Episode 30

Many tax provisions confer power on the Commissioner to make decisions on being personally ‘satisfied’ that some factual precondition or other has been met1.  In the same-sex marriage case, the High Court re-stated some basic principles regarding ‘official satisfaction’2.  They said (at [109]) that the ‘satisfaction must be formed reasonably and on a correct understanding of the law’ and ‘must not take into account a consideration which a court can determine in retrospect “to be definitely extraneous to any objects the legislature could have had in view”’3.  But, while the Minister here was not required to act in an apolitical way4, the Commissioner and his delegates must always do so5.  Long tradition, as well as legislation, requires no less6.

Marcus Ryan – Tax Counsel Network

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In this episode:


Writers – Marcus Ryan, Gordon Brysland & Suna Rizalar.

1 See for example Avon Downs [1949] HCA 26.

2 Wilkie v Commonwealth [2017] HCA 40.

3 Graham [2017] HCA 33 (at [57]), Browning [1947] HCA 21, cited.

4 JiaLegeng [2001] HCA 17 (at [102]), Bochenski [2017] FCAFC 68 (at [72]).

5 Futuris [2008] HCA 32 (at [55]), Donoghue [2015] FCAFC 183 (at [9]).

6 s 10(5) of the Public Service Act 1999, AMA16 [2017] FCAFC 136 (at [70-71]).