Opinion Number. 263

Subject

AUDITOR-GENERAL POWER TO INVESTIGATE MINISTERIAL DISCRETION AFFECTING COLLECTION OF REVENUE : SCOPE OF POWERS AND RESPONSIBILITIES

Key Legislation

AUDIT ACT 1901, s. 45 : CUSTOMS ACT 1901, ss. 139, 140

Date
Client
The Minister for Trade and Customs

The accompanying file has been referred to me by the Minister for Trade and Customs for advice as to how far the audit inspection should go in regard to the internal administration of the Customs Department.

It not being easy to gather from the file the precise questions in dispute between the Auditor-General and the Customs, I have asked the Auditor-General and the Comptroller-General to state what they consider should be included and excluded respectively, and their replies are herewith.

The guiding principles appear to me to be clear. On the one hand, the Minister for Trade and Customs alone is empowered and entitled to perform the duties, discretionary and otherwise, which Parliament has entrusted to him. He alone controls the administration of his Department, and that Department is responsible for the proper collection of the customs and revenue, and for establishing and maintaining efficient checks over the collection.

On the other hand, the Auditor-General has the duty, not only of inspecting and reviewing all the books, vouchers and documents relating to the collection of duties, but also (Audit Act 1901, section 45, sub-section 2 (b)) of ascertaining 'whether the whole of the revenue and all other collections whatever have been duly collected and accounted for'. I think that all the items mentioned in the copy of instructions forwarded by the Auditor-General are properly included under the head of audit, except item (6)-'Accounts on warrants are seen to be correct in accordance with the tariff. Item (6), however, is only properly to be included if taken subject to the qualification that the function of the Auditor-General is to audit, not to administer, and that he is not to call in question the exercise by the Minister of any discretion vested in him by the law-e.g. under sections 139 and 140 of the Customs Act.

As an illustration, I think that the decision of the question whether the scientific apparatus imported for research purposes by a university professor was, under the circumstances mentioned in the papers, imported by and for the use of the university was for the Minister, not for the Auditor-General.

If the Auditor-General conceives that there has been a clear violation of law leading to a loss of revenue it is open to him, of course, and is his duty to call attention to the fact; but I do not think he is a court of review for the Minister's decision on either facts or discretion.

And generally, as to the duty of seeing that revenue has been duly collected, I think that the Auditor-General's function is not to supervise the process of collection, but to check the results of collection; to see, not that the revenue is being collected, but that it has been collected.(1)

[Vol. 5, p. 387]

(1) This opinion was published in Commonwealth of Australia, Parl, Papers 1907-1908, Vol. II, p. 1051