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Wednesday, 20 May 1936

Senator BRENNAN (Victoria) (Acting Attorney-General) . - As my name has been mentioned in this discussion it is appropriate that I should say a few words about the point which has been raised by Senator Duncan-Hughes. I accept the explanation given by my colleague in charge of the measure (Senator A. J. McLachlan), that theclause has been so worded for the reasons given by him; but with regard to the use of the word "may" where the word "shall" might ordinarily be expected to be used, I can only say that in the courts the word "may" does receive frequently the force of the word " shall ".

Senator Duncan-Hughes - Then why not have uniformity in these four or five clauses of the bill ?

Senator BRENNAN - If the circumstances were exactly the same, I have no doubt that it would be desirable to have uniformity. I agree that very often a taxpayer is overcharged, but it may well happen that in a previous year he has been undercharged, possibly because of his own malfeasance, to use a quite harmless word, and if authority were not expressly given to the Commissioner to set off against an overcharge an amount by which the taxpayer may have been undercharged, the Commissioner would not be entitled to retain the money and make the adjustment. There is, however, a presumption that governments, through responsible departmental officials, will always do the right thing. That is why, sometimes, in legislation referring to the obligations of governments are less manadatory than those relating to private individuals, and as the Commissioner of Taxation is the head of an important agency of government, there need be no fear that he will not do the right thing. If, as has been suggested, the Commissioner does not promptly repay money which, it is said, may rightfully belong to a taxpayer it cannot be put to any improper use; it cannot be stolen; it must be placed in some trust account, which may not be interfered with by any unauthorized person. No possible harm can be done by the retention of the word "may" in those provisions of the bill where the word " shall " might be used. If, however, the word " shall " is substituted for the word " may " in clause 172, the taxpayer who appeals successfully against his assessment may snap his fingers at the Commissioner and evade payment of money, which, because of under assessment in other years, he may owe to the department.

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