Thursday, 14 November 2019

Clause 1 (14:12)

Ms MAXWELL: I would like to ask: what is the government’s current position on the idea that has been floated for a few years now by the legendary Kevin Sheedy of a state-approved Anzac Day lottery to be run alongside the annual Essendon-Collingwood match? I hate saying that word ‘Collingwood’. I would add that it also has the very strong backing of Eddie McGuire and the RSL, as well as Derryn Hinch’s Justice Party. We too like the idea as it would almost certainly raise many millions of dollars in proceeds that that could flow directly to our veterans.

Mr JENNINGS: I thank Ms Maxwell for her question. The forms of the committee sort of discourage me from answering your question, but I will do my best to answer it. Under normal circumstances it is unwise for a minister to start answering questions outside the scope of a piece of legislation—very unwise—as it may lead to hundreds of hours of the committee’s consideration—

Mr Finn: Are you getting a whacking from some of your colleagues?

Mr JENNINGS: No, no, no, I am doing this to myself. Sometimes I allow a degree of licence that I am sometimes punished for by encouraging people to go outside the bill. Having said that, the other limitation that I have is that I have not participated in any process within government that has made a determination about the question you asked me. I do not have the luxury of having a personal view when I am here formally. I informally convey it quite a lot, but formally I am not able to on this occasion.

What I can say is that the spirit and the intent in terms of the outcome of supporting the RSL, supporting Legacy, supporting other ways in which we could provide support to veterans and families who have lost their loved ones is a point well made, and it is a point which is consistent with what is in the bill, which is an apportionment of revenue to make sure that there are some guarantees for funding that goes into the Anzac Day Proceeds Fund.

In spirit and philosophically we are well disposed to the outcome. In terms of the means by which that may occur, I think I would have to allow conversations within government before I could confidently give you an answer one way or the other about whether the government supports such an initiative. We do know that there are prominent members of the community who have advocated for it, and we understand their motivation and their spirit and we support that motivation and spirit.

No question put pursuant to standing order 14.15(2).

Clause 2—no question put pursuant to standing order 14.15(2).

Clauses 3 to 7 agreed to.

Clause 8 (14:16)

Mr RICH-PHILLIPS: I foreshadowed in the second-reading debate that it is my intention to oppose the adoption of clause 8. Clause 8 is the clause which seeks to give retrospective endorsement to the changes that have just been made by clause 7, which are quite technical in nature but in essence relate to the description of what is an insurer for the purposes of insurance duty and in particular the application of insurance duty to offshore insurers who are insuring risks within Victoria. Clause 8 seeks to make that change retrospective back to 2014. On that basis the coalition will oppose clause 8. I would just like to ask the minister to clarify whether it is the government’s intention that through clause 7 and clause 8 new revenue will be raised by these measures as opposed to perhaps confirming existing revenue.

Mr JENNINGS: I thank Mr Rich-Phillips for clarifying that for me but also for the committee and anybody who may understand the issues that we are talking about. First of all, I am pleased that the opposition and other members of the chamber have indicated that they support the mechanism that has now been adopted under clause 7, which provides greater clarification of the intentions of the government of the day in 2014, which made amendments to the Duties Act which have been subject to legal advice that may indicate that certain duties that have been applied under that definition may be successfully challenged legally. The intention of the government today through clause 7 and through clause 8 is to ensure that the intention of the law prior to 2014—that it was the Parliament’s intention in 2014 to preserve—is preserved. So that is the intention of our actions today.

In relation to clause 8 and your question, the government is acting in a way to ensure that the Parliament’s intention is maintained if and when there are legal proceedings, and the potential for legal proceedings, to retrospectively have duties that have been paid paid back to people on the basis of what may be interpreted as being a loophole in the legislation. It is an interesting concept that we are actually teasing out at this moment—which retrospective application are we talking about? The government’s intention is to allow the law to be maintained in the way that it previously applied before 2014 and was the Parliament’s intention from 2014 until now. It was never the government’s or the Parliament’s intention for any revenue that had been derived during that period of time to be at any point in the future subject to retrospective repayment; the government’s actions today are to prevent that from occurring.

There is nobody at the moment who has any legal opportunity to reclaim that money, even though they may have some legal advice that may mean they are optimistic about their ability to reclaim that money. So it is an interesting application of the word ‘retrospective’. From the government’s perspective, we are merely ensuring that revenues that have been legally obtained, with the spirit and intention of the Victorian Parliament, are maintained to be used by the public service and public administration rather than being potentially returned to those who were always liable for this payment but may have been able to, through a loophole, avoid payment of those duties. So that is one answer to your question.

There is another answer to your question: it is not the government’s intention to generate additional revenue into the future with this clarification and the application of this bill. In fact the government believes that if this bill passes in the form that it is, it means that not only has the revenue base been protected and the revenue stream into the future protected, but if your proposed amendment, Mr Rich-Phillips, is successful, then there will be an impact potentially on both the retrospective application of claims made and potentially into the future for further claims, which would erode the revenue base of Victoria. Indeed because that revenue is then allocated and used in forms of the appropriation, it may adversely impact both the appropriation retrospectively and prospectively. The government believes that for those reasons the application of our bill is the best way to preserve the intention of the revenue stream and the validity of the revenue stream, and indeed to protect the appropriation of both this current financial year and future financial years in relation to what has been attributed to these revenues as contributing to the forward estimates of the state of Victoria.

Mr RICH-PHILLIPS: Thank you, Minister. I take from the minister’s answer confirmation that it is not the government’s intent that the operation of clause 7 and 8 be a new impost, and therefore for the processes of this house I assume consideration of our proposal to omit clause 8 will be dealt with as a standard clause rather than as a taxing clause.

In respect of the substance of the minister’s response on retrospectivity, it remains the view of the coalition that, now that legal doubt has been raised with respect to the application of those provisions to offshore insurers, it would be appropriate for whatever legal matters are on foot—and I understand there are a number that are either on foot or about to be on foot—to be determined, and if a subsequent decision is required, for that to be taken at that point, rather than this retrospective clause to be inserted, which effectively will kill off the opportunity for the substantive clause to be tested. So we will pursue our proposed amendment, which is the omission of clause 8.

Mr JENNINGS: Mr Rich-Phillips is discouraging me from debating this issue, and I will choose not to debate it at this point in time.

Mr QUILTY: I will just make a point on this as well. I understand that the generally accepted rule is if government cannot draft its legislation tightly enough to close the loopholes, the government should have to wear the consequences of that. To go back in time and correct your mistakes from the past in order to secure the revenue I feel is quite out of line.

Mr JENNINGS: The only comment that I made is that the law prior to 2014 was not in doubt. The amendment that was made in 2014 created potentially some doubt, and the difference between the position that I am putting and the position that you are putting is that the government does actually not believe in the retrospective claiming of repayments from what was the intention of the Parliament in 2014. The intention of the Parliament was very clear. The government is of the view that the intention of Parliament should be preserved, not the hopes and the aspirations of somebody who may want to avoid paying duty, which was Parliament’s intention, to retrospectively claim it.

Mr LIMBRICK: Does the government have an estimate of how of this money they expect, if this clause does not go ahead, would actually be refunded, potentially?

Mr JENNINGS: I may have an idea about this. I am going to check with my colleagues in the box about this matter.

I was checking the question of, beyond my knowledge of it, who else knew it. I actually think other members of the Parliament may know the number is slightly in excess of $140 million.

Committee divided on clause:

 Mr JENNINGS (South Eastern Metropolitan—Leader of the Government, Special Minister of State, Minister for Priority Precincts, Minister for Aboriginal Affairs) (14:36): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

 Mr JENNINGS (South Eastern Metropolitan—Leader of the Government, Special Minister of State, Minister for Priority Precincts, Minister for Aboriginal Affairs) (14:36): I move:

That the bill be now read a third time.

The PRESIDENT: The question is:

That the bill be now read a third time and do pass.

House divided on question:

The PRESIDENT: Pursuant to standing order 14.27, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.