Mallard Trevor: Taxation (GST and Remedial Matters) Bill — In Committee Speaker Recalled In Committee Procedure Third Reading 
Mallard Trevor: Taxation (GST and Remedial Matters) Bill — In Committee Speaker Recalled In Committee Procedure Third Reading 
[Volume:669;Page:16177] 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 It is obvious which members have been here and which have not. Normally a debate on a title and commencement date would be relatively short but on this particular occasion it is likely to be much much longer because I do not think I have ever seen a bill with such a dog’s breakfast of a Supplementary Order Paper to do with the commencement date. I will start off by reading it to members.  
Normally a commencement clause has just a date but clause 2(6) will replace sections 40 and 41—this is on line 16 of page 6. If we look at the bill as it stands we see that the commencement date runs from line 4 on page 6 through to line 14 on page 7. I have never seen such a complex commencement date—and if that was not enough it is subject to 15 separate amendments on the Supplementary Order Paper. Members can expect members of the Opposition to be debating every single one of those amendments to the commencement dates because we think it is important that the Government is held to account and we think it is important to ensure that it works well.  
I will refer first of all to subclause (2) of clause 2 and I will be fair to the Minister in the chair the Minister for Courts. I am not sure whether she will be the Minister in the chair after dinner. I reckon the Government will give her the sack over the dinner break because of the way this has been handled. Subclause (2) is not affected by Supplementary Order Paper 187. Most of the subclauses in clause 2 are affected by the Supplementary Order Paper but subclause (2) is not. Section 104 in subclause (2) is treated as coming into force on 1 January 2005.  
I want to ask the Government what sort of retrospective approach it is taking to legislation. Section 104 is in Part 7 which I did not get to when we were working our way through the bill. I was cruelly interrupted and I got only two calls on it. Section 104 which relates to goods and services tax amends section ED 4(3) of the Income Tax Act and the changes are treated as coming into force in January 2005. I seek an assurance from the Minister that these changes are beneficial to taxpayers and are not negative.  
It is one of the principles of retrospectivity in taxation legislation that one can be aggressive in a prospective sense but when one is dealing with legislation retrospectively as we are in this case it should be to the benefit of taxpayers only. The assurance that I am seeking is that because of this date—[ 
Interruption 
] No it is not a hard question to answer because it is not one of the more complicated questions that we will be getting to soon—the subclauses that are affected by the Supplementary Order Paper. But under clause 2(2) section 104 is treated as coming into force on 1 January 2005.  
In a similar way I want to now refer to subclause (3) of clause 2 the commencement clause. In doing a cross reference I can confirm that subclause (3) is not affected by Supplementary Order Paper 187 which is very big and will of course be the main focus of the debate on the commencement clause. Clause 2(3) relates to sections 88 89 90 92 and 93. These matters relate to a matter that we had quite a lot of discussion on. We had an interesting discussion with the Hon Peter Dunne on the question of allowances. The Opposition moved an amendment to backdate that particular taxation arrangement. It was not successful but of course if we had been successful we would have had to shift the commencement date as well.  
But again I wanted to check and make sure that these arrangements are beneficial to taxpayers because my interpretation is that they are not and that there is a widening from board to allowances which means that some people will be treated adversely. If we are treating them retrospectively back to 2005-06 and have a commencement date of 1 April 2005 in section 88—it is clause 88 of the bill but it will be section 88 of the Act—than that is a real question.  
The next question I have relates to section 89. My eyes cannot quite see so I ask the Chair whether section 89 is struck out. There may be a line there that is not well printed. Clause 89 of the bill was struck out of the bill at the select committee. I want to check that we are not giving a commencement date to clause that— 
Hon Lianne Dalziel 
: I was going to ask exactly that question. 
Hon TREVOR MALLARD 
: I am pleased someone else is awake. Most of the strikeouts are very clear. It looks like there is a bit of a dirty mark on the page and I cannot quite tell whether section 89 is struck out. It is struck out—I thank the Minister for her assurance on that. I move now to clause 90. That is one of the areas where I do not think there has been a lot of debate. Therefore I will not focus on it especially not in the debate on the commencement date.  
But employment-related loans—this is in clause 92—are very important. Clearly we have already made a decision that it applies to the 2005-06 year and later income years but here we are bringing it into force at an earlier date back at 1 April 2005 which is appropriate for the 2005-06 tax year. But again—and I am interested to hear from my colleagues who have more legal experience than I do—I am very concerned about clause 92 “Employment-related loans: repayment” and the changes that are occurring there. If we are in fact bringing in this legislation as being “treated as” then it is deemed. Geoffrey Palmer would hate this—a deeming provision of this sort. 
Hon Darren Hughes 
: Ever since he left the Law Commission things have gone downhill. 
Hon TREVOR MALLARD 
: Well no. I think that ever since Geoffrey became Attorney-General things have been going downhill for him. We had a few “deemings”. But effectively “treated as coming into force” I think means the same as “deeming” in this context. 
Hon Lianne Dalziel 
: Is that in the SOP? 
Hon TREVOR MALLARD 
: No this is actually in the bill. I am up to only clause 2(3) of the commencement provisions. 
Sitting suspended from 6 p.m. to 7 p.m. 
Hon TREVOR MALLARD 
: I am sure I was referring before dinner to clause 2(3) and I think I dealt with the commencement date of section 92 which of course in the bill is clause 92. I was about to move on to clause 93. Clause 93 “Schedule 22A—Identified policy changes” is a pretty substantial area. The policy changes are within the block at line 27 on page 63.  
The identified policy changes in schedule 22A are treated as coming into force on 1 April 2005. I ask the Minister in the chair—we now have a new Minister in the chair; it is Paula Bennett—for an assurance that these changes are advantageous to shareholders because this is retrospective legislation going back to 1 April 2005. I cannot quite tell whether the Minister is bored already whether she is being caring and pretending to listen or whether she is giving me the nod. She is giving me the nod. [ 
Interruption 
] No she is listening to me and she is giving me an assurance I think.  
I move now to clause 2(4) which deals with when sections 90B and 91 are treated as coming into force. I would like to ask a similar question. These are of course part of the bill as reported back by the select committee. It is not until we get to clause 2(6) that we start to focus on the Supplementary Order Paper. I am sure the Minister is well-briefed on that and we thank her. She will be able to answer the question. Of course there will be a lot more questions when we get down to that part of the Supplementary Order Paper. But in this case I am focusing on sections 90B and 91—which are of course still clauses 90B and 91.  
Clause 90B deals with the investor interest size requirement. It is a new clause that was added by the select committee and it states: “An entity with an investor holding of more than 20% of the total portfolio investor interests in a class does not breach the investor interest size requirement if the investor is listed in subsection (4).” I ask the Minister—because this is being brought in now and it appears to be backdated to 1 October 2007—whether this already exists in legislation at any other point. There is nothing in the bill that indicates that this list which will come into force from 1 October 2007 actually exists now or whether it will be a new list that will be developed by the commissioner. It is listed in subsection (4) of the Act—it is a question of whether as part of subsection (4) it is part of the 2007 or the 2004 amendments to the Act or whether subsection (4) refers to the regulations that flow from this section of the Act.  
I move now to clause 11. Subclause (5) of clause 2 states that “Section 11 is treated as coming into force on 30 November 2007.” The issue in clause 11 is that of special returns. If there is a requirement to furnish a special return under section 17(1B) of the Act can one retrospectively require someone to furnish a return before the current date when it came into force previously? Frankly I do not understand how one makes someone furnish a return now or previously. One has either furnished a return before now and the requirement to furnish a return should come into force now or not—and my colleagues to my left might be able to explain it to me because it is part of the legislation. How can one retrospectively furnish a return? This is a requirement to furnish a return. How could it possibly be retrospective? People have either furnished it or not. If they have furnished it that is fine but they cannot go back and furnish something now.