¹ This research was made possible by a research grant from the Law Foundation of New South Wales. The article is a modified version of a paper presented to the Australasian Tax Teachers Workshop in February 1991.

² Rubin, E L, “Law and Legislation in the Administrative State” (1989) 89 Col L Rev 369CrossRefGoogle Scholar.

³ Outlined in Y, Grbich and R, Woellner, “New Foundations of the Australian Tax System” (1987) 10 UNSWU 125Google Scholar.

⁴ Surrey, S S, “Complexity and the Internal Revenue Code: The Problem of the Management of Tax Detail” (1969) 34 Law & Contemp Prob 673CrossRefGoogle Scholar.

⁵ This is the collective label for the billion dollar computerisation of the Australian Tax System and the vast range of associated institutional changes in the assessment process. It includes, for our purposes, the changes flowing from self assessment.

⁶ Lord, Denning, HL Deb 1982, Vol 437, Col 617Google Scholar (15 December 1982) (acknowledgement to C MacPherson for quotation).

⁷ The mythologies referred to are the time honoured pretences, under separation of powers doctrines, that judges and bureaucrats do not make law. These are generated to legitimate their decisions but also serve to obscure the need for proper mechanisms to ensure that rules are competently made and adequately checked: see Yuri, Grbich, lnstitutional Renewal in the Australian Tax System (1984) 4, quoting Louis EisensteinGoogle Scholar.

⁸ Notice the word used is “statute” rather than “legislator”. In practice it is bureaucrats who do most of the detailed drafting and, to the extent that statutoiy drafting is more voluminous and complex, the effective control of parliament is eroded.

⁹ Rubin, E L, supra n 2, 369Google Scholar.

¹⁰ Conard, A F, “New Ways to Write Laws” (1947) 56 Yale Ll 458, 481CrossRefGoogle Scholar. Though closer enquiry will reveal a rich literature on the US Uniform Commercial Code.

¹¹ Law Reform Commission of Victoria, Report No 9: Plain English and the Law: Drafting Manual Appendix 1, 17: good organisation of material provides writers “an internal check on their control of their material. They can see gaps in information, jumps in reasoning, duplication, overlap and omissions. The exercise of arranging the material ... clarifies and tests their thoughts”. This becomes important as tax becomes an increasingly central role in the pursuit of key national economic outcomes and the statute takes over from the common law as the main engine of change in a society in flux.

¹² Sandford, , Hidden Costs of Taxation (1973)Google Scholar.

¹³ J, Kurtz in Gustafson, , Federal Income Tax Simplification (1979) 36Google Scholar

¹⁴ Ibid 49.

¹⁵ Patrick, , “Simplifying the Taxation of Foreign Source Income” (1977) 30 Nat Tax J 321CrossRefGoogle Scholar (Secretary of Treasury laments the compliance downsides of convoluted international tax provisions).

¹⁶ Described in Commissioner's Annual Repon.

¹⁷ A, Calabresi, A Common Law for the Age of Statutes (1982)Google Scholar.

¹⁸ Quoted in Appendix to Senate Standing Committee on Constitutional and Legal Affairs, Report on Delegation of Parlianuntary Authority (1988) 29.

¹⁹ Though it should be asked whether procedures for watching the watchdog itself are adequate, given the extremely cumbersome response of the judiciary to widespread disquiet about the contribution of tax judgments during the 1970s to the alarming decline in substantial voluntary compliance in the Australian Tax System.

²⁰ C, Davis, Discretionary Justice (1970)Google Scholar.

²¹ LL, Fuller, The Morality of Law (1977)Google Scholar.

²² This sort of argument was rejected in Giris Pty Ltd v Fethral Commissioner of Taxation (1969] ATC 4, 015.

²³ G, Gilmore, “On The Difficulties of Codifying Commercial Law” (1948) 57 Yale LJ 1341Google Scholar.

²⁴ Law Reform Commission of Victoria, supra n 11, 4

²⁵ 1975.

²⁶ Renton Report, para 11.5

²⁷ Assistant Deputy Minister, Depanment of Finance, Ottawa, 27th Canadian Tax Foundation Tax Conference (1975) 7.

²⁸ Ibid 9

²⁹ Y, Grbich, “Anti-Avoidance Discretions: The Continuing Battle to Control Tax Avoidance” (1981) 4 UNSWU 17Google Scholar.

³⁰ At iv.

³¹ The drafter is then forced to paper over the anomaly to prevent complete loss of coherence. Thus much of the debate about comprehensiveness and “even playing fields” is nothing more than a politically palatable way of rolling back the voraciousness of pressure groups in the past. It should not be confused with genuine intellectual dilemmas about conceptual coherence in a complex world.

³² See Y, Grbich, “Revisiting the Main Deducation Provision: Clear Concepts for a Mass Decision-Making Tax System” (1990) 17 MUL Rev 347Google Scholar.

³³ Section 50A ff.

³⁴ Conard, A F, supra n 10, 481Google Scholar.

³⁵ Y, Grbich, “Duke of Westminster's Graven Idol on Extending Property Authorities into Tax and Back Again” (1978) 9 FL Rev 185Google Scholar.

³⁶ See attempts to spell out this demarcation in Y, Grbich, supra n 7, 100Google Scholar.

³⁷ WT Ramsay Ltd v IRC (1981) 11 ATR 752.

³⁸ (1989] 2 ATC 4, 101.

³⁹ Curran v FCT (1974) 5 ATR 166.

⁴⁰ Commissioner's Overview, Annual Report (1988 - 89) S.

⁴¹ Id.

⁴² “PM Keeps Pledges Modest”(Age), 14 November 1984), 17.

⁴³ Ibid 13 ff.

⁴⁴ In the 1988 - 89 financial tax year it was already $69.3 billion, an increase of 15.2% from the previous year (Annual Report (1988 - 89) 1). On this basis it will easily reach $100 billion within the planning cycle of the Modernisation project.

⁴⁵ Report of Canadian Royal Commission on Taxation (1966) Vol 5, 123.

⁴⁶ Commissioner's Overview, Annual Report (1988 – 89) 6.

⁴⁷ G, Calabresi, supra n 17Google Scholar.

⁴⁸ Rubin, E L, supra n 9, 426Google Scholar.

⁴⁹ Id.

⁵⁰ Id.

⁵¹ Ibid 372.

⁵² Ibid 409.

⁵³ See discussion in R, Goode, “The Codification of Commercial Law” (1988) 14 Monash ULRev 135, 140Google Scholar.

⁵⁴ K, Llewellyn, “Why a Commercial Law Code?” (1953) 22 Tenn LR 779Google Scholar; S, Stoljar, Problems of Codification (1977)Google Scholar.

⁵⁵ The Preparation of Legislation, Report to UK Parliament (Cmnd 6053, 1975) (Renton Report}, para 17.11.

⁵⁶ Ibid paras 17.14, 17.16.

⁵⁷ Id.

⁵⁸ Ibid para 17.16.

⁵⁹ Conard, A F, supra n 10, 470Google Scholar.

⁶⁰ Report of Canadian Royal Commission on Taxation, supra n 45.

⁶¹ R, Goode, supra 53, 156Google Scholar.

⁶² (1980) 3 WLR 209, 222.

⁶³ R, Goode, supra n 53, 156Google Scholar.

⁶⁴ (1981) 11 ATR 949.

⁶⁵ R, Goode, supra n 53, 138Google Scholar.

⁶⁶ Ibid 139.

⁶⁷ Ibid 146.

⁶⁸ Ibid 156.

⁶⁹ Ibid 145.

⁷⁰ Law Reform Commission of Victoria, supra n 11, Appendix 1.

⁷¹ (1955) Cmnd 9474 para 109ff

⁷² Canadian Royal Commission Report, supra n 45, 552.

⁷³ See CS, Diver, “The Optimal Precision of Administrative Rules” (1983) 93 Yale LJ 65Google Scholar.

⁷⁴ Senate Standing Committee on Constitutional and Legal Affairs, supra n 18.

⁷⁵ Ibid para 6.3.

⁷⁶ Culp, Davis, supra n 20Google Scholar.