Hope and justice: values that infuse the work of the Monash Tax Clinic
Written by Richard Stewart, Lecturer.
That ‘death and taxes are among the only certainties in life’ is a saying that finds easy enough agreement. Both are generally accepted as inescapable facts of a life that is lived within a society, tax commonly understood simply as the ‘price’ we pay in order to so live. Whatever the form it takes and however it might be exacted, just a moment’s thought reveals taxation to be an integral aspect of a viable human society.
All that we have come to expect from society, a modern one such as ours especially, depends on the imposition and collection of taxes. Yet not even that truth alone provides sufficient “…justification for arbitrary acts, bullying or the erosion of civil rights in the name of exaction of taxes” renowned tax jurist, the late Justice Graham Hill, once declared. The Monash Tax Clinic (MTC) can be anchored in that declaration.
The core business of MTC is to provide high quality legal information, advice, and representation to taxpayers who are unable to advocate for themselves or access the services by which they might otherwise do so. Like every other community legal centre, MTC makes its primary contribution to law and justice, and thus to the proper functioning of our society, by meeting this unmet legal need in the community. No part of the work of MTC involves frustrating the exaction of properly imposed taxes, but it certainly does extend to acting as a bulwark against an agency of the state with almost limitless power: the Australian Taxation Office (ATO). The work of the MTC shows how that power can sometimes be wielded with devastating effect, however unintended that outcome might be.
“I don’t know what to do. This is keeping me awake at night because I have no money to pay, and I have three kids. Please help me”, one recent client, named Sam, implored. The student dealing with this case had prepared for such a plea and, acknowledging it with surprising calmness, proceeded to explain what the tax was, why it was, and how we might help Sam to manage it. “We’re going to call the ATO together…” said the student “…and see if we can get the recovery action stopped while we consider the options you might have and then give you some advice.” Sam looked thoroughly deflated. “What options? I’m telling you, I have no money and I cannot pay this tax. At least not until I find a job.” Showing early signs of the practitioner she might become, the student steadied him: “…let’s just take one step at a time.” She reminded Sam that he needed only answer the questions asked of him by the ATO officer and simply tell the truth as best he could.
A lengthy call to the ATO then followed during which all of us, client, supervising lawyer, student and the ATO officer all wrestled with the facts and circumstances in such a way as to find an agreed way forward. Together we found it. The debt was recalled from the recovery agent and placed on a 3-month hold. For now, then, there would be no more calls, or letters, or threats. Perhaps Sam could sleep again.
But any feeling of relief Sam had was soon disrupted by the intrusive thought of ‘what then?’, and we managed it by focusing his attention on what had just been achieved. The next step, we suggested, would be to determine the correctness of the tax assessments, then the options afforded by law for dealing with the tax. Probably he would have to pay some tax, maybe even most of it. “As much as we can, we’re going to keep helping you to get this fixed”, we said encouragingly to Sam, a still young 30-something with plenty of plans for the future.
As for many who seek help from the MTC, Sam’s tax debts pressed so heavily upon him that he found it difficult to see the positive that could be part of his future. That impaired state of being can be allpervading, infecting other aspects of a life that otherwise could, and should, be well lived. The result can be a person who continues to withdraw from society and its institutions, just one of which is the ATO. Such a result is neither consistent with the proper administration of the taxation system nor, more generally, with the viable society that affords every single one of its members the opportunity for the life to which we aspire as Australians. This understanding of the taxation system infuses the work of the MTC and, hopefully, takes form as a part of the professional ethos with which its students move out into the world as legal practitioners.
“You know,” Sam said as he left the meeting. “You’re the only ones that have done something. The others said they would, but they didn’t. They just gave me numbers and sent me to other places. If I win the lottery I’m going to give you money, lots of money, so you can help everyone.” All indications are that Sam will indeed win the lottery and eventually come to know it, even if not exactly the one he had in mind.