Federal Court of Australia

Beckett v Tax Practitioners Board [2023] FCAFC 100

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the respondent’s costs of the appeal as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    Unsurprisingly, to be a registered tax agent in Australia there are certain eligibility criteria that apply pursuant to the Tax Agent Services Act 2009 (Cth) (Act). Amongst other things, an individual applicant must be a person whom the Tax Practitioners Board (Board) is satisfied is a fit and proper person: s 20-5(1). The statutory criteria of fitness and propriety requires the Board to have regard to certain matters at s 20-15, including whether the individual “is of good fame, integrity and character” and whether the individual has been convicted during the previous five years “of an offence involving fraud or dishonesty”: ss 20-15(a), (b)(i) and 20-45(b).

2    The appellant was first registered as a tax agent in 1987. She practised as such for many years thereafter. On 7 September 2016, she pleaded guilty to two counts of using a false document to influence the exercise of a public duty contrary to s 254(b)(iii) of the Crimes Act 1900 (NSW). It is not in issue that these were offences of dishonesty within the meaning of the Act. On 17 February 2017, the appellant first disclosed to the Board the fact of her plea of guilty to the offences. On 24 February 2017, the appellant was sentenced to imprisonment for terms of 20 and 18 months respectively, to be served concurrently, for each of her offences. Each sentence was wholly suspended upon the appellant entering into a good behaviour bond.

3    On 9 November 2017, the Board determined to terminate the appellant’s tax agent registration pursuant to s 40-5(1)(b) of the Act, effective from 27 December 2017, on the ground that the appellant was not a fit and proper person. The appellant disagreed with the decision of the Board. On 13 December 2017, she lodged an application for review with the Administrative Appeals Tribunal (Tribunal). On 9 February 2018, the Tribunal granted to the appellant a stay of the decision of the Board. In April 2018, the Tribunal heard the review application and on 14 June 2018, the Tribunal published its decision and affirmed the decision of the Board. On 11 July 2018, the appellant lodged a notice of appeal with this Court from the decision of the Tribunal. Her appeal was allowed for reasons published on 17 April 2019, the decision of the Tribunal was set aside and her application was remitted for rehearing: Beckett v Tax Practitioners Board (2019) 164 ALD 231; [2019] FCA 353, Griffiths J.

4    On 5 February 2021, a second hearing before the Tribunal commenced. On 30 April 2021, the Tribunal delivered a decision and, once again, affirmed the decision of the Board: Beckett v Tax Practitioners Board [2021] AATA 1234 (TD). From that decision the appellant appealed to this Court and the primary judge dismissed the appeal for reasons published on 12 August 2022: Beckett v Tax Practitioners Board [2022] FCA 930 (PJ).

5    The appellant now appeals to this Court. Her central ground and submission is that the Tribunal failed to adequately expose its reasons and in turn the primary judge erred in failing to so conclude. We heard the appeal on 17 May 2023. We were assisted by Mr M Robinson SC and Dr J Lucy for the appellant and by Mr L Livingston SC and Ms W Liu for the Board as respondent. For the reasons that follow, no error by the primary judge has been made out and the appeal must be dismissed.

The circumstances of the appellant’s offending

6    Her Honour the primary judge succinctly summarised the relevant facts relating to the appellant’s offending at PJ [6]-[11] and which is common ground between the parties:

The applicant became a registered tax agent in 1987. In 2003, the applicant became an approved person under the Electronic Duties Returns (EDR) Scheme operated by the NSW Office of State Revenue (OSR) pursuant to the Taxation Administration Act 1996 (NSW).

As part of the Scheme, the applicant was approved to stamp transfers of real property upon receipt of a Notice of Assessment. The applicant was required under the Scheme to have the duty payable available to her prior to stamping a transfer, except where the duty payable would be collected at settlement. The applicant was required to pay the stamp duty collected to the OSR on a weekly basis.

In 2009 and 2010, the applicant assisted a client to transfer a property and was aware, at the relevant times, that the transfer was liable to ad valorem duty. On 10 June 2010, the applicant used the EDR system to stamp the transfer of the property from a trust to the client. The duty was assessed at $29,240.00 and the penalty interest was assessed at $17,416.29; a total amount of $46,656.29 was payable. At the time of the transfer, the applicant did not have the amount owing available. Despite that, on 11 June 2010, the applicant processed the transfer of the property to the client. On 10 September 2010, the OSR informed the applicant that her approval under the EDR Scheme was suspended by reason of her failure to remit the payments due. The applicant received a statutory notice requiring her to attend an interview with the OSR on 28 September 2010.

On 28 September 2010, the applicant attended the OSR interview and was informed that it was an offence to make false or misleading statements to a taxation officer. The applicant was also advised that she did not have to say or do anything that may tend to incriminate her. The applicant took an oath to tell the truth.

During the interview, the applicant produced photocopies of two bank cheques, being copies that she had altered to give the appearance that the bank cheques had been issued on 26 September 2009, in an attempt to demonstrate, falsely, that she had the funds for payment at the time that the transfer was stamped. The bank cheques had been purchased only a day before the OSR interview and both cheques were subsequently cancelled. The applicant also informed the OSR officers that the original bank cheques had been picked up and taken by a bank representative at the settlement of the purchase, which was untrue. The applicant then paid the amount owing around the time of the OSR interview.

The applicant was first indicted in respect of her conduct on 29 May 2013. However, those charges were later changed, and on that occurring, the applicant immediately pleaded guilty, and successfully sought the inclusion of the remaining charge as a Form 1 matter to be dealt with on the sentencing of the principal charge. On 7 September 2016, the applicant pleaded guilty to two counts of using a false document to influence the exercise of a public duty under s 254(b)(ii) of the Crimes Act 1900 (NSW) and on 24 February 2017 was sentenced on two counts to a terms of imprisonment of 20 months and 18 months, to be served concurrently. The sentences were suspended upon the applicant entering into a good behaviour bond. That bond subsequently expired without breach.

7    Before us, counsel for the appellant readily accepted that she had engaged in dishonest conduct. It was a serious matter for the appellant to have altered the dates on each copy of the bank cheques and it was dishonest to proffer those copies as genuine to the officers from the State Revenue Office. Counsel, however, emphasised the considerable lapse of time between the conduct and the plea of guilty and the conduct and the date of hearing before the Tribunal during which time the Board did not identify any other instance of dishonest or unprofessional conduct. Of course, these matters are relevant only to the merit of the Tribunal decision, but they do provide context as to how it proceeded and reasoned.

The Tribunal decision

8    The Tribunal commenced by setting out the relevant provisions of the Act and no complaint is made by the appellant that it failed to understand the evaluative inquiry required by the fit and proper person test by having regard to whether the appellant is an individual of good fame, integrity and character.

9    At TD [10]-[38] the Tribunal summarised the relevant history that led to the appellant’s commission of the offences and her subsequent conduct in proffering copies of the altered bank cheques to the state investigators on 28 September 2010 when, in particular, after having been informed that it was an offence to make a statement to a taxation officer knowing it to be false or misleading, falsely stated that she had purchased the bank cheques at the time of, and in order to discharge the liability for, the duty assessment. She also falsely stated that the original bank cheques had been collected by a bank representative at settlement.

10    The Tribunal at TD [35]-[36] set out some of the comments made by the District Court judge on 24 February 2017 in sentencing the appellant. None of that is in issue. At TD [39]-[51], the Tribunal found favourably to the arguments of the appellant that she did not breach her disclosure obligations under the Act by failing to disclose to the Board her conduct before the date of her conviction. In essence, the Tribunal found that the standard form questions were limited to conviction for an offence involving fraud or dishonesty, rather than conduct which might be characterised as dishonest and for which an individual might subsequently suffer a conviction.

11    At TD [52]-[54], the Tribunal also concluded favourably to the arguments of the appellant that no regard would be had to any failure by her to disclose to the Board a disciplinary determination made by the Legal Profession Board of Tasmania on 16 February 2016, related to her dishonest conduct.

12    At TD [55]-[58], the Tribunal extracted passages from various authorities concerned with the content of a statutory requirement that a person be fit and proper. No criticism is made by the appellant that the Tribunal wrongly stated or misunderstood the legal content of the obligation.

13    At TD [59] the Tribunal concluded that the appellant’s offending was serious:

The offences for which Ms Beckett has been convicted are serious. She forged bank cheques and lied under oath in an interview with officers from the OSR. The offences are particularly serious when considered in the context of her registration as a tax agent.

14    At TD [62]-[63] the Tribunal demonstrated its correct understanding that the statutory criterion that a person must be fit and proper to be registered as a tax agent operates in order to protect the public:

The question is whether the applicant is a fit and proper person to be registered as a tax agent to be determined at the time of the hearing of the review. The applicant points out that authorities are clear that persons who have committed offences of dishonesty may redeem themselves and be fit and proper persons notwithstanding the offences. And as was pointed out, the exercise of the discretion to disqualify a person from being a tax agent is not to be used in punishment of that person. The purpose of the power to disqualify is to protect the public.

Of course, protection of the public is not limited to protection of those who may engage Ms Beckett as her tax agent, or protection of the revenue, although those are of course important considerations. Protection of the public is also closely linked with public confidence in the system. The public is entitled to know and expect that persons who occupy the position of a tax agent are of high integrity.

(Footnotes omitted.)

15    From TD [64], the Tribunal turned to matters in mitigation that the appellant relied upon commencing with a report made by a forensic psychologist, Ms Lucas on 19 February 2017. That report was made for the purpose of sentencing submissions in the District Court of New South Wales. The Tribunal accepted the content of that report, including and in particular the appellant’s expression of remorse expressed as:

In discussing her offence behaviour Ms Beckett expressed remorse for her actions. She advised she was aware of the breach of trust committed. She also provided account (sic) which indicated that she had some developing awareness of the psychological processes behind her offending behaviour.

16    At TD [67], the Tribunal summarised evidence given by a forensic psychiatrist, Dr Furst as set out in a report dated 15 August 2019 and as given orally at the hearing before the Tribunal. In his report, Dr Furst said in part:

In my opinion there was no relevant psychiatric or psychological explanation for her actions. Ms Beckett being a competent professional who apparently believed she was acting in the interests of her client/s at the time, having full awareness of her actions.

...

Ms Beckett is now aware of the relevant legislation, which says she should be an agent of the government. She now understands she had no right to ‘hedge’ or ‘manipulate’. She now understands she has no right to present ‘alternative facts’. She understand (sic) that the legislation says it has to be based on ‘objective facts’.

Ms Beckett said, ‘I understand the law now ... I had been conscious of advocating for my clients.’

When asked how she would handle things should a similar situation occur in the future, Ms Beckett said, ‘Rather than creating a narrative, I would say it is up to the party involved to provide their narrative. I am an agent of authority [i.e. an agent of the Government].

Given her expressed attitudes, knowledge and understanding in this respect, would regard it as highly unlikely for Ms Beckett to act in such manner in the future. Furthermore, she has no indications of mental disorder, personality disorder and has no other criminal offending or other dishonesty issues, suggesting that it is highly unlikely she will reoffend in the future.

17    The Tribunal was unimpressed by this evidence. At TD [68] the Tribunal concluded that this evidence “hardly explains or shows any real appreciation or insight as to what occurred”. At TD [69] the Tribunal concluded that:

…I was left with the impression, from both Dr Furst’s report and Ms Beckett’s oral evidence and her demeanour when questioned on these matters, that she did not properly appreciate the gravity of her behaviour or fully accept responsibility for it. These matters do not lead me to share Dr Furst’s view that Ms Beckett is “highly unlikely” to act in the same manner in the future. This also bears on the weight I can give to character references referred to below.

18    The Tribunal reasoned that it was reinforced in that conclusion by the unsatisfactory manner in which the appellant gave her oral evidence and her demeanour when questioned: TD [69]. This caused the Tribunal to reject the medical evidence to the effect that it was “highly unlikely” that the appellant would act in a similar manner in the future. The Tribunal rejected the appellant’s submission that the offences were neither premeditated nor committed for reward. In the view of the Tribunal, “some planning” went into obtaining and then altering the copies of the bank cheques. Subsequently, the appellant had intentionally misled the state investigators, and did so under oath: TD [70]. At TD [71], the Tribunal made a particularly damning finding:

It was accepted by the applicant that a reason for her conduct was to avoid disclosing what she had done. She was in part motivated to protect her own position although this, it was submitted, was not a prime motivation For the Board it was submitted the applicant's conduct which resulted in her convictions was layered and calculated. It was pointed out that it directly encroached on the exercise of statutory powers by a revenue authority. I agree it was designed, whatever the motivation, to undermine the efforts of the revenue authority to ascertain the truth.

(Footnotes omitted.)

19    Commencing at TD [72] and concluding at [81] the Tribunal summarised, and accepted, a number of matters put on behalf of the appellant as mitigating or explaining her conduct including her adverse marital circumstances, the gambling addiction of her former husband, the stress that she suffered in having to raise her family by herself and incidents of violence that she had suffered at the hands of her former husband. The Tribunal accepted that but for the dishonesty for which she was convicted, the appellant was otherwise of good character and reputation and in that regard he accepted the evidence given by a number of character witnesses: including that for the duration of the stay of the decision of the Board, she had continued to practise as a tax agent and had appropriately met her statutory obligations. She had not been the subject of any further complaint or disciplinary action.

20    Despite the matters of mitigation relied upon by the appellant, and the acceptance of her evidence in support, the Tribunal at TD [81]-[82] was not ultimately satisfied that she was a fit and proper person:

I have taken into account all that has been said by or on behalf of Ms Beckett including, without attempting to be exhaustive, the time which has passed since the commission of the offences; the absence of and unlikelihood of the return of the influences which were affecting her at the time of the commission of the offences; Judge Berman’s remarks on sentencing; and Ms Beckett’s compliance with the conditions imposed upon her pursuant to the stay.

I have also had regard to the authorities referred to above and, of course, to the nature, seriousness and circumstances of the offences for which Ms Beckett was convicted and sentenced. In the result I am satisfied that Ms Beckett does not meet the requirement under s 20(5)(1)(a) of the TASA that she is a fit and proper person to be registered as a tax agent.

The primary judge

21    The amended notice of appeal to the primary judge asserted 10 questions of law and grounds in support in 16 numbered paragraphs in an overlapping and unsatisfactory manner. Ultimately, only four issues were pressed as distinct groups of legal error: misunderstanding that the appellant had forged the bank cheques; inadequate reasons; denial of procedural fairness and misapplication of s 20-45(b) of the Act. In comprehensive reasons, her Honour rejected the appellant’s arguments on each issue and dismissed the corresponding grounds. We need only mention how her Honour dealt with the inadequate reasons ground, as it is the only issue that the appellant now presses in her appeal.

22    Her Honour observed at PJ [43] that the appellant’s complaints focused on the reasoning of the Tribunal at TD [69] which we have, in large part, set out above. In that paragraph the appellant submitted to her Honour that the Tribunal erred in rejecting three significant submissions that she had made: insightful demonstration that her conduct was wrong, acceptance of responsibility for it and the improbability that she would again engage in dishonest conduct. Her Honour summarised the particular contended error at PJ [44]:

…It was submitted that the applicant’s oral evidence which was relied on as not appreciating the gravity or not fully accepting responsibility is unreferenced, unexplained and her adverse demeanour is unidentified. It was submitted that the expected demeanour, in the circumstances, was not self-evident (those circumstances included the applicant’s personal circumstances), and that the fact-finder relying on demeanour has an obligation to carefully identify the demeanour relied on and to contrast it with a benchmark of universal normalcy or some norming standard which is said would be expected. The applicant submitted that the obligation to give reasons was particularly important in circumstances where using demeanour as a way of fact-finding is ill-suited to assessing the claims of women, victims of trauma and persons of diverse, non-Anglo-Celtic background, where the applicant satisfies each of those factors, and in circumstances where the hearing was conducted remotely by audio-visual link, with some parts of the transcript recording that aspects of the applicant’s evidence suffered from recording audio failure. The applicant submitted that the conclusion in [69] that the Tribunal was not persuaded that the applicant is “highly unlikely” to err again is stated without sufficient reasons and is given without examination of the applicant's submissions on all the matters that could be expected to bear on that conclusion.

23    In rejecting that submission her Honour did not limit her consideration to TD [69]; rather, she considered it in the “broader context” of the entirety of the decision, particularly the reasoning at TD [66]-[68]. Having done so, her Honour reasoned at PJ [52] that the Tribunal had adequately exposed its reasoning process and accepted at [53] that the Tribunal did not explain its reference to the appellant’s demeanour but this failure did not, in her Honour’s view, amount to legal error because: “the nature of demeanour being impressionistic means it is not always capable of further explanation”. Her Honour then proceeded to undertake a detailed analysis of the entirety of the reasoning of the Tribunal commencing at PJ [54] and concluding at [70] as follows:

These impugned paragraphs of [62], [65], [72]-[78], [80]-[81] must be viewed in the context of the whole reasons, including, relevantly, the conclusions at [68]-[71], and the relevant legal principles and issue to be determined. When that is done, I am not persuaded that the reasoning process has not been exposed. Read fairly, the Tribunal adequately explained why it was not satisfied that the applicant met the criteria for being a fit and proper person. The Tribunal reached that conclusion having considered the relevant evidence and submissions, as analysed by it. Given the relevant principles, and the manner in which they were discussed by the Tribunal (which include [55]-[58], [60]-[63], [79], [82]), in particular, the importance of honesty and integrity, it is apparent from the reasons that the Tribunal was concerned there were serious issues with the applicant’s understanding of her offending conduct: at [68]-[69]. As a consequence, the Tribunal was not satisfied that she was “highly unlikely” to act in the same manner in the future: at [69]. As the Tribunal explained, this bore on the weight to be attached to the applicant’s character references: at [69]. The Tribunal emphasised that the issue is about protection of the public interest, which includes ensuring tax agents comply with high standards of integrity: at [79]. This was considered in the context of the nature and seriousness of the offending (in light of the findings, including at [59], [70], [71]): at [79], [82]. Read fairly, the reasons reflect that in reaching its conclusion the Tribunal placed greater weight on those matters just referred to, than those which were relied on by the applicant in mitigation (which had been accepted by the Tribunal). Read fairly, it is apparent from the reasons why it did so. The reasons given by the Tribunal adequately explain the conclusion it reached, such as to satisfy s 43(2) and (2B).

24    In argument before us, the appellant hardly mentioned her Honour’s reasoning, preferring to focus upon claimed inadequate reasoning by the Tribunal. That approach detracts from the obligation that the appellant has in this Court to identify reviewable error on the part of the primary judge: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [22]-[30], per Allsop J (Drummond and Mansfield JJ concurring).

The appellant’s submissions

25    As is well understood, the Tribunal is obliged by statute to provide reasons orally or in writing: Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), s 43(2). By s 43(2B) written reasons for a decision “shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.” Each counsel accepted in argument that a failure to give reasons as required is an error of law which aligns with the prevailing view in this Court: Wonson v Comcare (2020) 276 FCR 613; [2020] FCAFC 76 (Wonson) at [42], per Katzmann, Anastassiou and Abraham JJ.

26    In a broad ranging submission, counsel for the appellant contends that the Tribunal’s reasons wholly fail to comply with the statutory obligation in that it failed to adequately explain how it reached its conclusion at TD [82]. As expressed by her counsel in oral submissions:

The tribunal here did do something which looks like findings of fact and it did something which, in part, looks like the evidence on which those findings were based. And that’s not the part that is the central focus of the appellant’s attack. What we are – our central focus is the simple absence of reasons, in fact the whole absence of reasons. But (2B) is significant in this respect. The words “shall include” are a command. It means “must include”. It is not discretionary. It is mandatory, to use the old language. It is simply a statutory command as to what must be included here. And I will show your Honours that there were necessary statutory findings here which were simply not made by the tribunal, where not addressed by the tribunal as part of its not addressing anything else.

27    However counsel did not explicitly identify the “necessary statutory findings” that the appellant contends were not made by the Tribunal in discharge of its obligation to provide reasons. Rather, counsel contended that the reasons of the Tribunal fail “completely” to expose the reasoning process which led it to the conclusion at TD [81]-[82] and in doing so placed considerable emphasis on the content of the statutory duty by analogy with Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot), particularly at [54]-[55], per French CJ, Crennan, Bell, Gageler and Keane JJ. Counsel submits that the Tribunal’s reasons fail to “explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”: Wingfoot at [55].

28    Despite that the appellant engaged in serious dishonest conduct, counsel submits that the Tribunal failed to evaluate the fact that but for her offending she is a person of good character, failed to balance that consideration with a critical analysis of the seriousness of her misconduct and the unlikelihood of repetition, failed to analyse why authorities that it mentioned on the question of rehabilitation did not apply to the appellant’s circumstances, and failed to explain why preventing the appellant from practising as a tax agent was necessary to protect the public particularly where she had continued to do so throughout the period of the stay. Counsel also emphasised that the Tribunal repeatedly employed the phrase “I have taken into account” certain matters without explaining how those matters had been evaluated and weighed in the exercise of the discretion, failed to explain the basis for the adverse demeanour finding and failed to explain how the various factors listed by it were weighed in the assessment process.

29    Ultimately, counsel focused upon TD [82] about which it was submitted that there is “an entire chasm of reasoning” that is missing between the first and second sentences. The submission continued:

That is where the reasoning needs to go. It needs to say between those two sentences, “I don’t think that the applicant can ever get over the offence of dishonesty and that Judge Berman’s remarks were wrong. And I don’t believe any of the character witnesses because of my finding on demeanour.” These things need to be spelled out, your Honours. It’s completely and entirely bereft of reasons. I don’t say that the reasons here are bad. My submission is the reasons here are non-existent. And I accept that there are some findings where there’s a little internal reasoning of some kind to make a finding of fact.

But that’s not the complaint that the applicant has here. The appellant’s complaint is that the reasons for the decision are not there.

The respondent’s submissions

30    In contrast counsel for the respondent, Mr Livingston SC in oral submissions before us emphasised the need to read the Tribunal’s reasons in their entirety in order to understand the connection between the various findings of fact, the balancing exercise that was undertaken and the ultimate conclusion that the Tribunal arrived at. On his submissions, the Tribunal correctly identified the sole question for determination, set out correctly the relevant provisions of the Act, understood that the appellant’s conduct was serious and dishonest in each aspect being the alteration of the dates on each of the bank cheques and the subsequent lies that the appellant told to the state investigators whilst under oath. The appellant’s conduct was deliberate and designed to mislead a revenue authority in order to cause it to proceed on a false basis.

31    It was submitted that the Tribunal was careful to emphasise the elements of public trust and confidence that are inherent in registration as a tax agent pursuant to the Act at TD [62]-[63]. Properly understood, these paragraphs directly relate to the earlier findings that the appellant had engaged in seriously dishonest conduct. Conduct of that character is likely to undermine public trust in the honesty and integrity of tax agents.

32    Counsel for the respondent submitted that the Tribunal did not share the view of Dr Furst as to the likelihood of reoffending and exposed its reasons for that conclusion at TD [69]-[70]. Considered objectively, the Tribunal’s reasoning pathway disclosed that whilst some weight was given to the appellant’s otherwise unblemished record and good behaviour during the period of the stay, those factors were outweighed by the countervailing considerations of honesty, integrity and public trust. This combined with the appellant’s failure to appreciate the seriousness of her wrongdoing and accept responsibility for it were dispositive factors which the Tribunal made clear at TD [71], [79] and [82]. Reading the reasons fairly, it is clear that the appellant’s lack of insight as to the seriousness of her dishonest conduct was fundamentally inconsistent with the obligations reposed in a tax agent.

33    In summary, counsel submitted the primary judge clearly comprehended these matters and was entirely correct in her overall conclusion at PJ [70].

Consideration

34    Recently this Court in Wonson addressed the content of the statutory duty of the Tribunal to give reasons pursuant to s 43(2B) of the AAT Act. At [89] the Court expressed as “well-established” that the statutory obligation “only extends to the findings the Tribunal has actually made and not to findings the Court considers it ought to have made.” The duty is to record the findings of fact that the Tribunal considers material to the resolution of the issues before it and in doing so the reasoning process must be exposed as explained at [90]:

The Tribunal’s duty to give reasons, however, is not satisfied merely by setting out its findings on material questions of fact and identifying the bases for those findings. The duty to give reasons carries with it the duty to expose the reasoning process. And the reasons must be sufficient to enable a party aggrieved by the decision to understand why the party lost and to decide whether the decision involved “an unwarranted finding of fact, or an error of law, which is worth challenging”: Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 (Wraith) at 507 (Woodward J). Woodward J said in Wraith that the decision-maker must set out his or her understanding of the relevant law, the findings of fact on which his or her conclusions depend, especially if the facts were disputed, and the reasoning processes which led to those conclusions. His Honour also said that that should be done “in clear and unambiguous language, not in vague generalities or the formal language of legislation”…

35    The Court at [91] set out with approval what French J had said in Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 at [40] where in part his Honour stated:

…Whether the reasoning is syllogistic or otherwise, the Tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case.

36    These statements of principle are broadly consistent with Wingfoot at [55], although that case was concerned with different legislation involving a medical panel charged with the duty of forming its own opinion on the medical question before it, as is referred to in Wonson at [92]. As recognised in Wingfoot, there is no common law obligation on an administrative decision-maker to give reasons, and the content of any statutory obligation to give reasons is supplied by the express and implied requirements of the relevant statutory obligation: see Wingfoot at [43]-[44].

37    We also mention Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60 (Perry, Meagher and Kennett JJ), where the Court dealt with a ground of appeal concerned with inadequate reasons by the Tribunal at [97]-[104], and we emphasise as particularly relevant to this appeal the reasons at [103]:

The applicant’s approach of singling out particular paragraphs in the reasoning for criticism tended to isolate those paragraphs from their context. Read as a whole, we think that the reasons meet the specific requirements in s 43(2B): they set out the Tribunal’s findings on material questions of fact (that is, the findings the Tribunal made on the facts that it saw as material) and refer to the evidence on which those findings were based. Beyond that, the overarching requirement to give “reasons” in s 43(2) no doubt calls for some explanation of why the findings that have been made lead to the ultimate decision. While that can properly be described as a “logical process” (eg, Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; 91 ALD 103 at [40] (French J)), it does not mean that syllogistic reasoning or the express weighing of factors for and against a result is always to be expected. Much depends on the nature of the criterion to be applied. The somewhat amorphous nature of the statutory criterion in the present case meant that the Tribunal could not do much more than set out the facts it regarded as relevant (with their evidentiary basis) and the judgment to which those facts drove it.

38    In that case the statutory criterion concerned the suitability of a person to be a provider of aged care pursuant to the Aged Care Act 1997 (Cth). Similarly in this case, the task required the Tribunal to ultimately form an opinion by considering a range of factors, some of which pull in different directions, where the conclusion ultimately rests on a broad evaluative judgment. In cases of this type caution should be exercised before accepting a submission that the reasoning process has not been adequately exposed where the weighing of the various factors is entirely a matter for the decision-maker.

39    In our view the Tribunal did not fail to adequately expose its reasoning process and the primary judge did not err in so concluding at PJ [70]. Why that is so may be shortly explained.

40    The Tribunal made findings of fact concerning, and well understood and appreciated the seriousness of, the appellant’s offending for which she was convicted together with the seriousness of her lies given under oath to the state investigators at TD [21]-[23], [30]-[31] each of which led it to the finding at TD [59] that her conduct was “particularly serious” when committed in her capacity as a registered tax agent. These findings are then directly linked to the need to protect the public, ensure that public confidence is maintained in the taxation system and the public expectation that registered tax agents are persons of honesty and integrity: TD [62]-[63]. Those findings are well reasoned, indeed compelling. What is clear from a fair reading of the entirety of the reasons is that these matters were of considerable weight in the reasoning process.

41    The Tribunal then gave detailed consideration to the mitigating evidence and factors relied on by the appellant commencing at TD [64] and concluding at [78]. In doing so it exposed its reasoning for not accepting the medical evidence of Dr Furst, to the effect that the appellant now accepts as a registered tax agent that she is an “agent of the government” and that what she did was wrong. The Tribunal reasoned at TD [68]-[69] that her contrition as expressed to Dr Furst “hardly explains or shows any real appreciation or insight as to what occurred” (TD [68]) and that overall her oral evidence was insufficient for the Tribunal to accept that she in fact fully appreciated the gravity of her behaviour and accepted responsibility for it: TD [69]. We agree with the primary judge that assessments of demeanour are often impressionistic and for that reason difficult to convey in reasons. It should not be overlooked that in the final sentence at TD [68], the Tribunal footnoted the page references to the transcript of the hearing on 5 February 2021 that anchor the adverse demeanour assessment.

42    The Tribunal did not accept the appellant’s submission that her offending was neither premeditated nor committed for reward (TD [70]), reasoning that some degree of planning went into obtaining the bank cheques, their copying and the alteration of the dates on the copies. Her conduct in lying to the state investigators was also intentional and in the knowledge that it was criminal. The appellant accepted before the Tribunal that a reason for her conduct was to conceal what she had done, partly motivated by a desire to protect her own position. On this aspect of her case, the Tribunal found at TD [71], that no matter what the motivation, the outcome was to “undermine the efforts of the revenue authority to ascertain the truth”. There is no inadequacy in that reasoning.

43    The Tribunal accepted the appellant’s evidence in relation to extenuating or mitigating factors relating to the conduct of her husband, the breakup of her marital relationship, the family violence that she suffered and that in consequence the circumstances which led to her offending “were unique and unprecedented and has imposed immense stress upon her”: TD [73], which the Tribunal expressly stated had been taken into account.

44    It is clear from TD [74] that the Tribunal accepted the findings of the sentencing judge that it was unlikely that the appellant would offend again due in part to her good character and the absence of prior convictions. There is no doubt that the Tribunal accepted the character evidence from a number of witnesses, which evidence it summarised at TD [75]-[78]. However, balanced against those considerations the Tribunal returned to the question of protection of the public at  [79]:

That said, it is necessary that the public is protected against those who, although they have the appropriate professional skills, do not have the character and integrity appropriate to the privileges that registration gives them. The public interest includes ensuring that tax agents comply with high standards of integrity. Public confidence cannot be established or maintained without professional regulation and enforcement.

45    Contrary to the submissions of the appellant, we do not accept that the Tribunal failed to explain how it balanced its findings concerning the character, credit and reputation of the appellant against the need to protect the public. The commencing words of this paragraph make it clear that the Tribunal balanced all of the evidence concerning the appellant’s good character and conduct and the unlikelihood of future offending with the need to protect the public and in doing so gave more significant, indeed dispositive, weight to that factor. In this context, we reject the submission that the paragraphs at TD [81]-[82] are “entirely bereft of reasons” or that there is “an entire chasm of reasoning” in these concluding paragraphs. What is clear from the analysis that we have set out is that the conclusions are fully informed by, and reasoned in accordance with, the preceding analysis of the Tribunal.

Conclusion

46    For these reasons, we reject the appellant’s arguments and it follows that the appeal must be dismissed. There is no reason why costs should not follow the event. We order as follows:

1.    The appeal is dismissed.

2.    The appellant is to pay the respondent’s costs of the appeal as agreed or taxed.

Associate:

Dated:    28 June 2023