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Tuesday, 21 May 1957

Mr WHITLAM (Werriwa) .- The Opposition objects to the removal of the words " based upon reasonable grounds ". The whole principle at stake in this matter is this: Shall a person whom the Commonwealth sues to recover duty assessed by the collector automatically, have to pay the amount which the collector assesses or will he be able to have a court determine whether the collector was reasonable in assessing it? It is a matter upon which we have to determine whether we should rely upon an administrative decision or a judicial decision. The Minister, speaking for the Government, said that in this matter we should rely on an administrative decision which, except in unusual circumstances, is not examinable by a court. The Opposition says that this matter, like all matters where moneys are sued for, should be a matter for judicial decision.

The Minister has given two grounds for wanting to exclude the words " based upon reasonable grounds ". The first is that if we put those words in this section the very absence of the words in other parts of this bill, in the Excise Act and in the Distillation Act will mean that in those other cases the collector's satisfaction does not have to be based upon reasonable grounds. One would surely think that the answer to that argument of the Minister is to insert the words " upon reasonable grounds " after the words " to the satisfaction of the Collector " wherever they occur in this and other acts.

Mr Osborne - But the Opposition does not propose to do that; it proposes to do it once only.

Mr WHITLAM - The Minister has the initiative to introduce bills. If this small amendment is made to all revenue bills, we shall support it. It is no argument for refusing an improvement in one law that improvements will then have to be made in cognate laws. If it is a desirable improvement, it should be made in all of them. The other argument of the Minister was that the law is already well settled. He cited the judgment of Mr. Justice Webb in the High Court on 1st August, 1952, in the case of " The Queen v. Canadian Pacific Tobacco Company Limited ". That decision is not reported in the " Commonwealth Law Reports " or in the " Argus Law Reports ".

Mr Osborne - I shall be glad to lend the honorable member a copy of the judgment.

Mr WHITLAM - The honorable gentleman will be happy to know that another department made a copy available in anticipation. It is not reported in the two series of reports which report High Court decisions. It is not referred to in the "Australian Law Journal ", the " Legal Monthly Digest ", or any other legal journal in Australia which refers to decisions by our highest tribunal and other tribunals.

Mr Osborne - Is the honorable member suggesting that it is not a good judgment?

Mr WHITLAM - Of course, I do not have the presumption to say that, but I say, with respect, that the decision does not bear out the Minister's contention. Other tribunals just as high have given decisions contrary to the Minister's view, and I shall cite one of them.

Mr Hamilton - That is the trouble with lawyers; you never agree.

Mr WHITLAM - When lawyers cannot agree, the Parliament can put the matter beyond dispute. Why not make it certain by inserting the words " upon reasonable grounds "? The Australian Country party, apparently, is prepared to leave to administrative decision matters which traditionally for centuries, since the days of Elizabeth I., have been increasingly placed in the hands of judicial bodies. It is a principle for which it was usually contended that persons of liberal persuasions would go to the stake.

All I say about Mr. Justice Webb's decision is that it is not available to the general public. It is nowhere reported and nowhere referred to. It is plain from His Honour's decision that, when a person is sued for not paying the debt assessed by the Collector of Customs, the onus is on the defendant to satisfy the court that the collector's decision was not honest or arbitrary or capricious or against sound and fundamental principle or based on some fundamental error. The defendant has a most unusual onus and he can upset the decision only on most unusual grounds. We contend that the normal thing should be that, when a defendant is sued by the Commonwealth, the same general law should apply, unless very good reasons are shown to the contrary, as applies when a person is sued by another private citizen; that is, he should show that the debt is a proper one. In this case, the court must give judgment for the Commonwealth unless the defendant can show that the collector was dishonest or was capricious or made some fundamental error. But it does not enable the court to substitute its judgment for the collector's judgment; that is, the plaintiff is the sole judge of the reasonableness of the assessment made. In fact, in this case Mr. Justice Webb gave judgment for the Commonwealth and stated that " the test of liability was the collector's want of satisfaction and not the court's ".

Let me cite a case in the Court of Appeal in England, a court of the same level as the High Court of Australia. It is the case In re the City of Plymouth (City Centre), Declaratory Order 1946; Robinson v. Minister of Town and Country Planning. It is reported in [1947] 1 K.B. 702. The decision was made on an act which provided that the Minister of Town and Country Planning could make certain planning orders if he was satisfied on a great number of matters. The judge of first instance quashed the Minister's order, and the Court of Appeal reversed the judge's decision. Lord Greene, the Master of the Rolls, said at page 713 -

This matter is, in my view, one of opinion and policy as to which the Minister, assuming always that he acts bona fide, is the sole judge . . . No objective test is possible.

His Lordship went on at page 714 -

There are, as it appears to me, a variety of grounds on which this argument (of the applicants) should be rejected. It imports an objective test into a matter to which such a test is entirely inappropriate since it leaves it to the court to decide what matters are and what are not sufficient to justify a conclusion as to requisiteness; this is necessarily so since the question which, according to the argument, the court has to propound to itself will be, was the evidence before the Minister such as to entitle him to be satisfied on the point of requisiteness; and this is to substitute a test formulated, in some unexplained manner and according to some unascertainable principle, by the court itself for the opinion of the Minister to which the language of the subsection commits the decision. . . . The proposition is in general true that a Minister cannot be compelled to disclose to the court material which has come to him in his executive capacity.

In conclusion, His Lordship said at page 717-

How can this Minister, who is entrusted by Parliament with the power to make or not to make an executive order according to his judgment and acts bona fide (as lie must be assumed to do in the absence of evidence to the contrary), be called upon to justify his decision by proving that he had before him materials sufficient to support it? Such justification, if it is to be called for, must be called for by Parliament and not by the courts and I can see no ground in the language of the Act, in principle, or in authority for thinking otherwise. As I have already indicated earlier in this judgment the argument ob behalf of the applicants necessarily involves in the last resort substituting the opinion of the court for that of the Minister.

Lord Justice Somervell, in agreement with the Master of the Rolls, said -

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