FEDERAL COURT OF AUSTRALIA

Beckett v Tax Practitioners Board [2019] FCA 353

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision dated 14 June 2018 by the Administrative Appeals Tribunal be set aside.

3.    The application for review of the respondent’s decision dated 9 November 2017 be remitted to the Administrative Appeals Tribunal for reconsideration according to law by a differently constituted Administrative Appeals Tribunal.

4.    The respondent pay the applicant’s costs of and incidental to the appeal.

5.    Subject to Order 6 below, the respondent’s decision dated 9 November 2017 is stayed pending the hearing and determination of the applicant’s application for review as referred to in Order 3 above or further order.

6.    Order 5 is subject to the following condition:

(a)    The applicant is not to accept any new clients while the stay is in effect.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision dated 14 June 2018 by the Administrative Appeals Tribunal (AAT). The AAT affirmed the Tax Practitioners Board’s decision dated 9 November 2017 to terminate the applicant’s registration as a tax agent under the Tax Agent Services Act 2009 (Cth) (TAS Act). The Board concluded that the applicant was not a fit and proper person for the purposes of s 20-5(1)(a) of the TAS Act to be registered as a tax agent. That decision was based upon two matters:

(a)    the applicant’s convictions under s 254(b)(iii) of the Crimes Act 1900 (NSW) (Crimes Act) on 24 February 2017 for proffering false documents (being copies of two bank cheques bearing false dates as inserted by the applicant) during a statutory examination; and

(b)    the non-disclosure in the applicant’s 31 March 2017 application for renewal of her registration as a tax agent of a reprimand she had received for unsatisfactory professional conduct by the Legal Profession Board of Tasmania on 16 February 2016.

2    The AAT stated at [76] of its reasons for decision that the second matter (relating to the failure to disclose the reprimand) did not reflect adversely on the applicant in any current assessment of her fitness.

3    It is appropriate to say something more regarding the conduct which gave rise to the applicant’s convictions. At the relevant dates the applicant was an approved participant in a scheme operated by the NSW Office of State Revenue (OSR) which enabled approved participants to stamp a transfer of real property online. This scheme was known as the Electronic Duties Return Scheme (EDR). It was a requirement of the EDR that an approved person must have the duty payable available to them prior to processing transactions online except where the duty payable would be collected at settlement.

4    Using the EDR, on either 10 or 11 June 2010 the applicant stamped a real property transaction for a client. It required stamp duty to be paid in the amount of $46,656.29 (including penalty interest), against a background of the OSR having rejected the applicant’s earlier request that the transfer be assessed for nominal duty only. The stamp duty was due for payment by 17 June 2010. The applicant did not pay that amount, nor did her client have the funds to do so. On 28 August 2010, the applicant’s status as an EDR approved person was suspended for non-payment of the assessed duty. On 17 September 2010, the applicant was informed that the OSR would conduct an audit of stamp duty transactions carried out by her. Several days later she received statutory notices which required her to attend for examination under oath and to produce the original purchaser’s file for the relevant transfer.

5    Shortly before the examination on 28 September 2010, the applicant set about creating documents which she hoped would satisfy the OSR that she had complied with the EDR Guidelines, even though she knew that she had not. In brief, she used her own funds in late September 2010 to acquire two bank cheques in the total amount of $43,240. She prepared a series of photocopies which falsely showed that the original bank cheques had been drawn on 26 September 2009 and not in September 2010 as was the true fact. She disguised the date on each of the original cheques. In the course of her statutory examination, the applicant produced the photocopied bank cheques dated 26 September 2009 and she made various false statements in relation to them. She said that she had not responded to the OSR’s inquiries in July and August 2010 because she had been trying to establish satisfactory answers as to what had happened to the two bank cheques.

6    The applicant told the examiners that she had obtained the bank cheques in September 2009 and that the original bank cheques had been taken by the Bank and lost. Shortly following the statutory examination, the full amount of stamp duty was paid in two amounts.

7    Three years elapsed after the statutory examination before the applicant was indicted on two charges alleging offences by her against ss 319 and 330 of the Crimes Act. The applicant challenged the s 330 charge as an abuse of process on the ground it was “foredoomed to fail” on account of the fact that at the time of the interview there was no course of justice in existence to be perverted. She was initially successful in the NSW Court of Criminal Appeal (Beckett v R [2014] NSWCCA 305; 315 ALR 295) but then failed in the High Court in October 2015 (see R v Beckett [2015] HCA 38; 256 CLR 305).

8    The applicant’s trial on the 2013 indictment commenced in the NSW District Court on 7 September 2016. During the course of the trial, the Crown amended the indictment by substituting for the previous charge under s 319 of attempting to pervert the course of justice, the charges under s 254(b)(iii) of the Crimes Act, which involved using a false document, knowing that it was false, with the intention of influencing the exercise of a public duty. She was also charged under s 330 of the Crimes Act of “making a false statement under oath”. She promptly pleaded guilty to these charges. Her conviction under s 330 was taken into account in sentencing her for the two offences under s 254. She was sentenced to imprisonment for 18 and 20 months respectively in relation to the two offences under s 254. Both sentences were suspended, on the condition that the applicant enter into a bond to be of good behaviour for the term of each sentence.

The AAT’s reasons summarised

9    The AAT published lengthy reasons for decision, which total 46 pages. I will summarise those parts of the reasons which are relevant to the appeal grounds.

10    The AAT summarised:

(a)    the events leading up to and including the applicant’s stamping of the transfer on 10 or 11 June 2010 under the EDR;

(b)    the events which occurred thereafter, including the applicant falsifying the date of the two bank cheques in late September 2010 and the evidence she gave in the statutory examination; and

(c)    the charges against the applicant laid on 29 May 2013 and the history of those charges and the related litigation.

11    The AAT summarised at considerable length many relevant authorities on the issue of whether or not a person is “fit and proper”. The AAT acknowledged at [59] that an assessment of fitness and propriety must be made in a contemporary setting and be assessed as at the time of the AAT proceeding. It is desirable to set out part of [59] which is relied upon by the applicant in her complaint of procedural unfairness (emphasis added):

59.    … Even some kinds of non-disclosure (attributable to personal embarrassment about matters not relating to honesty) may be treated as immaterial to an assessment of fitness: Harris and Tax Practitioners Board [2014] AATA 430 at [36]. But it is difficult to include in the same position lies conceived in advance, directly related to professional integrity, knowingly proffered on oath, and deliberately persisted with in the face of scepticism and testing. It is even more difficult to do so where the lies were conceived and uttered to avoid detection of anterior professional misconduct and to minimise the risk of it being sanctioned. Ms Beckett’s conduct at the 28 September 2010 interview had all of those characteristics. The anterior misconduct for which she was anxious to avoid sanction, was that of stamping the 1 December 2005 transfer at a time when the client could not pay the applicable duty, and when she did not intend to discharge the payment obligation unless and until she was ultimately forced to pay.

12    At [66], the AAT referred to aspects of the applicant’s personal circumstances in 2009 and 2010 which she submitted demonstrated the stress she was under when her September 2010 conduct occurred. Those circumstances included:

(a)    her parental responsibility for six school age dependent children;

(b)    the serious difficulties she was having in her marriage;

(c)    the disruption her husband caused to her office and staff;

(d)    the financial stresses created by her husband’s gambling losses and the cost of the divorce proceedings she initiated; and

(e)    the behavioural problems of one of her adolescent daughters.

13    At [67], the AAT referred to various character references relied upon by the applicant. None of the referees was cross-examined. One such reference was from a former work colleague who described the applicant’s 2010 behaviour as entirely uncharacteristic. Another referee was the applicant’s clinical psychologist and for whom the applicant provided tax and accounting advice. This referee said that she had read the sentencing remarks of the District Court Judge in February 2017 and she surmised that, because the applicant’s behaviour was so out of character, she was likely to have been “under extra-ordinary stress” at the time of her 2010 misconduct. Another referee is a barrister who is another of the applicant’s clients. She had also read the sentencing remarks but she confirmed that she continued to view the applicant as a person of integrity. Another referee is a specialist family law practitioner who was also a client of the applicant. She too had read the sentencing remarks and said that those remarks did not dissuade her from saying that the applicant was “a person of good character within my past dealings with her”. Another referee was a former colleague who had also been a client of the applicant for many years. She was adamant that the applicant would never re-offend and she deposed that, based on her interaction with the applicant in and around September 2009, she believed that the applicant appeared not to be in control of anything in her life and “just appeared to be doing what her ex-husband told her to do”.

14    At [96], the AAT made the following statements in regard to the weight it attached to the unchallenged evidence of the applicant’s referees (without alteration):

96.    In the present case, the submission was that Ms Beckett’s contemporary good fame was sufficiently established by the evidence of the commenders (whose evidence I have earlier outlined:- see paragraph 67 above.) There are two reasons why I do not accept that proposition. The first is that Ms Beckett has (or had) a client base of about 1,400. The positive endorsements proffered to evidence her good fame come from only three of them. Second, good fame requires a broader, and more impressionistic assessment than a person’s repute amongst their informed intimates. As Johnson J said in Jackson v Legal Practitioners Admission Board [2006] NSWSC 1338:-

[56] Whilst there is a certain overlapping of the two terms “fame” and “character”, there is a distinction. Fame involves being known, favourably, by a large section of the public, whilst character is directed to a more objective evaluation which might conflict with what the general public thinks: Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25 at 29 (Miles CJ).

15    The AAT stated at [74] that these references contributed to a picture of the applicant “as generally competent and honest” and that their views were “significant” in this respect. The AAT then added, however, that the views were not “demonstrably informed by a thorough awareness of the “whole picture””. The Senior Member said that the views were not formed “in the discharge of responsibility for the proper pursuit of TASA’s statutory objectives” (referring to the TAS Act).

16    The AAT explained why, unlike the Board, it did not regard the applicant’s non-disclosure to the Board of the February 2016 reprimand until March 2017 as reflecting adversely on any current assessment of her fitness. Nothing more needs to be said about that matter.

17    The AAT then addressed the applicant’s claim that she was under considerable personal stress in September 2010 and the reasons for that stress. It is apt to set out [81] of the AAT’s reasons for decision:

81.    I recognise that Ms Beckett has conceded the dishonesty of her conduct in September 2010. Her references to the stressors affecting her personally in 2009 and 2010 were not intended to detract from that concession, as distinct from provide a context conducive to confidence that no similar misconduct was likely to recur. Nevertheless, Ms Lucas’ allusion to Ms Beckett’s apparent difficulty in recognising and addressing shortcomings calls into question the reality of the extent of Ms Beckett’s real insight. And the reservation implicit in Ms Lucas’ assessment resonates with my own impressions about some aspects of Ms Beckett’s evidence. Those aspects relate to (i) the delusion involved in her approach to the nominal duty issue in 2010, (ii) the likely inaccuracy of the suggestion she made in her affidavit evidence that after June 2010 she had continued to believe in the prospect of a nominal duty assessment and had worked to that end, (iii) her evidence that she had regarded her conduct in relation to the duty dispute as essentially an “administrative matter, (iv) the inaccurate reconstruction involved in her retrospective assertion that she could have defused the matter by pointing to her own bank account and demonstrating that she had the personal means to pay the duty and, (v) her apparent belief that between 2010 and 2016, she had sufficiently discharged her disclosure responsibilities in relation to her various registration and practising certificate renewals.

18    At [82] ff, the AAT addressed the issue of “contemporary integrity and character”. At [83], the AAT addressed the applicant’s submission that the totality of the evidence overcame the difficulty presented by her past calculated dishonesty under oath. In particular, it responded to her submission that her 2010 conduct should be regarded as aberrational and not probative of her contemporary unfitness in 2018. The AAT’s response to these matters forms part of the applicant’s procedural unfairness case so it is desirable to set out all of [84] and [85] of the AAT’s reasons for decision:

84.    The proposition that Ms Beckett has been candid in acknowledging the nature and extent of her misconduct is one that is broadly correct. But aspects of her evidence detract from complete satisfaction. The circumstances in which she stamped the transfer on 10 or 11 June 2010 were, in my view, knowingly improper. At one point in her affidavit evidence in the present proceedings, she alluded to the “special trust” concept, to s 55 of the Duties Act 1997, and to versions of the OSR’s Tax Handbook, with a view to suggesting that there had been some relevant change in the OSR’s practice – despite the absence of any change to the legislation itself. At other points in her affidavit, she said that even after receipt of the OSR’s 30 March 2010 letter, she still believed that the transfer might attract only nominal duty, and she had continued to work towards that end.

85.    This evidence was not credible. As I pointed out earlier in these reasons, Ms Beckett’s attempted reliance in 2009 – 2010 on the nominal duty provisions in the Duties Act 1997 had no foundation. That fact was readily apparent from a cursory knowledge of those provisions and familiarity with the information actually available to Ms Beckett at the time. The inapplicability of those provisions to the contentious transfer had nothing to do with the contents of the OSR handbooks. Ms Beckett ultimately conceded as much when, after being taken to the actual legislative provisions, and to the communications she had exchanged with the OSR, she conceded that her asserted view had been deluded. When she was asked what work she had in fact done to attempt to establish any nominal duty entitlement, after receiving the OSR’s 30 March 2010 letter she was unable to point to anything specific. The reality is that (i) she did nothing and, (ii) the possibility of establishing any nominal duty entitlement had been foreclosed by the contents of the statutory declaration she had provided to the OSR with her 15 March 2010 letter. Her evidence that she discussed the matter with the client, in the context of a discussion that the actual duty obligation was unavoidable, reflects a contemporaneous recognition of that reality:- see paragraph 11 above. Her inactivity in following the matter up between June and September 2010, and her concession that she “went to ground” in avoiding the OSR’s enquiries, all betray a contemporaneous awareness of the reality and unavoidability of the duty obligation in relation to the transfer.

19    At [87], the AAT described why it was unable to accept the proposition that the applicant’s dishonesty during the statutory examination ought not to be characterised as “relevantly premeditated”. The Senior Member said:

87.    … The better view of her conduct is that it was indeed calculated and intentional. The truth of the matter is that Ms Beckett stamped the transfer without PL having provided the funds and with no intention that she would herself timeously discharge that payment obligation. She stonewalled the OSR’s enquiries throughout July and August, and must have anticipated the criticism that both of those deficiencies would attract. She conceived the idea of altering the cheque dates to deflect that criticism, and implemented that idea with the elaborate “trial and error” photocopying process. Finally, she carried out her pre-conceived plan of deception after taking an oath to be truthful.

20    The AAT made further reference to the applicant’s “past misconduct” at [88] where, after stating that the applicant undoubtedly intended to deceive the OSR examiners, the AAT said that she did so “for at least the purpose of avoiding criticism of her past misconduct in stamping the transfer”.

21    At [90], the AAT stated that the applicant’s silence about her serious dishonesty for almost six years (i.e. and not disclosing what she did on 10 or 11 June 2010) did her “no credit, and was likely in breach of the notification obligation” in s 30-35 of the TAS Act. The AAT then summarised the applicant’s evidence that she obtained legal advice from counsel that she was not obliged to disclose her conduct unless and until she had been convicted. The AAT said that this did not adequately explain the applicant’s non-disclosure to the Board prior to the February 2017 disclosure of her guilty plea, noting that her February 2013 tax agent registration renewal application preceded the May 2013 indictment.

22    At [92], the AAT said that the legal advice the applicant received from her counsel concerning disclosure was only evidenced by the applicant’s recollection. The AAT set out several reasons for its scepticism about the applicant’s reliance upon that advice. The AAT stated at [93] that the proper conclusion to draw from the evidence was that the applicant “was indeed aware her conduct preceding and during the 28 September 2010 interview, adversely impacted on her fitness”. At the end of that paragraph, the AAT emphasised that, notwithstanding the Board’s 19 September 2016 reminder to her of her obligations under s 30-35 of the TAS Act concerning charged circumstances and to inform the Board of any “adverse outcomes”, the applicant did not respond to the Board until 17 February 2017. It was only then that she told the Board that the indictment had been amended and that she had pled guilty to two offences under s 254 of the Crimes Act and would be sentenced on 24 February 2017.

23    It is well to set out [94] of the AAT’s reasons for decision, given its significance in the appeal:

94.    In making the preceding comments about Ms Beckett’s inadequate disclosures (and absence of notification) prior to March 2017, I am conscious of the facts that (i) the Board’s 9 November 2017 decision did not rely upon them, (ii) their potential significance was raised only at the hearing, (iii) Ms Beckett was not specifically cross examined about her pre 2017 renewal applications and, (iv) the evidence about the circumstances and content of the advice she received from her former barristers was, in those circumstances, understandably imprecise. For all of those reasons, I do not intend to express any affirmative view that Ms Beckett’s conduct in relation to either her absence of notification or the content of her various renewal applications was knowingly improper and, for that reason, independently probative, or corroborative, of her current absence of good character and fitness. The approach I should be understood to have taken is that the fact of Ms Beckett’s non-disclosure detracts, in the absence of adequate explanation, from the ability to arrive at a properly informed affirmative assessment of her contemporary good character.

24    The AAT concluded that it had reached “a firm view of absence of satisfaction that [the applicant] is currently a person of either good fame, or a person of good integrity and character”. It affirmed the decision under review.

The appeal

25    The notice of appeal identified the following five questions of law and set out the related grounds of appeal:

(a)    question 1 relates to whether the AAT failed to afford the applicant procedural fairness by having regard to evidence in respect of matters which were not raised as concerns in the Tax Practitioners Board’s decision, namely:

(i)    the circumstances in which the applicant stamped the transfer on 10 or 11 June 2010;

(ii)    the reality and unavoidability of the duty obligation; and

(iii)    the “conduct preceding the 28 September 2010 interview”;

(b)    question 2 concerns whether the AAT erred in finding that, prior to her convictions, that the applicant had an obligation to notify the Board pursuant to s 30-35 of the TAS Act;

(c)    question 3 concerns whether the AAT failed to have regard to the privilege against self-incrimination, that the AAT erred in finding that legal advice provided by counsel to the applicant regarding disclosure of the criminal charges was unlikely to have been correct and, that the Board, upon becoming aware of the charges, did not take any further action until the charges resulted in an adverse outcome;

(d)    question 4 concerns whether the AAT erred in rejecting evidence from various referees regarding the applicant’s character; and

(e)    question 5 concerns whether the AAT erred in finding that the applicant was not a fit and proper person.

26    There was no objection to competency.

The parties’ submissions

27    Both parties filed helpful outlines of written submissions, which were then supplemented by their oral submissions at the hearing. In order to avoid adding unduly to the length of these reasons for judgment, I will not summarise those submissions here. Instead, I will briefly outline those submissions where relevant when I address each of the five grounds upon which the AAT’s decision is challenged.

Analysis and determination

(a) Procedural unfairness

28    Unsurprisingly, there was no dispute that the AAT was obliged to act in accordance with the requirements of procedural fairness. Nor was there any contest that the relevant aspect of procedural fairness in this case is that which is reflected in the Full Court’s decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 591-592. In brief, the Full Court held there that while a decision-maker is not required to give a running commentary or “expose his or her mental processes or provisional views”, he or she is required to identify for the person affected “any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made ” and advise of any adverse conclusions “which would not obviously be open on the known material”. The Full Court made the relevant observations at 590-591 and 591-592 (emphasis added):

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 55 FLR 34 at 41. However, as Lord Diplock said in F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:

...the rules of natural justice do not require the decisionmaker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished.

    …

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

29    There is an important qualification to be noted in respect of these statements in Alphaone. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL), Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said at [32] that the emphasised words set out in the extract from Alphaone immediately above gave rise to the need for “considerable care” in setting up a dichotomy between conclusions which are not obviously open on the known material and the mental processes of decision-making (see also the observations of the Full Court in Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174 at [40] (Stowers).

30    As noted in Stowers at [44], the underlying purpose of the notice requirement under the rubric of procedural fairness is to “provide an opportunity for meaningful participation by the potentially aggrieved person and to enable the person fairly to respond to adverse matters” (see also Traill v McRae [2002] FCAFC 235; 122 FCR 349 at [134] per Sackville, Kenny and Allsop JJ). What constitutes adequate notice and when it must be provided is to be determined by reference to the relevant circumstances of the particular case and is directed to enabling the potentially aggrieved person “fairly to respond”.

31    In assessing and determining whether the notice requirement as part of procedural fairness has been met in any individual case, it is well to focus upon the content and application of the general principles to the particular circumstances of the case, rather than simply adopt a superficial approach which compares those circumstances with those in other cases. That is so not the least because of the importance of the particular statutory context in which the issue arises, as well as the importance of focussing upon the particular circumstances of an individual case (see generally the frequently cited observations of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118).

32    The applicant’s complaint of procedural unfairness principally relates to the AAT’s findings at [59], [84], [85] and [93] of its reasons for decision, the relevant parts of which are set out in [11], [18] and [22] above. In particular, the applicant complains that the matters the subject of the adverse findings by the AAT in those paragraphs were not raised as concerns in the Board’s decision and the AAT gave no notice that the applicant was at risk that the following adverse findings could be made:

(a)    the circumstances in which she stamped the transfer on 10 or 11 June 2010;

(b)    the applicant’s “contemporaneous awareness of the reality and unavoidability” of the stamp duty obligation in relation to the transfer; and

(c)    the “conduct… preceding the 28 September 2010 interview”, particularly her conduct in June to August 2010.

33    The applicant acknowledged that both her affidavit evidence in the AAT and her Statement of Contentions set out details of the background which culminated in the offences she committed on 28 September 2010. Such information was necessary, she contended, to understand the nature of the offences. She emphasised that the Board’s statement of reasons for its decision to terminate her registration did not raise as a relevant matter her conduct in June to August which preceded the commission of the offences.

34    In the appeal, the Board emphasised that it was the applicant herself who raised the background circumstances as part of the context of the offending conduct and to ground a contention that the wider circumstances demonstrated that the offending conduct was aberrant. Thus it contended that she could not now complain of procedural unfairness because she had effectively put herself on notice that the AAT might view that preceding conduct as part of her offending conduct or establish premeditation on her part. The Board emphasised that in her statement of contentions to the AAT, the applicant asserted that her dishonest conduct in September 2010 was out of character and “was not part of a premeditated and calculated course of dishonesty”.

35    Although there is some merit to the Board’s submissions as one potential characterisation of the AAT’s reasons for decision, on balance, I do not accept them. While it is true that the AAT examined the matters identified in [32] above for the purposes of rejecting the applicant’s evidence that the September 2010 conduct was aberrant, not premediated and that she had shown candour in understanding the nature and extent of her dishonest conduct in September 2010 (see [81], [83] read with the first two sentences in [84], the first two sentences in [87]), its findings on these issues went beyond a rejection of the applicant’s case. The contents of [84], [85] and the relevant part of [93] of the AAT’s reasons for decision demonstrate the AAT was not simply responding to the applicant’s evidence or submissions concerning the preceding conduct, but rather it made considered and grave positive findings that the applicant had been dishonest and engaged in conduct which was “knowingly improper”.

36    At [88], the AAT made a further reference to the applicant’s “past misconduct in stamping the transfer”, which is a plain reference to the events of 10 or 11 June 2010 (see also the related findings at [87] of the AAT’s reasons, which are set out in [19] above and the AAT’s reference at [89] to its findings that the applicant “had been contemporaneously aware of the misconduct involved in the June 2010 stamping, and had lied to conceal it” and that the applicant “failed to appreciate that her lies on oath had compounded her earlier misconduct”). These findings go well beyond a mere rejection of the applicant’s contention that her conduct on 28 September 2010 was not premeditated. The AAT went much further and made discreet and serious adverse findings that the applicant’s preceding conduct was dishonest, knowingly improper and involved misconduct.

37    The procedural unfairness is also manifest in the AAT’s adverse finding at [59] of its reasons for decision, upon which the applicant relied in her oral submissions in the appeal as supporting her complaint of procedural unfairness. The relevant part of [59] is set out at [11] above. The AAT’s reference to the applicant’s “anterior professional misconduct” plainly relates to conduct which occurred well before 28 September 2010. It refers to her stamping the transfer on 10 or 11 June 2010 at a time when her client could not pay the applicable duty and the applicant’s intention to delay discharging the payment obligation unless and until she was forced to do so.

38    These findings of professional misconduct and intentional dishonesty in relation to the events preceding September 2010 referred to above demonstrate that these findings were viewed as independently probative in the AAT’s discussion of the applicant’s notification obligations and as a basis for doubting her contemporary fitness and propriety.

39    None of these matters was squarely put to the applicant by the AAT so that she had an opportunity to comment in advance on the AAT’s proposed adverse findings, which were serious and material in the AAT’s decision to affirm the decision under review. Nor, having regard to the Board’s statement of reasons for the primary decision and the parties’ respective contentions and evidence before the AAT, were the AAT’s relevant adverse findings obviously open on the known material. The adverse findings concerning the applicant’s conduct in the period June to August 2010 formed part of the AAT’s reasons as to why it came to a “firm view” that it could not be satisfied that the applicant was currently a person of good fame, integrity and character, as is made explicit in [98] of the AAT’s reasons for decision (noting, in particular, the AAT’s reference there to its reasons operating “both individually and in combination”).

40    In this context, the following observations in SZBEL at [35] (emphasis added) have some relevance:

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.

41    The AAT’s failure to give adequate notice to the applicant of the possibility that it may make adverse findings concerning the applicant’s preceding conduct which occurred well before the events immediately surrounding the 28 September 2010 examination is put into sharper relief by the events which occurred at the outset of the AAT’s hearing. On the first day of the hearing the Senior Member raised five specific matters and invited the parties’ response to them. The five issues were:

(a)    did the AAT need to know the detail of the circumstances in which the Board became aware of the criminal proceedings against the applicant;

(b)    was it relevant for the AAT to know the nature and extent of the applicant’s registration renewal declarations to the Board and/or applications for practising certificates in the period 2010 to 2016;

(c)    did the AAT need to know anything about the circumstances surrounding the two different charges that were ultimately pursued in the District Court after the High Court’s decision which allowed the s 319 charge to be maintained;

(d)    was it relevant for the AAT to know the reasons why the applicant did not seek a renewal of her legal practising certificate; and

(e)    given the AAT’s tentative view that the statement of reasons by the Tasmanian Legal Profession Board in relation to the reprimand which it gave to the applicant was unsatisfactory, did the AAT need to know what communications passed between the applicant and that Board and the factual justification for the Board’s conclusions?

42    It may be inferred that the Senior Member adopted this course in order to meet procedural fairness requirements, given that none of the five matters had been relied on by the Board in making its primary decision, nor did the Board raise any of those matters in the AAT. It is significant that none of the five matters relates directly to the possibility that the AAT might make adverse findings regarding the applicant’s conduct in the period June to August 2010 in relation to any of the three matters which are particularised by the applicant in her complaint of procedural unfairness. Nor at any other point during the hearing did the AAT put the applicant on adequate notice that it might make those findings.

43    It is evident from a review of the AAT transcript, a copy of which was included in the appeal materials, that the Senior Member personally asked numerous questions of the applicant. The applicant does not complain that this questioning was so excessive so as to give rise to procedural unfairness. There is a separate matter, however, whether the nature and extent of that questioning put the applicant on adequate notice of the risk that the AAT might make the adverse findings which are the focus of what is now the applicant’s procedural unfairness case. The Senior Member’s questions to the applicant were directed to such topics as the applicant’s conduct in altering the date on the cheques, the events surrounding the stamping of the transfer, the applicant’s state of mind when she stamped the document , the contact which the applicant had with OSR officers after the transfer was stamped , the applicant’s belief and understanding that the transfer may attract only nominal duty and, aspects of the applicant’s affidavit in the AAT and legal advice provided to the applicant by her counsel. Many of the Senior Members questions related to the applicant’s conduct and state of mind prior to the statutory examination on 28 September 2010. I do not consider that the applicant was put on adequate notice by the Senior Member’s questions that there was a risk that the Senior Member would make the adverse findings which are at the heart of her procedural unfairness complaint. Significantly, at no point during his questioning (which is perhaps more accurately described as cross-examining) did the Senior Member put to the applicant and invite her response to the proposition that aspects of her conduct in June to August 2010 were dishonest, knowingly improper or involved misconduct.

44    In oral submissions, the Board submitted that any procedural unfairness in respect of the matters raised by the applicant was not material because the matters set out by the AAT in [87] and [88] of its reasons for decision were “dispositive” of why the AAT affirmed the Board’s decision. That submission is rejected for two reasons. First, both those paragraphs contain direct references to the applicant’s conduct during the period June to August 2010, which demonstrates that the adverse findings in relation to the applicant’s conduct during that period was material and taken into account by the AAT. Secondly, as explained at [37] above, the AAT stated at [98] of its reasons for decision that its conclusion was based on all of the material before it and that its reasons for finding that the applicant was not currently a person of good fame, integrity and character operated “both individually and in combination”. This necessarily included the material which gave rise to the AAT’s adverse findings concerning the applicant’s conduct in the period June to August 2010.

45    Contrary to the Board’s submission, the mere fact that under questioning the applicant conceded that her reliance on the nominal duty provisions in the Duties Act 1997 (NSW) was “deluded” falls short of demonstrating any appreciation on her part that there was a risk that the AAT would find that her conduct in June 2010 in stamping the transfer was dishonest, knowingly improper or amounted to misconduct. These matters were never squarely put to the applicant, nor were these adverse findings by the AAT obviously open on the known material.

46    I accept the Board’s submission that it was not part of its case before the AAT that the AAT should make the adverse findings which now underpin the applicant’s procedural unfairness case. The procedural unfairness which occurred appears to have resulted from the Senior Member’s own view that the applicant’s conduct in the period June to August 2010, and not merely her conduct on and immediately before her statutory examination on 28 September 2010, was relevant as independently probative in an assessment of her contemporary fitness and propriety. But no adequate prior notice was given to the applicant of this view.

47    For these reasons, I uphold the applicant’s complaint of procedural unfairness.

(b) Notification obligations

48    In essence, the applicant contends that the AAT’s finding that, throughout the period from September 2010 to August 2016, the applicant failed to meet the notification obligations under s 30-35(1)(a) of the TAS Act implies that throughout this period the applicant was viewed by the AAT as not being a fit and proper person. She further contended that the AAT asked itself the wrong question by focusing upon the issue whether she was a fit and proper person at a past point in time, as opposed to at the relevant time, which was the AAT’s hearing. At [34] of its reasons for decision, the AAT found that the applicant’s letter dated 17 February 2017 to the Board was the only occasion since September 2010 when the applicant “could reasonably be regarded as having attempted to discharge her notification obligations” under that provision.

49    Under s 30-35(1), a registered tax agent is required to make written notification to the Board if (without alteration):

(a)    you cease to meet one of the tax practitioner registration requirements; or

(b)    an event affecting your continued registration, as described in section 20-45, occurs; or

(c)    there is a change in your business or email address or of any other circumstances relevant to your registration.

50    The expression “tax practitioner registration requirements” is defined in s 90-1 of the TAS Act as “the matters about which the Board must, under Subdivision 20-A, be satisfied before the Board is obliged to grant an application for registration under this Act”. Sections 20-5 and 20-15 are included in Subdiv 20-A. The former provision states that an individual is eligible for registration as a tax agent if they are “a fit and proper person”. The latter provision specifies matters which the Board is required to have regard to in determining whether a person is a fit and proper person, including “whether the individual is of good fame, integrity and character”.

51    In substance, the applicant complained that the AAT engaged in circular reasoning. This was because it took the view that because the applicant had ceased in the past to be of “good fame, integrity and character” she was obliged to notify the Board of that matter under s 30-35. The very issue which the Board, and later the AAT, had to determine, was whether at the time of those respective hearings, the applicant was not of good fame, integrity and character.

52    For the following reasons, I am not satisfied that ground 2 is made out. First, in my view, the applicant has mischaracterised the AAT’s reasoning. The AAT correctly appreciated that the relevant question was whether the applicant was not of good fame, integrity and character as at the date of the AAT’s hearing, as is made clear at [57] of its reasons for decision. Moreover, the AAT did not err when it stated at [49] and elsewhere that past dishonesty is likely to be highly probative of unfitness, while also correctly acknowledging at [55] that any assessment of contemporary fitness which has regard to past misconduct must pay adequate regard to the “whole position” in which the conduct occurred.

53    Secondly, and equally significantly, I accept the Board’s submission that, in any event, the AAT did not make a specific finding that the applicant had in fact breached the notification obligation under s 30-35. The highest the AAT put it was to state in [90] that the applicant “was likely in breach” of that obligation. Furthermore, at [94] the Senior Member expressly stated that he did not intend to express “any affirmative view that the [the applicant’s] conduct in relation to either her absence of notification or the content of her various renewal applications was knowingly improper and, for that reason, independently probative, or corroborative, of her current absence of good character and fitness”. There is little doubt that the AAT made that statement with a view to avoiding any issue of procedural unfairness in relation to this particular topic. That is not to say, however, that the AAT viewed the non-disclosures as irrelevant. In the final sentence to [94] the AAT explained that the absence of an adequate explanation from the applicant of her non-disclosures detracted from the AAT’s ability to affirmatively conclude that she had a contemporary good character.

54    Thirdly, I reject the applicant’s submission that the AAT predetermined the issue of the applicant’s contemporary fitness and propriety as was said to be reflected by its adverse observations concerning the applicant’s discharge of her obligation under s 30-35 in the period prior to her sending her letter dated 17 February 2017 to the Board. As mentioned above, the AAT correctly focussed on the question whether the applicant was of good fame and character as at the date of the AAT’s hearing and, in determining this central question, the AAT was entitled to take into account the applicant’s past conduct (subject to compliance with procedural fairness requirements).

55    For these reasons, I am not satisfied that the applicant has made good this particular ground of challenge to the AAT’s decision.

(c) Applicant’s non-disclosure

56    Ground 3 relates to the AAT’s findings regarding the applicant’s non-disclosure to the Board of the offences of which she was ultimately committed, including the offence under s 330 of the Crimes Act which was taken into account in her sentencing. It is significant that the ground of appeal relates to the disclosure of the charges that were laid against her, and not her failure to disclose her broader conduct. This is significant, not the least because the AAT’s findings relating to non-disclosure do not always clearly differentiate between non-disclosure of the applicant’s broader conduct (including her conduct relating to the stamping of the transfer in June 2010) as opposed to her failure to disclose specific charges against her. Given the significance of the distinction, it is appropriate to set out in full question of law 3 in the notice of appeal:

3.    Whether in relying to the Appellant's detriment on the fact that the Appellant did not disclose the offences of which she was ultimately convicted or those taken into account in her sentencing in her applications for renewal of her registration in 2013 and 2016:

a.    The Tribunal impermissibly failed to have regard to the principles protecting a person against self-incrimination, in circumstances where the Appellant was reasonably and, ultimately justifiably, defending the charges then brought against her.

b.    The Tribunal erred in relying upon a finding that the advice on which the Appellant relied in relation to the disclosure of the charge against her was “unlikely to have been correct”.

c.    The Tribunal impermissibly failed to have regard to the fact that, once the Appellant had provided information to the Tax Practitioners Board concerning the charges brought against her, the Board was content to leave any further action until the charges had resulted in an adverse outcome”.

57    The grounds relied on by the applicant in respect of this question of law refer to [94] of the AAT’s reasons for decision and the AAT’s reliance upon the “fact of[the applicant’s] non-disclosure as detract[ing] in the absence of adequate explanation, from the ability to arrive at a properly informed affirmative assessment of her contemporary good character”. The applicant then raised the following grounds in [7] of her notice of appeal:

7.    In so concluding the Tribunal:

a.    The Tribunal impermissibly failed to have regard to the principles protecting a person against self-incrimination, in circumstances where the Appellant was reasonably and, ultimately justifiably, defending the charges then brought against her.

b.    The Tribunal erred in relying upon a finding that the advice on which the Appellant relied in relation to the disclosure of the charge against her was "unlikely to have been correct".

c.    The Tribunal impermissibly failed to have regard to the fact that, once the Appellant had provided information to the Tax Practitioners Board concerning the charges brought against her, the Board was content to leave any further action until the charges had resulted in an “adverse outcome”.

58    As noted above, the AAT’s statements in [94] of its reasons for decision are the central focus of this ground. The full terms of [94] are set at [23] above. It is difficult to understand the AAT’s reference in the first sentence of that paragraph to the applicant’s “inadequate disclosures… prior to March 2017”. Presumably the AAT is referring to the applicant’s tax agent registration renewal application, which appears to be undated but was apparently lodged on or around 31 March 2017. In that application, in response to a question whether she had been convicted of an offence involving fraud or dishonesty, the applicant disclosed that she had “Pleaded guilty regarding 2010 investigation by NSW Office of State Revenue. Sentence completely suspended by Justice (sic) Berman due to circumstances”. It is not easy to understand why the AAT apparently had this disclosure in mind as marking the end point of what it viewed as the applicant’s prior inadequate disclosures and absence of notification in circumstances where, elsewhere in its reasons, the AAT appeared to view the applicant’s disclosure to the Board in her 17 February 2017 letter of her guilty plea as marking that end-point (see [34] and [91]). In any event, the applicant does not challenge this apparent anomaly and nothing of significance in the appeal turns on it.

59    As the introductory words to [94] make clear, the AAT’s observations in that paragraph refer back to the Senior Member’s “preceding comments” regarding what is described as the applicant’s “inadequate disclosures (and absence of notification)”. Those comments are primarily to be found in [90] to [93] of the AAT’s reasons for decision. Those paragraphs include the AAT’s analysis and findings in respect of the applicant’s claim that she relied on her counsels’ advice in not making any earlier disclosure to the Board. The AAT did not accept that claim, for reasons which may be summarised as follows:

(a)    that legal advice was only obtained after the May 2013 indictment was laid and the advice related to that indictment, rather than to any broader issue of her obligation of disclosure or notification other than in respect of her legal practising certificate and professional indemnity insurance;

(b)    the pro forma tax agent registration renewal applications were not confined to requiring disclosure of convictions because they also included a question about whether “there are any matters or events that may affect your good fame, integrity and character”;

(c)    the legal advice which the applicant received was evidenced only by the applicant’s recollection and the AAT doubted that the advice was as unqualified as the applicant suggested (i.e. that she was not obliged to disclose her conduct unless and until she had been convicted). The AAT’s doubts on this matter are set out at [92] of its reasons for decision;

(d)    the AAT found at [93] that the applicant was “indeed aware her conduct preceding and during the 28 September 2010 interview, adversely impacted on her fitness”. It then added that the 2013 legal advice related to disclosure of the s 319 charges and “did not specifically address the content of her renewal related obligations”; and

(e)    it found that the applicant had acted in a “self-interested and inadequate way” in not discharging her registration renewal related obligations for reasons that are set out at [93], which include reference to the four and half months delay in the applicant responding to the Board’s 19 September 2016 letter which reminded her of her obligation to inform the Board of “any adverse outcomes” relating to the criminal charges.

60    It is against the background of these relevant matters that I now turn to explain why I reject all three aspects of ground 3. First, I do not accept that the AAT “impermissibly failed to have regard to the principles protecting a person against self-incrimination”. Although the AAT made no explicit reference to those principles it was plainly conscious of their potential application. The AAT did not disregard the principles, rather it considered that they had little or no relevance to the applicant’s disclosure and notification obligations to the Board for the reasons set out by the AAT in [92] and [93], with particular emphasis on the fact that the legal advice was not obtained until after the May 2013 indictment and was not directed to the issue of the applicant’s disclosure or notification obligations to the Board.

61    Secondly, the AAT’s statements at [92] (i.e. that counsels’ advice “seems objectively surprising, unlikely to have addressed all the relevant considerations, and unlikely to have been correct”) need to be read in context. Those observations flow from the AAT’s acknowledgment that it did not know “the precise circumstances and content of the barristers’ advice”. In that context, the statements at [92] appear to be an observation suggesting that the appellant’s evidence with respect to this advice was not credible and the AAT had some reservations about relying on it. As the applicant pointed out the relevant question was the reasonableness of the applicant’s subjective belief and understanding concerning her obligations of disclosure or notification (in circumstances where she said she relied upon her legal advice), rather than on the objective correctness of that legal advice. I am not persuaded, however, that the AAT’s approach reveals an appealable error of law. The AAT was focussing upon the applicant’s state of mind for a period which spanned from June 2010 to early 2017. As emphasised above, the legal advice was not obtained until after May 2013. In circumstances where the applicant stated that her belief and understanding regarding her obligations of disclosures/notification relied upon her counsels’ advice, it was open to the AAT to express the reservations that it did on that matter.

62    Thirdly, I do not accept the applicant’s submission that the AAT impermissibly failed to have regard to the fact that, once she provided information to the Board concerning the charges brought against her, the Board was content to leave any further action until the charges had resulted in an “adverse outcome”, as stated in the Board’s letter dated 16 September 2016. These matters are expressly referred to by the AAT in [32] and [33] of its reasons for decision. The applicant’s complaint appears to be directed to the weight which the AAT gave to these matters which, in the circumstances, impermissibly invites the Court to engage in a de novo review.

63    For these reasons, ground 3 is rejected.

(d) The applicant’s character references

64    In ground 4 of her notice of appeal, the applicant alleged that the AAT had applied an approach “that was unjustifiable and incorrect in law” in the findings it made concerning the applicant’s character references. In particular, she contended that the AAT erred when, at [96] of its reasons for decision, it rejected the unchallenged evidence from her referees regarding her contemporary good fame because the applicant had a client base of about 1,400 persons, yet the AAT viewed as significant that she had provided references containing “positive endorsements” as to her good fame from “only three of them”. In actual fact, four of the applicant’s references were from people who were, or had been, clients of the applicant and who gave favourable evidence as to her character. Such an error of fact would not of itself be sufficient to give rise to an error of law.

65     More significantly, however, one of the two reasons given by the AAT at [96] as to why it did not accept the applicant’s submission that her contemporary good fame was sufficiently established by those unchallenged referees was that only three (sic) of the applicant’s client base of approximately 1,400 had positively endorsed her contemporary fame and character. The irresistible inference is that the AAT viewed the unchallenged evidence of those referees as insufficient to establish, on their own, her contemporary fame and character. It is not easy to follow or understand the logic of this part of the AAT’s reasoning. None of the applicant’s referees was cross-examined (including the four referees who were also clients) and their evidence remained unchallenged. None of the applicant’s other clients (or indeed any other person) gave evidence to the effect that the applicant was not regarded as presently of good fame and character.

66    Of course, it is trite that the AAT is not bound by the rules of evidence (see s 33(1)(c) of the AAT Act), and it was a matter for the AAT to determine what weight it should give to this character evidence even in circumstances where the referees were not cross-examined. But the AAT’s stated reason for discounting the unchallenged evidence seems to be that only a small percentage of the applicant’s client base provided such character evidence. The irresistible inference to be drawn from what the AAT said at [96] is that the Senior Member viewed as significant and fatal that favourable references had not been provided by more of the applicant’s clients. I accept the applicant’s submission that there is no logical or intelligible basis for that view. This does not involve a mere finding of fact which would only be open to challenge on limited grounds in an appeal under s 44 of the AAT Act. Rather, it constitutes an error of law because the AAT’s view is based on illogical or irrational reasoning and is a form of legal unreasonableness (see FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 310 ALR 1 at [6] and [13] per French CJ and Gageler J and also Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180; 227 FCR 459 at [70] regarding unreasonableness in a s 44 AAT Act appeal). The Senior Member’s reasoning appears to be that he could not be satisfied of the applicant’s contemporary good fame and character on the basis of three (sic) unchallenged character references provided by clients of the applicant because he did not know the attitude of other clients in her large client base. What is left entirely unclear, however, is how many more client affidavits would be required to provide a basis for the relevant satisfaction. Is it 10, 50, 100, 500, or every one of those clients? As I have emphasised, the character references which were before the AAT were all unchallenged. The Senior Member’s reasons for not accepting that evidence is illogical, irrational and lacks an intelligible justification.

67    Ground 4 should be upheld on this basis. It is unnecessary to consider the application of the principles in Jones v Dunkel (1959) 101 CLR 298, upon which the applicant also relied.

(e) Failure to consider the applicant’s contemporary fitness and propriety

68    The applicant stated that this ground is based on the cumulative effect of the errors alleged in respect of grounds 1 to 3 in particular. The applicant has succeeded in respect of ground 1, but has failed in respect of grounds 2 and 3. In the circumstances, ground 5 adds nothing to ground 1 and it is rejected.

Conclusion and orders

69    For these reasons, the appeal should be allowed with costs, the AAT’s decision dated 14 June 2018 should be set aside and the applicant’s review application be remitted to the AAT for reconsideration according to law.

70    The applicant also sought an order that the reconsideration be considered by a differently constituted AAT. The Board did not oppose that proposed order. As was pointed out by the Court during argument, the Court normally takes the view that it is a matter for the President of the AAT to determine the constitution of the AAT in any particular matter. The applicant submitted that the matter should not go back to Senior Member because he had “entered the field of battle to such a degree and expressed views concerning [the applicant’s] credit”. Those submissions should be accepted. It is appropriate that the matter be remitted to a differently constituted AAT because of the apprehension of pre-judgment which would plainly arise if the matter were remitted to the Senior Member.

71    It is also appropriate to continue to stay the operation of the Board’s decision dated 9 November 2017 along similar lines to the stay made by the AAT on 9 February 2018.

72    Appropriate orders will be made accordingly.

Associate:

Dated:    17 April 2019