Natasha Stott Despoja (SA, Australian Democrats) Share this | Hansard source

As the Attorney-General spokesperson for the Democrats this time—for the penultimate time—I rise to speak on the Judiciary Amendment Bill 2008 and also to indicate the Democrats’ support for this bill. The bill responds to the High Court decision in British American Tobacco v Western Australia, which involved proceedings in the federal jurisdiction for the recovery of invalid taxes paid under Western Australian law.

The High Court held that provisions in Western Australian law containing a special notice requirement and limitation period for actions against the Crown in right of Western Australia were not applied by section 79 of the Judiciary Act 1903. Section 79 of the Judiciary Act currently provides that, ‘except as otherwise provided’ by the Constitution or Commonwealth laws, the laws of a state or territory are binding on all courts exercising federal jurisdiction in that state or territory.

In the British American Tobacco case, the High Court held that a Western Australian special limitation period applicable to actions against the Crown would be inconsistent with section 64 of the Judiciary Act as the limitation period would not apply as between subject and subject. As the law was inconsistent with section 64, it was ‘otherwise provided by a law of the Commonwealth’ and so was not picked up by section 79 of the Judiciary Act.

The bill seeks to restore the states and territories to the position it was thought they were in prior to the BAT case. It does so by amending section 79 of the Judiciary Act to ensure that nothing in the Judiciary Act prevents state and territory laws related to the recovery of invalid state and territory taxes from applying, as far as possible, to proceedings in the federal jurisdiction. In introducing the bill, the Attorney-General referred to the fact that it implements recommendations of the Standing Committee of Attorneys-General, SCAG, and that the bill seeks to protect state and territory revenue.

The Democrats consider that this bill provides sufficient clarity to the law in the light of the High Court decision in the BAT case, and for that reason we will be supporting it today.