Goodness me, we all make mistakes. I’m not immune from making mistakes, and I’m sure others aren’t either. But just to explain what has happened here, for those watching or listening to this debate: essentially, ASIC was charging fees which they were not entitled to charge under the legislation passed by this place. This went on for a number of years, and it wasn’t picked up during that time. Something in the order of $68 million was paid by business owners across Australia in relation to charges that should not have been levied under the way the legislation was actually drafted.
Congratulations to the members of ASIC’s internal audit team who identified the error — hats off to you. We are now faced with the issue of whether we should retrospectively change the law so that the fees charged were, in effect, required to be paid. Under the law passed by this Parliament, those fees were not lawfully chargeable, yet $68 million was collected without a legal basis. Now we are being asked to go back in time, over many years, and change the law ex post facto so that these overpaid fees do not have to be repaid to thousands of business owners across the country.
So what are we to do in a case such as this? I note the Economics Legislation Committee’s report supporting this bill. On the basis that this falls into that very rare — and it should always be rare — category of cases where it was always the intention that the fees charged under the law should be the fees that applied, and on the basis that businesses generally understood these were the fees they were required to pay, I believe this situation just crosses the line in favour of retrospective legislation. I am prepared to support it on that basis.
But let me say a few things about this. First: where is the QA/QC — the quality assurance and quality control — in relation to this legislation? What happened such that this mistake occurred? Legislation coming into this place must go through numerous scrutiny processes, and if nothing else, this situation underlines the importance of those processes. Before the legislation even reaches this place, we would reasonably expect the same QA/QC standards that this government expects of businesses every day. Those standards should also apply to the government agencies imposing fees.
So something went wrong — before the legislation reached this place, when it was in the relevant minister’s office. Why wasn’t it picked up then? Why wasn’t it picked up in the House of Representatives, in their committee processes? Why wasn’t it picked up in the Senate, through our scrutiny processes?
And importantly: how do we ensure this sort of error never happens again? Because here we are, 14 years later — 14 years — passing a piece of retrospective legislation to validate fees that were charged unlawfully to Australian businesses over more than a decade.
