Additional Comment by Senator Andrew Murray (Australian Democrats)
The Australian Democrats agree with the Committee's Report, subject to
two minor points.
1. Rates of payment to legal aid practitioners
In the first paragraph of the Committee's Recommendation 5 (p. 52) it
recommends that the rates of payment to practitioners be set by the legal
aid commissions at sufficiently high rates to ensure that competent representation
continues to be provided to those receiving legal aid.
It is our view that in setting the rates of payment to practitioners,
the Legal Aid Commissions should consult widely. In particular they should
consult with the Legal Aid Councils, which the Committee recommends be
established in each State and Territory (see Recommendation 15, p. 135).
Australian Democrats Recommendation 1
We recommend that the Committee's Recommendation 5 be amended to add
after the first dot point the following: 'that the Legal Aid Commissions
in setting rates should consult widely, especially with the Legal Aid
Councils which the Committee recommends be established in Recommendation
15'.
2. Tax deductibility of litigation expenses
The Committee's Recommendation 22 (p. 192) is that the availability of
tax deductibility for litigation expenses be reviewed in order to ensure
just and equitable tax treatment of those expenses.
We believe that this recommendation should be more specific, so as to
make clear that tax parity and equity should prevail. We consider that
where a business party in litigation is able to deduct its litigation
expenses, then an individual or public interest group in that litigation
should also be able to claim a tax deduction for their litigation expenses.
For example, at present if a landlord and private tenant are engaged in
litigation about their lease the landlord can deduct the cost, but the
tenant normally cannot because the matter does not relate to the gaining
of income for the tenant. We believe that this should be changed to enable
both parties to claim tax deductibility.
Australian Democrats Recommendation 2
We recommend that the Committee's Recommendation 22 be amended to add
at the end the following: 'and in particular to ensure that where a business
party in litigation is able to deduct its litigation expenses, then an
individual or other non-business party in that litigation should also
be able to claim the tax deduction'.
Senator Andrew Murray
Australian Democrats