Matt Thistlethwaite (NSW, Australian Labor Party) Share this | Hansard source

I rise to make a very brief contribution to this debate on the Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010—and I thank Senator Xenophon for allowing me to do so prior to his contribution. The government is opposed to this bill for a number of reasons. I am opposed for the reasons that have been outlined by Senator Brown quite eloquently relating to the process of consultation that is underway between the federal government and the states concerning measures to improve recycling rates and look at schemes to promote recycling in our country.

Traditionally, beverage container deposit schemes have been operated on a state basis and reflect state environmental laws. The two that are operating in South Australia and in the Northern Territory are industry-run schemes on a cooperative basis. That is the approach that I believe is necessary for a successful scheme to be developed nationally, and that is the process that the federal government has entered into through COAG in cooperation with the states. The three largest states in the Commonwealth are involved in that and are essential to the successful development of any container deposit scheme operating on a national basis. I oppose this bill on the basis that there is a great risk that this bill would undermine that process going on at a national level.

I am also opposed to this bill because I believe it raises constitutional issues in the method by which it has been introduced into the parliament. The bill at clause 13 'provides that a producer or importer must pay the levy within 14 days after the end of the month in which the beverage container was sold to a wholesaler, retailer or individual, or to a producer or distributor of beverages in beverage containers.' There is, I believe, an issue of constitutional validity in that it may be construed that the bill imposes taxation. The relevant High Court authority on this issue is the case of Australian Tape Manufacturers Association Ltd and the Commonwealth—a decision of the High Court of Australia of 1993—where the majority of the court, Chief Justice Mason and Justices Brennan, Deane and Gaudron, found that that:

… the collecting body of a fee does not have to be a public body for the fee to be regarded as a tax. Therefore a levy collected by a private body dictated by a statute for public purposes gives the private body a public character.

And therefore raises a question mark over the validity of the levy.

The Commonwealth can, of course, apply a bill for taxation but, as we well know, section 53 of the Commonwealth Constitution says:

Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate—

which this bill proposes to do. Therefore I believe it raises an issue of constitutional validity, and certainly a question mark over the bill, and it is something that would no doubt be considered were the Senate to pass this legislation. That is another reason that I am opposed to the bill. But, on the whole, again I raise the issue of the process of consultation that is being undertaken at the moment with the states and the very great risk that the passage of this bill would undermine that cooperative process.