Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Hansard source

I thank Senator Brandis, given Senator Joyce’s previous intervention, for clarifying what the opposition’s position is on this matter. Firstly, I confirm that the government does not support the amendment. I indicate to the chamber that the government is concerned that retrospective operation of the bill and the amendments to the relevant trust deeds would give rise to significant legal complications and that the complications could only be addressed by the enactment of various and somewhat complex transitional and consequential amendments. I am advised that provision would also need to be made for the Commonwealth to provide just terms in respect of any acquisition of property affected by the retrospective application of the amendments to ensure that the bill did not involve an impermissible acquisition of property for the purposes of section 51(xxxi) of the Constitution.

Further, the government is also concerned that an earlier commencement date may have adverse consequences for members of self-managed superannuation funds. Can I indicate to Senator Brandis that the government is proposing further government amendments—which, I understand, will be moved in the House of Representatives—for reasons which I am sure he would understand, which will enable a person who, if this bill had commenced on 1 July 2008, would have been entitled to one or more payments to make an application to the finance minister for one or more replacement payments. This amendment would deal with some of the concerns that Senator Brandis and other honourable senators have raised but would not require the amendment effected by the bill to have a retrospective effect. So I would ask senators who are putting this amendment to consider the concerns that the government has raised in relation to this amendment and to recognise that some aspects of the policy logic behind their amendment are dealt with via the avenue the government is proposing to take in relation to applications being made to the finance minister.