those two pieces of conflicting advice available to the House or to any member of the chamber.

The point is, we need to resolve this question of what is or is not a money bill before we get into the form and substance and issues around ageism and superannuation reform. They are all very noble causes, and I understand the government is looking to bring in substantial reform and I welcome and support that, and I also look forward to participating in debate around that soon. I also congratulate the member for Mackellar for identifying the issues in regard to ageism generally and the need for those in a workforce that is ageing to be able to receive the same rights and entitlements as anyone of any age in that workforce.

Having said that, if we are going to get down to the form issues I think there is a cost to business that I would like to see some more details on. I would be happy to continue the conversation past today and, as well, I would hope that the member for Mackellar and the Assistant Treasurer, who is in the chamber and who I think has carriage of superannuation reform, could actually have a meeting of the minds sometime soon and see whether this issue can be plugged into the overall direction of superannuation reform that will be in place in the next six months, I hope.

The way I read what is going to happen is that we will all support a suspension of standing orders and then we will be considering the substance of the bill. I will not be supporting the bill itself, because of the advice primarily from the clerks in this chamber. But I do flag that we are getting to the point where this is one of the last times this will happen unless we can resolve this issue of defining a money bill and defining clearly the relationship between the lower house and the upper house and then get a clear pathway on this important question. I think we will be starting to look for a test case if the government does not take this on as an issue of importance and substance. With people using this obvious opportunity as a weapon of politics, I am sure that this case will arise sometime soon.

I would hope that, in good faith, the government does try to start a conversation with the other chamber, start a conversation with those who are wanting to get the right outcomes for parliamentary democracy, and then we can be making decisions not based on conflicting advice from various institutions all of whom work for this chamber. I will be supporting the suspension but not supporting the substance of the bill, and I hope this is an issue that can be taken on by this parliament in the broader sense about defining what is or is not a money bill.

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