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“…there is a vital public interest in the maintenance of confidence in administrative government”

We have reported elsewhere the comments on the ATO contained in the Full Federal Court judgment of 26 October 2017 (Shord v Commission of Taxation [2016] FCA 761. File number WAD 332 of 2016).

What we also find in this judgment is the observations by Justice Logan of principles of government behaviour that must be maintained if a just and stable society is to function. Essential to this is that tax authorities operate with fairness, justice and integrity.

Below are excerpts from Justice Logan’s comments. (Added emphasis is ours.)

Justice Logan
167 It is now more than a century ago that, in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, a case to which a subordinate of the Commonwealth’s chief revenue officer of an earlier era, the Comptroller General of Customs, was a party, Griffith CJ felt obliged to state, at 342:
I am sometimes inclined to think that in some parts - not all - of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.
The “standard of fair play to be observed by the Crown in dealing with subjects” to which Griffith CJ referred was not, in 1912, a new subject. Part of the constitutional history of the United Kingdom and, thus, derivatively, our own, was oppressive, unlawful behaviour by the Crown in the 17th century in the imposition, collection and recovery of taxes and a resultant and vicious civil war leading to regicide [the killing of a King] and not a republican ideal but military dictatorship.

The later restoration of the monarchy was on terms that evolved into the constitutional separation of powers, legislative, judicial and executive and what we have come to know as the Westminster system of responsible government, each feature of which is to be found in the Australian Constitution. The standard of fair play expected of the Crown and its officers in litigation is a standard in keeping both with the avoidance of behaviours that, in an extreme form, led to the civil war and with the later constitutional settlement. Once this heritage is understood, the requirement for its observance is, or should be, as Griffith CJ stated, “elementary”.

168 The standard expected of the Crown is not one diminished by the passage of time since the Restoration, much less since 1912, as this Court and others have, in the circumstances of particular later cases, felt obliged to highlight. Then, as now, there is a vital public interest in the maintenance of confidence in administrative government.

169 The “standard of fair play to be observed by the Crown in dealing with subjects” in litigious business, termed the duty to act as a model litigant, antedates and, if anything, is more onerous than the duty which all parties and their lawyers have in proceedings before this Court to assist in the achieving of the “overarching purpose” of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

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