George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

Mr Temporary Chairman, through you: the reason the opposition is not satisfied with the amendments that the minister has foreshadowed will be moved in the House of Representatives, a draft of which has been circulated to us this afternoon, is that they leave people who are in the circumstances of being potential beneficiaries of this bill, arising from a death that occurred prior to now but after 1 July, entirely at the mercy of the discretion of the finance minister. It does not secure their rights. It gives them the opportunity to make an application for what would in effect be an ex gratia payment. And, in our view, if we are going to do this properly, the rights of such people should be secured rather than left to the mercy of the generosity of the government. I do not suggest that there would be any bad faith affecting the exercise of any discretion but, nevertheless, their rights are not secured. As Mr Turnbull pointed out in the speech I quoted from before, it is the most common thing in the world to make retrospective the commencement date for the operations of tax laws and superannuation laws, and we are not persuaded that that cannot be done in this case.

Senator Wong referred to section 51(xxxi) of the Commonwealth Constitution as being a potential hurdle here. I am, of course, not going to compromise the confidentiality of any discussions which we, the opposition, have been party to at the Attorney-General’s office, but can I say that I understand the concern. I have considered the matter, but I think the concern is not soundly based. The concern seems to arise in particular from the possible application to this case of some dicta by the former Chief Justice Murray Gleeson in the High Court’s decision in Theophanous v Commonwealth of Australia in 2005, when His Honour allowed, in an obiter dictum remark, which was not determinative or dispositive of the case at all, for the possibility that the defeasance of a superannuation fund could conceivably be a violation of the just-terms requirement of section 51(xxxi) of the Constitution. But this is all His Honour had to say, at page 134 of the Commonwealth Law Report:

… I would not accept that statutory superannuation or pension benefits are inherently defeasible and that, on that account alone, their modification or withdrawal could never constitute an acquisition of property.

That is all His Honour said. And that seems to be the basis upon which a concern has been expressed among those who advise the government. But might I point out—and Senator Wong will understand this perfectly well—that merely for a judge to say that the defeasance of a fund ‘could never constitute an acquisition of property’ is a very different thing from saying that to create a legislative scheme whereby, conceivably, a claim could be made on a fund which would, in the circumstances of this case, be a de minimis claim—even in the event that there were anyone who would be a potential claimant on a Commonwealth superannuation fund as a result of the death of a partner between 1 July this year and November of this year—would not be regarded as the defeasance of that fund. Nor does His Honour say that it would be an acquisition of property from the fund on unjust terms. He merely says that he is not prepared to say that the modification or withdrawal could never constitute an acquisition of property.

I understand why governments, particularly when they seek legal advice, operate on the precautionary principle—that is entirely proper—but I must say, Senator Wong, that the degree of caution being exhibited by the government in relation to the possible application of section 51(xxxi) of the Constitution in this case to a Commonwealth fund in relation to the miniscule, if any, class of potential claimants is, I think, a concern so little grounded in any likely adjudication of this issue that it ought not to stand in the way of the government doing the right thing and commencing the operation of the legislation from 1 July.