Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 
Outcome: cited
Further in his reasons for judgment in Powell at 263, Hill J referred to the dictum of Windeyer J in Giris Pty Ltd v Commissioner of Taxation [1969] HCA 5 ; (1969) 119 CLR 365 at 384 concerning the need '... to be guided and controlled by the policy and purpose of the enactment, so far as that is manifest in it [and to] exclude from... consideration any matter which it would be unlawful... to take as a criterion... [subject to the qualification where] the statute seems to allow great latitude to the Commissioner in forming his opinion' . Moreover his Honour referred to what was said by Dixon J (as he then was) in R v Trebilco; Ex parte FS Falkiner &amp; Sons Ltd [1936] HCA 63 ; (1936) 56 CLR 20 at 32 as to certain statutory 'considerations by which an exercise of discretion is to be guided... [t] he nature of those considerations [to] be gathered from the scope and object of the provision' . Additionally his Honour referred further to dictum of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40, where his Honour described the statutory discretion there addressed, albeit not related to fiscal exaction, as '... similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard', and where his Honour thereafter proceeded to emphasise that '[b]y analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.' Those factors have aspects of materiality in relation to the issue or issues here falling for consideration. 46 The Tribunal's finding as to likely 'serious hardship' was broadly contended by the Commissioner to be based on an hypothesis that caused the Tribunal to ignore matters that were relevant to the task required of it by s 340-5 of the Administration Act, those matters being the operation of the Bankruptcy Act , and also of the LP Act. The context, scope and object of s 340-5 of the Administration Act was said by the Commissioner to have required the Tribunal to consider the matters that would, or could, affect the financial circumstances of Mr Milne in the light of his then current tax liability. Accordingly, so the Commissioner's submissions continued, for the Tribunal to fail to take into consideration matters, such as the operation relevantly of those statutory provisions, constituted a further error of law, either by way of statutory misconstruction, or failure to take into account relevant considerations due to statutory misconstruction or otherwise. In that latter regard, I was referred to Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24, in particular in relation to what appears in the reasons for judgment of Mason J (as he then was) at 39, under the heading Failure To Take Into Account a Relevant Consideration . Of course in circumstances where the Tribunal, at least inherently or implicitly in the particular context the subject necessarily of consideration by the decision-maker, took into account relevant considerations and correspondingly took no account of irrelevant considerations, so much would normally suffice to satisfy the requirements of administrative obligations. 47 The power under s 340-5(3) was contended by the Commissioner in any event to require two matters in particular to be considered and determined: first, whether there would be serious hardship to Mr Milne in the circumstances postulated , and secondly, whether in all the circumstances otherwise prevailing, the Commissioner ought to have exercised the statutory discretion to release Mr Milne's subject taxation liability. In considering the first of those issues, it was contended by the Commissioner that the Tribunal addressed what it considered to be the so-called test of foreseeability and control, presumably thereby referring to the circumstances in which Mr Milne came to have incurred the subject tax liabilities in the first place. The second consideration was described in terms as to whether the release of Mr Milne, if granted, would be fair to 'others', whatever the implications of that broad description. The Tribunal was said by the Commissioner to have considered that in circumstances where a person had earnt a high level of income in the past, and was continuing to earn a high income, special factors were necessary in order to establish 'serious hardship'. The description 'high income' is in any event somewhat unspecific to be necessarily helpful. The Tribunal found that Mr Milne's 'battle to continue his professional work' , despite ill-health, and his need to support his dependent son until he finished school, were 'special factors' . 48 The approaches of the Tribunal's reasoning leading to its decision-making were attacked by the Commissioner as wrong, in that it was said to have 'misunderstood the meaning of serious hardship as a so-called backward looking matter, rather than a matter that turned on an objective analysis of the future'. On a proper understanding of that statutory term, questions as to special factors were said not to arise. In particular, the Commissioner asserted that a taxpayer's 'struggle to continue working' was simply irrelevant, but for what it may ultimately matter, I do not think that somewhat simplistic description sufficiently reflects the complexity of circumstances that the Tribunal explicitly and implicitly took into account in relation to Mr Milne. 49 Addressing a further basis advanced by the Commissioner for the present administrative review sought, it was contended that on a proper understanding of the two-tiered test in subs 340-5(3) of the Administration Act, no reasonable Tribunal could have exercised the statutory discretion to release Mr Milne from his taxation liability. Reference was made by the Commissioner in that regard to the grant of administrative relief made available in Parramatta City Council v Pestell [1972] HCA 59 ; (1972) 128 CLR 305, which related to a local Council's imposition of a rate because of the special benefit flowing from the Council's execution of a particular work or service on public property, and which the High Court affirmed to be invalid. It was argued by the Commissioner conversely that the factual circumstances of a high income earner having substantial assets, sufficient in value to meet all current liabilities, could not reasonably fall within the statutory notion of serious hardship . It is normally a formidable task to establish that the decision of an administrative decision-maker satisfies that test of invalidity. The Commissioner advanced the further case that the exercise of the Tribunal's power to release Mr Milne was unreasonable, in that on the evidence placed before it, no reasonable person could have come to the conclusions reached by the Tribunal in its decision the subject of appeal. I was referred again to Peko-Wallsend where at 41, Mason J discussed the scope of the principle of Wednesbury unreasonableness. I would make a similar observation upon that submission to that which I have made in relation to satisfaction of the test in Pestell .