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Tuesday, 21 May 1957

The CHAIRMAN (Mr Adermann - Order! The honorable member's time has expired.

Mr WHITLAM - As no other honorable member has risen to speak I shall take my second period now. Lord Justice Somervell said at page 720 -

It would need, to my mind, clear words in order to entitle an aggrieved person to raise such issues before the court in challenging what is, in my opinion, under the words of the section, a purely administrative decision by the Minister. I think the Act gives the Minister the power to come to his decision as an administrative decision, which no doubt he can be called upon to justify in Parliament, but which be cannot be called on to justify in a court of law on the ground that there was either insufficient or no evidence on which a reasonable man in the position of the Minister could so decide.

Again, Lord Justice Somervell said at page 723 -

The Judge of first instance held that the words " is satisfied " prima facie mean " satisfied on reasonable grounds ".

Honorable members will see that this is on all fours with the present case. The Minister for Air (Mr. Osborne) has said that the words " upon reasonable grounds " are assumed, and that the court before which the collectors' claim is sought to be recovered would determine whether his decision was made on reasonable grounds. That is what was determined by the judge of first instance, who was on the same level as Mr. Justice Webb in this case. But Lord Justice Somervell went on -

No doubt Parliament always intends that a Minister should act reasonably, but this is a matter on which opinions may differ and the question is whether it is for the Minister or the courts to impose the standard. The learned judge look the view that he was entitled to inquire into the sufficiency of the grounds and that taking the evidence to which I have referred as the only evidence before the. Minister there was no evidence that the applicants' property was to bc freshly laid out.

That is, that the Minister could make the order. He continued -

I have, I think, sufficiently stated nay reasons for coming to a different conclusion. It would be undesirable and impossible to formulate precisely what evidence and in what circumstances the courts might examine the Minister's decision under this Act or Acts with similar provisions.

Lord Justice Wrottesley concurred, in a brief judgment, with the two other members of the court. It is quite plain, therefore, that in a decision on all but the highest level - only the House of Lords could give a higher decision in England - it has been held in connexion with a comparable provision to the one before the committee that it is for the Minister to make the decision, and the court is not permitted to substitute its idea of what is reasonable for the Minister's idea of what is reasonable. The court agreed that the United Kingdom Parliament could have allowed the court to substitute its idea of what is reasonable for the Minister's idea, but it did not do so.

Similarly, in this section which the Minister wishes to restore to its former form, and in all the cognate sections of the Distillation Act, the Excise Act and the Customs Act, the Australian Parliament has, wrongly we think, left it purely to the discretion or the judgment of the collector or other official to make the decision. What applied to the Minister in England applies to the collector or the administrative official in Australia. It is plain, applying these English decisions which were given on a higher level than the one which the Minister quoted, that a court would say: "We are not going to make up our own minds whether it is reasonable that the defendant should pay the amount claimed. We just have to be satisfied that the collector was satisfied of the reasonableness and amount of the claim. Then there is no defence unless you can show that the collector was dishonest or capricious or acted on a wrong principle."

There are cases in which courts have examined the judgment of collectors and other officials, and have decided that they have acted on wrong principles. In each case, the court has held that the official has overlooked certain specified matters of which an act has required him to be satisfied. In this bill no such matters are listed. The section here merely provides that when a person who has custody of goods does not account for those goods to the satisfaction of a collector he must pay what would, in the collector's opinion, have been the customs duty on them. In those circumstances, I submit, no court before which such a claim came would substitute its decision for the collector's. No court would inquire into the question of whether the collector had been reasonable in making his decision. It would only go into the matter if the defendant brought evidence that the collector had been dishonest.

Mr Haworth - Is the honorable member saying that the High Court's decision was wrong?

Mr WHITLAM - I say, with respect, that the Minister has wrongly interpreted that decision and the decisions of other and higher courts.

Mr Osborne - I think that the honorable member for Werriwa is talking about two different things - a decision on a question of liability and a decision on an administrative act. The two things are quite different. The honorable member is talking about one, and this act deals with the other.

Mr WHITLAM - It is true that in England there was not a subsequent claim for money, but property rights were affected just as much by the Minister's order under the English act as by the collector's demand under this bill. The only thing that the court could determine when a claim of this kind came before it would be the question of whether the collector had said he was satisfied. Then, unless the defendant could show that the collector was dishonest-

Mr Osborne - Or capricious or unreasonable.

Mr WHITLAM - No. Let me repeat what I have said. Sir William Webb nowhere used the word " unreasonable ". The test that he made was to ask whether the collector's want of satisfaction was not honest, or arbitrary or capricious, or against sound and fundamental principle, or based on some fundamental error. He went on to say that the onus was on the defendant to satisfy the collector. Presumably, the onus would be on the defendant to satisfy the court. The courts in England have held that a court cannot substitute its idea of what is reasonable for what the administrative decision says is reasonable. The Opposition thinks that in these matters, as in any matter where money is sued for, it should be left to the court and. not to some administrative body to determine whether the claim is justifiable. There is no defence here except to show that the Collector was dishonest or capricious - not that he was unreasonable. Mr. Justice Webb defined the extent to which a court can examine administrative decisions under acts such as this. Accordingly the Opposition says that the words as they have come down to us from another place should be preserved. It is not inappropriate to remark that they were put in the bill in another place at the instigation of, I think it will be conceded, the most distinguished lawyer on the Government side in that other place.

Mr Osborne - Not at all.

Mr Hasluck - Is the honorable member in order in referring to proceedings in another place

Mr WHITLAM - I am not reflecting on members of another place in any way.

Mr Osborne - Is the honorable member reflecting on the Attorney-General?

Mr WHITLAM - I reiterate that these words were inserted in the clause in another place by the most distinguished lawyer on the Government side in that place, and I do not reflect on the Attorney-General (Senator O'sullivan) because that honorable gentleman would be the first to admit that he has not had the forensic experience that the other gentleman who moved this amendment has had.

Mr Osborne - Forensic experience, did you say?

Mr WHITLAM - That is what 1 saidthe experience in litigation. The other honorable gentleman has in recent years had more experience of litigation of a general character than any one else on the Government side and is at present conducting a case of world-wide interest before the High Court of Australia.

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