FEDERAL COURT OF AUSTRALIA

Garnaut v Argall [2004] FCA 360

PRACTICE AND PROCEDURE – confidentiality – scope of obligation under s 150 Child Support (Assessment) Act 1989 (Cth)

Child Support (Assessment) Act 1989 (Cth) subss 150(1), 150(2), 150(5),

150(2A) by Act No 137/2001, Schedule 1

Income Tax Assessment Act 1936 (Cth) s 16(2)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Canadian Pacific Tobacco Company Limited v Stapleton (1952) 86 CLR 1

Federal Commissioner of Taxation v Nestle Australia Limited (1986) ATC 4760

PATRICIA ANNE GARNAUT v CATHERINE ARGALL, CHILD SUPPORT REGISTRAR

No Q 107 of 2003

SPENDER J

BRISBANE

23 MARCH 2004

THE COURT ORDERS THAT:

1.       The contents of the two affidavits of Christopher John Scott, and the exhibits therein referred to, remain confidential to the parties and their legal advisers to these proceedings, and that they not be made available to any other person without the leave of the Court first obtained.

2.       The costs of today are reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In relation to the first series of orders which were sought by the notice of motion filed 5 March 2004, the Registrar, through her legal representative, has indicated that those orders are no longer pressed.  That seems to me to be an appropriate position to adopt.  The notice of motion sought the following orders:

‘1.     That upon the filing in the registry of the affidavit of Christopher John Scott dated 23 February 2004 to which are exhibited documents considered to contain protected information as defined in s.150 of the Child Support (Assessment) Act 1989, the following directions shall apply:-

         1.1     The affidavit shall be kept in a sealed envelope and only opened by the judge assigned to the hearing of this matter; or by the judges assigned to the hearing of any appeal arising out of this matter; or

1.2         Upon the directions of a judge.

2.            The Applicant be restrained from having access to the said affidavit and exhibits.

3.            Alternatively:

3.1         In addition to the orders set out in paragraphs 1.1 and 1.2, the affidavit and exhibits are to be made available only to the parties to the proceedings, including Mr Boyd if he is joined, and their respective legal advisers; and

3.2         The affidavit and its exhibits may only be referred to and used for the purposes of these proceedings.

4.            The costs of this motion be costs in the cause.

5.            Such further or other order as this Honourable Court deems fit.’

2                     Section 150 of the Child Support (Assessment) Act 1989 (Cth) (“ the Assessment Act”) has a headnote, ‘Secrecy’.  It is plain that the purpose of the section was to maintain confidentiality in respect of information received confidentially by persons in the Child Support Agency relating to the private affairs of clients of the Agency, and others. 

3                     Section 150(1) defined a protected document as that which contains protected information, which in turn is defined as information that concerns a person and which is obtained in the course of a person’s duties under, or in relation to, the Assessment Act. 

4                     Section 150(2) proscribes the communication of protected information.  It provides as follows:

‘Subject to subsection (3), a person to whom this section applies must not:

(a)         make a record of any protected information; or

(b)         whether directly or indirectly, communicate to a person any protected information concerning another person.

A penalty of imprisonment is available for the offence which that subsection creates.

5                     Section 150(5) provides:

‘A person to whom this section applies is not required:

(a)         to communicate protected information to a court; or

(b)         to produce a protected document in court;

except where it is necessary to do so for the purposes of this Act.’

6                     By s 150(2A), which was inserted by Act No 137/2001, Schedule 1:

‘Subsection (2) does not apply if the record is made, or the information is communicated:

(a)         under or for the purposes of this Act; or

(b)         in the performance of duties, as a person to whom this section applies, under or in relation to this Act.’

7                     The statutory scheme of confidentiality does not prevent the communication of information for the purposes of the Assessment Act, or in relation to the Assessment Act.  While the provisions are not identical, much assistance can be obtained from a consideration of the cases that concern s 16 of the Income Tax Assessment Act 1936 (Cth) (“the Income Tax Act”) in its various formulations. 

8                     Of particular importance to me are the observations of Dixon CJ in Canadian Pacific Tobacco Company Limited v Stapleton (1952) 86 CLR 1 (“Canadian Pacific Tobacco”).  His Honour was there concerned with s 16(2) of the Income Tax Act, which contained an exception to the obligations to preserve secrecy where an officer records, divulges, or communicates relevant information in the performance of any duty as an officer.

9                     The correlation in that subsection, with that in s 150(2A) of the Assessment Act is apparent.  The exception is to be interpreted widely.  In Canadian Pacific Tobacco, Dixon CJ said at p 6 that:

‘The word “duty”… is not … used in a sense that is confined to a legal obligation, but really would be better represented by the word “function”.’

His Honour further said at p 6 that the exception:

‘... governs all that is incidental to the carrying out of what is commonly called the “duties of an officer’s employment”; that is to say, the functions and proper actions which his employment authorizes.’

10                  The Full Court of the High Court, dismissing an appeal against Dixon CJ’s decision, held that the exception extended to the making of an affidavit by a taxation officer in the proceeding for the ultimate obtaining of revenue.

11                  The observations of Dixon CJ in Canadian Pacific Tobacco, to which I have referred, was quoted by the Full Court of the Federal Court in a joint judgment of Bowen CJ, Lockhart and Sheppard JJ in Federal Commissioner of Taxation v Nestle Australia Limited (1986) ATC 4760 (“Nestle Australia Limited”).  At 4764, the Full Court said:

‘The “duty” of an officer extends beyond the performance of work of an administrative nature such as processing returns, making assessments, considering and dealing with objections, conducting investigations into the affairs of taxpayers and matters of this nature.  It includes the occasions on which he is required by the judicial process to produce documents or give evidence in courts, by affidavit or viva voce, concerning the affairs of some other person which he has acquired as an “officer”, where the proceedings are referable to the imposition, assessment or collection of revenue.  These include appeals to courts under Pt V of the Assessment Act, proceedings for the obtaining of revenue, applications challenging decisions of the Commissioner pursuant to sec.39B of the Judiciary Act 1903 and applications for review of decisions of the Commissioner under the [Administrative Decisions] (Judicial Review)Act.’

12                  It seems to me that, in those circumstances, the secrecy provisions do not inhibit the proper production of information relevant to, or in relation to, the Assessment Act.  As that last quote from Nestle Australia Limited shows, it is contemplated specifically by their Honours that applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for judicial review are proceedings of a kind that would be within the ordinary understanding of duty or function of an officer referred to in s 150(2A) and s 150(5) of the Assessment Act. 

13                  For those reasons, in my view, the position ultimately adopted by the respondent is the appropriate one. 

14                  In relation to the second set of orders sought in the notice of motion, notwithstanding their formulation, it seems to me plain that what is sought is a confidentiality order preventing the confidential information referred to in Mr Scott’s various affidavits entering into the public domain and being the subject of public inquiry or comment.  The applicants on the motion seek an order that the affidavits and exhibits be used and referred to only for the purposes of these proceedings, and that in the absence of any special order of the Court, the Court should order that the contents of the affidavits and those exhibits be available only to the parties to this litigation and their legal advisers. 

15                  If anybody seeks or wants to have access to the documents, then in the light of that proposed order, it would be necessary for there to be an application made and grounds advanced as to why access to what is confidential information should be granted.

16                  I direct that the contents of the two affidavits of Christopher John Scott, and the exhibits therein referred to, remain confidential to the parties and their legal advisers to these proceedings, and that they not be made available to any other person without the leave of the Court first obtained.

17                  The costs of today are reserved.

Associate:

Dated:              30 March 2004