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Wednesday, 11 November 1964

Senator MURPHY (New South Wales) . - I rise to support the criticisms that have been levelled against this and other clauses on the ground that the discretions that are to be given to the Commissioner of Taxation are far too . wide and therefore unjustifiable. We live under a system of law. Law means certainty. What has just been said by Senator McKenna illustrates the kind of situation into which we are falling with this kind of bill. The honorable senator's suggestion is most helpful in the situation in which we find ourselves, but we should never have been put in that situation. A citizen should never be in the position where he has to go to the Commissioner of Taxation or some other official to seek advice before entering into a transaction or before ordering his affairs.

There ought to be certainty in all law so that persons may order their affairs and know- whether or not they are observing the law. Whether citizens are rich or poor, innocent or villianous, they are entitled to know exactly where they stand according to the letter of the law and should be able so to order their affairs. They ought not to be put in a position where they cannot know before entering into a transaction exactly what will happen and whether the tax they will have to pay will depend ultimately upon the discretion of a public official. That places an unfair burden on the public official. The Commissioner and his officers should never have to bear the burden of discriminating between persons. In this legislation the Commissioner is not being given the guidance to which he is entitled. The community should know that a certain rule is being applied as between various citizens and as between great companies and small companies. It has been well said that the power to tax is the power to destroy. Because of that, there should be absolute certainty in these matters. Those who can place before the Commissioner a sufficiently strong case to induce him to exercise his discretion in their favour will succeed in obtaining a favorable decision. That means that the more powerful, the more influential and the richer persons and corporations will be in a stronger position than others. They will be able to prepare themselves, to marshal the arguments and the evidence and to pay for persons to present these views to the Commissioner or to his officials in a way which would be beyond the resources of a smaller company or of a person of more limited means. That is not good. The law ought to be certain and available for all persons upon a reading of the enactments or the practice books in taxation. Taxation legislation is to be passed. It is called legislation, but it is not law. Law means certainty. Law means rules. The rules are not here; the certainty is not here. It is a matter of the say-so of the Commissioner or his officials as to how much tax a citizen or corporation will be liable to pay. I agree with the criticism expressed by Senator Wright most eloquently in relation to this clause, and with his earlier criticisms. I also agree with what has been said by Senator McKenna.

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