FEDERAL COURT OF AUSTRALIA

Jordan, Commissioner of Taxation v Second Commissioner of Taxation

[2019] FCA 1602

ORDERS

THE COURT DECLARES THAT:

1.    To the extent that documents in the control of the Australian Taxation Office relating to the affairs of the Second Respondent (the Documents) contain protected information as defined in s 355-30(1) of Schedule 1 to the Taxation Administration Act 1953 (Cth), a disclosure of the Documents by an entity who is a taxation officer to:

(a)    The Applicant and his legal representatives in the defamation proceedings commenced by the Second Respondent in this Court against The Applicant (the Defamation Proceedings); and

(b)    The Second Respondent and his legal representatives in the Defamation Proceedings; and/or

(c)    this Court,

for the purpose of their use in the Defamation Proceedings will be in the performance of the taxation officer’s duties as a taxation officer by reason that the disclosure will be for the purpose of civil proceedings related to a taxation law, within the meaning of Item 3 in s 355-50(2) of the Taxation Administration Act 1953 (Cth).

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

REASONS FOR JUDGMENT

WHITE J:

1    This judgment concerns an application by the Commissioner of Taxation, Mr Jordan, for a declaration that the disclosure by an officer of the Australian Taxation Office (the ATO) of documents concerning the taxation affairs of the second respondent, Mr Gould, for the purpose of identified legal proceedings, would be within one or more of the permitted exceptions to the prohibition on the disclosure of “protected information” contained in s 355-25(1) in Sch 1 to the Taxation Administration Act 1953 (Cth) (the TA Act).

2    Mr Jordan seeks that declaration in order that the information may be disclosed to him, to Mr Gould and to the Court for the purpose of his defence to defamation proceedings brought by Mr Gould.

3    The first respondent to the application is a Second Commissioner of Taxation (the Second Commissioner) and the second respondent is Mr Gould.

4    The Second Commissioner supported the Court making the declaration sought by Mr Jordan. His counsel, Mr Lloyd SC, made brief submissions addressing particular issues which had arisen during the hearing.

5    Counsel for Mr Gould, Mr Smark SC, adopted the submissions which Mr Jordan made in support of the application.

6    Because the attitude taken by the Second Commissioner and by Mr Gould to the application meant that the Court would not have the benefit of a contradictor, the parties sensibly agreed that an amicus curiae should be appointed for this purpose. Mr Kennett SC appeared as amicus. The effect is that the Court heard submissions in support of the application from Mr Jordan, whose submissions were adopted by Mr Gould, brief submissions from the Second Commissioner, and submissions in opposition by Mr Kennett SC.

Factual setting

7    Mr Jordan was appointed the Commissioner of Taxation under s 4 of the TA Act on 1 January 2013 and reappointed to that position on 27 April 2017.

8    On 5 July 2017, Mr Jordan made a speech to the National Press Club. It was an agreed fact that Mr Jordan had made that speech in his capacity as Commissioner of Taxation.

9    Following the conclusion of his speech, Mr Jordan answered questions from journalists. He declined to answer directly a question concerning the tax position of one identified taxpayer, saying that he would rather do it under Parliamentary privilege. He then said:

But what I can say to you is there’s very often two sides to a story, and historically people come out strongly with one side of a story …

10    After giving an example expressed in very general terms of a case which had occurred in the United States of America, Mr Jordan continued:

So, you know, it intrigues me – if I can give another example – this Hua Wang Bank case. It was a Wickenby case. It involved one promoter with over $350 million we’ve collected. They formed this Samoan bank and did all these transactions to hide profits. And you have the principal of that scheme appearing before the House of Reps Committee on tax disputes, giving evidence and being cited, saying how difficult and awful, and the Tax Office (sic). You had his barrister appearing on one of the major radio stations in Sydney saying they’re like the Gestapo, the whole lot should be sacked and sent out, and the Federal Court says, it was the most disgraceful behaviour they’d ever seen, they referred the matter for money-laundering, insider trading and tax evasion of the worst kind, confirmed by the Full Federal Court, confirmed by the High Court. So here’s one – so, they are actually going to have the gall to appear before an inquiry to say how bad we are in terms of the way we handle disputes. The other side is the Court found it was the most disgraceful behaviour they’ve ever seen involving money-laundering, tax fraud and insider trading of Australian shares. So, you know, sometimes there’s two sides to a story, and I can’t always tell the other side.

11    It was an agreed fact that Mr Jordan’s reference to “a Wickenby case” was a reference to a case resulting from Project Wickenby. It was also agreed that Project Wickenby was an agency task force into international tax evasion conducted by the Australian Federal Police, the Australian Crime Commission, the Australian Securities and Investments Commission and the ATO.

12    The parties agreed that Mr Jordan’s reference to the “Hua Wang Bank” case was a reference to litigation resulting in the following judgments in this Court and in the High Court of Australia:

(a)    Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392, (2014) 100 ATR 244;

(b)    Bywater Investments Ltd v Commissioner of Taxation [2015] FCAFC 176, (2015) 236 FCR 520; and

(c)    Bywater Investments; Hua Wang Bank Berhad v Commissioner of Taxation [2016] HCA 45, (2016) 260 CLR 169.

13    The first instance judgment in the Hua Wang Bank litigation contained a finding (not disturbed on appeal) that five companies, each of which had objected to income tax assessments by the Commissioner of Taxation, were ultimately controlled or managed from Australia by Mr Gould and were therefore liable to pay income tax under Australian income tax legislation. The five companies were:

(a)    Hua Wang Bank Berhad;

(b)    Chemical Trustee Ltd;

(c)    Derrin Brothers Properties Ltd;

(d)    Bywater Investments Ltd; and

(e)    Southgate Investment Funds Ltd.

14    On 3 October 2017, Mr Gould commenced proceedings in this Court against Mr Jordan, claiming that he had been defamed by the statements of Mr Jordan quoted above (the Defamation Proceedings). In those proceedings, he alleges that listeners would have understood Mr Jordan’s reference to “the principal of that scheme” to be a reference to himself and would have understood Mr Jordan’s words to convey the following defamatory meanings:

(a)    [he] had engaged in the worst kind of money laundering;

(b)    [he] had engaged in the worst kind of insider trading;

(c)    [he] had engaged in the worst kind of tax fraud.

15    The Defamation Proceedings have been stayed pursuant to a succession of orders made with the consent of both parties. That is because Mr Gould is facing criminal charges and the parties appreciated that there may be a significant overlap between the issues and evidence in the criminal proceedings, and those in the Defamation Proceedings. For this reason, Mr Jordan has not yet filed a defence to the Defamation Proceedings.

16    However, in order to prepare his defence, Mr Jordan wishes to have access to material held by the ATO concerning Mr Gould. It was common ground that the ATO holds a considerable volume of material, and that this material includes “protected information”. I will return to the meaning of that term shortly.

17    Mr Jordan’s solicitors, Clayton Utz, made a request to the Second Commissioner that he provide access to the materials held by the ATO concerning Mr Gould and his related entities. They seek that information in order to advise Mr Jordan on the availability of defences that may be open to him in the Defamation Proceedings, including fair report of proceedings of public concern, justification, contextual truth and qualified privilege. The solicitors made the request to the Second Commissioner because Mr Jordan had delegated to him the Commissioner’s powers and functions under the TA Act, the Income Tax Assessment Act 1936 (Cth) (the ITAA 1936) and the Income Tax Assessment Act 1997 (Cth) (the ITAA 1997) with respect to the making of any decision on the disclosure of “protected information” concerning Mr Gould in relation to the Defamation Proceedings. Mr Jordan had made that delegation on 15 August 2018, acting in his capacity as Commissioner of Taxation and exercising the power vested in him by s 8(1) of the TA Act.

18    The Second Commissioner has accepted that a “substantial proportion” of the documents held in the ATO containing “protected information” may be of assistance to Mr Jordan in defending the Defamation Proceedings.

The statutory scheme

19    Division 355 of Sch 1 to the TA Act is concerned with the protection of the confidentiality of the information provided by, or concerning, the taxation affairs of taxpayers. Division 355-B addresses the disclosure of “protected information” by taxation officers; Div 355-C addresses the “on-disclosure” by other people of “protected information”; and Div 355-D is concerned with the disclosure of “protected information” by an entity which has acquired the information unlawfully.

20    Section 355-1 contains an overarching provision that the disclosure of information about the tax affairs of a particular entity is prohibited, except in the circumstances specified in Div 355 itself, or in other laws of the Parliament.

21    Section 355-10 states the objects of Div 355:

355-10 Objects of Division

The objects of this Division are:

(a)    to protect the confidentiality of taxpayers’ affairs by imposing strict obligations on *taxation officers (and others who acquire protected tax information), and so encourage taxpayers to provide correct information to the Commissioner; and

(b)    to facilitate efficient and effective government administration and law enforcement by allowing disclosures of protected tax information for specific, appropriate purposes.

22    As is apparent, the first object of Div 355 is the imposition of strict obligations for the protection of the confidentiality of taxpayers’ affairs. The stated purpose of that object is to promote the provision to the ATO by taxpayers of information which is correct. A second object of Div 355 is the facilitation of efficient and effective government administration and law enforcement by allowing the disclosure of protected tax information “for specific, appropriate purposes”.

23    In Consolidated Press Holding Ltd v Commissioner of Taxation (1995) 57 FCR 348 at 350, Lockhart J elaborated these objects with reference to the predecessor provision of s 355-25:

Section 16 is designed to ensure that officers of the Australian Taxation Office maintain secrecy regarding the affairs of taxpayers. The section reflects the intent of the Parliament to balance two competing areas of public interest: on the one hand the interests of taxpayers in having the privacy of their financial information respected; and on the other hand the facilitation of the administration of governmental business. Taxpayers are responsible for reporting their income and outgoings. It is essential if the confidence of taxpayers is to be maintained that private information concerning their finances and affairs will not be disclosed except in the special circumstances mentioned in the various sub-sections of s. 16. The voluntary disclosure by taxpayers of this confidential information concerning their assessable income and outgoings is vital to the efficient operation of Australia’s taxation laws. If taxpayers lack this confidence, reluctance may develop to disclose voluntarily the requisite information.

24    Subdivision 355B gives effect to these objects by first imposing a general prohibition on the disclosure of “protected information” and then providing for a number of exceptions to that general prohibition.

25    Section 355-25(1) contains the general prohibition:

(1)    An entity commits an offence if:

  (a)    the entity is or was a *taxation officer; and

  (b)    the entity:

    (i)    makes a record of information; or

(ii)    discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection (2)) or to a court or tribunal; and

   (c)    the information is *protected information; and

(d)    the information was acquired by the first-mentioned entity as a taxation officer.

26    The term “entity” appearing in s 355-25(1) has a relevant definition in s 960-100 of the ITAA 1997. It means an individual, a body corporate, a body politic, a partnership, any other unincorporated association or body of persons, a trust, a superannuation fund and an approved deposit fund.

27    Section 355-25(2) extends the s 355-25(1) prohibition to certain entities which are referred to as “covered entities”.

28    The term “taxation officer” is defined in s 355-30(2) to mean (relevantly):

  (a)    the Commissioner or a *Second Commissioner; or

(b)    an individual appointed or engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office.

29    The term “protected information” used in s 355-25(1) is defined in s 355-30(1):

(1)    Protected information means information that:

(a)    was disclosed or obtained under or for the purposes of a law that was a *taxation law (other than the Tax Agent Services Act 2009) when the information was disclosed or obtained; and

  (b)    relates to the affairs of an entity; and

  (c)    identifies, or is reasonably capable of being used to identify, the entity.

Note:    Tax file numbers do not constitute protected information because they are not, by themselves, reasonably capable of being used to identify an entity. For offences relating to tax file numbers, see Subdivision BA of Division 2 of Part III.

30    A “taxation law” is an Act (or part of an Act) of which the Commissioner has the general administration, legislative instruments made under such Acts, and the Tax Agent Services Act 2009 (Cth) or regulations made under that Act – see s 995-1 of the ITAA 1997.

31    The strictness of the s 355-25(1) prohibition is emphasised by the stipulation in s 355-35 that the consent to the disclosure by the person to whom the protected information relates is not a defence to a prosecution for a contravention of s 355-25(1).

32    Section 355-1 indicates that the exceptions “are designed having regard to the principle that disclosure of the information should be permitted only if the public benefit derived from the disclosure outweighs the entity’s privacy”.

33    Expressed broadly, the exceptions in Div 355-B to the overarching prohibition on disclosure of protected information are in the following categories:

(a)    information which is already publicly available (s 355-45);

(b)    information concerning the aggregate tax collected or assessed, provided that no individual is identified or capable of being identified (s 355-47);

(c)    disclosure in the performance of a taxation officer’s duties (s 355-50);

(d)    disclosure to a Minister in defined circumstances (s 355-55);

(e)    disclosure for other Governmental purposes (s 355-65); and

(f)    disclosure for law enforcement and related purposes (s 355-70).

Section 355-25 is expressed not to apply in each of these cases.

34    Section 355-40 provides that, with one exception which is not presently material, “nothing in this Subdivision limits the generality of anything else in it”. This has the effect, amongst other things, that none of the exceptions for which the Subdivision provides is to be regarded as confined by any other exception. Nevertheless, as Mr Kennett SC submitted, it seems improbable that the Parliament intended that the s 355-50 exception be construed so broadly as to encompass some or all of the specific exceptions. Parliament should be taken to have intended that these exceptions have some operation not encompassed by s 355-50.

35    It is the exception for which s 355-50 provides which is pertinent presently.

36    Section 355-50 provides (relevantly):

355-50 Exception—disclosure in performing duties

(1)    Section 355-25 does not apply if:

   (a)    the entity is a *taxation officer; and

(b)    the record or disclosure is made in performing the entity’s duties as a taxation officer.

Note 1:    A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

Note 2:    An example of a duty mentioned in paragraph (b) is the duty to make available information under sections 3C and 3E.

(2)    Without limiting subsection (1), records or disclosures made in performing duties as a *taxation officer include those mentioned in the following table:

37    Strictly speaking, s 355-50 contains a single exception, namely, disclosure by taxation officers in the performance of their duties as taxation officers. The Items in the subs(2) table are in the nature of examples of disclosures which will be in the performance of a taxation officer’s duties. However, some of the parties’ submissions treated the Items in subs(2) as though they are separate exceptions, and it is convenient to do likewise in these reasons.

38    Sections 3C and 3E of the TA Act (mentioned in Note 2 to s 355-50(1)), by which the Commissioner is obliged to disclose protected information of a specific kind concerning particular taxpayers, have no application presently.

39    Although s 355-50 permits the disclosures to which it refers, it does not compel them to be made. The circumstances in which a taxation officer may be compelled to make a disclosure to a court or tribunal are circumscribed by s 355-75, which provides:

355-75 Limits on disclosure to courts and tribunals

An entity who is or was a *taxation officer is not to be required to disclose to a court or tribunal *protected information that was acquired by the entity as a taxation officer except where it is necessary to do so for the purpose of carrying into effect the provisions of:

    (a)    a *taxation law; or

  (b)    the Foreign Acquisitions and Takeovers Act 1975, if the entity acquired the information because of a request under subsection 138(4) of that Act.

Note:    See also section 8ZK of this Act (about protection of witnesses).

(Emphasis added)

40    Thus, a taxation officer is permitted to disclose protected information in circumstances in which one or other of the Div 355-B exceptions applies, but cannot be compelled to disclose the same information to a court or tribunal: Federal Commissioner of Taxation v Tamarama Fresh Juices Australia Pty Ltd [2017] FCAFC 154; (2017) 252 FCR 471 at [23]. That is because a disclosure may be within one or more of the listed exceptions without it being necessary to carry into effect the provision of a taxation law.

The decision of the Second Commissioner

41    On 1 November 2018, the Second Commissioner declined Clayton Utz’s request for access to the protected information. He provided a statement of reasons disclosing the basis for his decision. For the purposes of this judgment, those reasons may be summarised as follows:

(a)    the ATO has control over a considerable number of documents containing protected information relating to the affairs of Mr Gould, his clients and his associated entities. These documents include affidavits and exhibits from a range of legal proceedings, material obtained by ATO officers in the course of review and audit investigation, and correspondence received in the course of managing disputes between Mr Gould and the ATO;

(b)    it is likely that a substantial proportion of the documents held by the ATO will contain information that will or may be of assistance to Mr Jordan’s advisors in defending the Defamation Proceedings;

(c)    disclosure by a taxation officer to Clayton Utz and to the Federal Court of the protected information concerning Mr Gould would fall within each of the exceptions in s 355-50(1) (“… in performing the entity’s duties as a taxation officer”), in Item 1 in the table in s 355-50(2) (“for the purpose of administering any taxation law”), and within Item 3 in s 355-50(2) (“for the purpose of … civil proceedings … that are related to a taxation law”);

(d)    there is a residual discretion as to whether to grant the access and, subject to one matter, that disclosure is warranted in this case;

(e)    despite these conclusions, the matter is not free from doubt. Those doubts made it appropriate to decline the grant of access until a “judicial determination” regarding whether the disclosures are within a permitted exception has been obtained.

42    The reasons of the Second Commissioner also indicate that, subject to resolution of the doubts about whether the disclosure is permitted by s 355-50, he proposes to issue a direction to a taxation officer to provide the protected information sought by Mr Jordan. Understandably, the Second Commissioner does not wish the taxation officer to whom the direction is given to be in the position of having to decide whether compliance with the direction will be lawful.

Mr Jordan’s contentions

43    Mr Jordan accepted that much of the information held by the ATO concerning Mr Gould is “protected information” as defined in s 355-30(1). However, it seems that some of the information may be publicly available and so therefore within the s 355-45 exception.

44    Mr Jordan contended that the disclosure by a taxation officer to him and to the Court of the protected information concerning Mr Gould would be within the three s 355-50 exceptions to which the Second Commissioner had referred. First, the disclosure would be made in the performance of the taxation officer’s duties as a taxation officer (s 355-50(1)(b)). Secondly, the disclosure would be to an entity and the Court “for the purpose of administering any taxation law” (s 355-50(2) Item 1). Thirdly, the disclosure would be to an entity and the Court for the purpose of civil proceedings that are related to a taxation law (s 355-50(2) Item 3).

45    There was some overlap between the submissions made with respect to the first two of these contentions.

The performance of duties exception – s 355-50(1)

46    In contending that the disclosure to him, to his legal representatives and to the Court for the purposes of the Defamation Proceedings would be in the performance of the taxation officer’s duties as a taxation officer for the purposes of s 355-50(1), Mr Jordan submitted:

(a)    the Commissioner’s role extends not just to the assessment and collection of taxation but to the administration of taxation laws generally. It is an incident of these roles that he or she make public statements, including speeches, defending and supporting the integrity and efficacy of the taxation laws and promoting their efficient and effective administration;

(b)    the Commissioner’s ability to discharge his or her role by making public statements and speeches will be inhibited (“suffer a chilling effect”) if he or she cannot make use of protected information in defending claims which are made against him or her arising out of the public statements or speeches;

(c)    in these circumstances it can be seen to be properly part of a taxation officer’s duties to disclose to Commissioners information by which they may defend themselves in proceedings, including defamation proceedings, brought in respect of statements they make in discharging their roles. Counsel for Mr Jordan submitted in this respect:

[T]he disclosure of the Materials by a taxation officer to the Court and the Commissioner’s legal representatives for the purposes of the Defamation Proceedings would have the effect of encouraging the Commissioner himself, through public engagements, to promote the transparency, accountability and integrity of the administration of the taxation laws.

47    Counsel also advanced an alternative rationale: that the duties of a taxation officer (whether the Second Commissioner or otherwise) include “the promotion and transparency of the administration of the taxation laws, in order to maintain public confidence in that administration”. Counsel submitted that the discharge of that duty encompassed actions which were consistent with, and facilitated, “the Commissioner’s performance of his functions as a taxation officer”. However, counsel did not point to any matter which would indicate that individual taxation officers do have duties of the kind postulated in this alternative submission and I took it ultimately not to have been pursued. It need not be mentioned further.

48    As noted, the Second Commissioner contemplates, subject to the Court’s decision in the present proceedings, giving a direction to a taxation officer to make the disclosure sought by Clayton Utz. However, neither the evidence nor the submissions in the hearing identified a particular taxation officer, or the duties of such an officer. Instead, the submissions were made by reference to the position of taxation officers generally.

49    Part II of the TA Act provides that there shall be a Commissioner of Taxation and three Second Commissioners of Taxation. Each of these persons is appointed by the Governor-General. By s 6D of the TA Act, a Second Commissioner has, subject to certain exceptions and qualifications, all the powers, and may perform all the functions, of the Commissioner under a taxation law.

50    By s 3A of the TA Act, the Commissioner has “the general administration” of that Act. Sections 8 and 1-7 respectively of the ITAA 1936 and the ITAA 1997 vest the general administration of those Acts in the Commissioner. The general administration of each of these three Acts is not a function which can be performed by a Second Commissioner (s 6D(2)(b)(i)) of the TA Act).

51    Section 7 of the TA Act provides for the appointment of Deputy Commissioners of Taxation. By s 8 of the TA Act, the Commissioner may delegate to a Deputy Commissioner or to any other person all or any of the Commissioner’s powers or functions under a taxation law or under any other law of the Commonwealth or a Territory (other than the power of delegation itself). With the exception of the Commissioner’s delegation to the Second Commissioner of his powers with respect to the request by Clayton Utz for the disclosure of documents concerning Mr Gould, it was not suggested that any other delegation is presently relevant.

52    As noted earlier, the term “taxation officer” is defined to mean the Commissioner, a Second Commissioner, and an individual appointed or engaged under the Public Service Act 1999 (Cth) (the PS Act) and performing duties in the ATO. The expression “Australian Taxation Office” is not a defined term in the TA Act. Nor is it a statutory authority under any Act. In these circumstances, I accept the submission of Mr Kennett SC that, in context, the term “Australian Taxation Office” is to be understood as a reference to the Statutory Agency for the purposes of the PS Act comprising the Commissioner, the Deputy Commissioners, the Second Commissioners and the body of “staff necessary to assist the Commissioner” engaged under the PS Act to whom s 4A of the TA Act refers.

53    An officer receiving the direction from the Second Commissioner may make the disclosure (relevantly) only in the performance of that officer’s duties as a taxation officer. A mere desire by a taxation officer to provide some assistance to a Commissioner, unrelated to the performance of that taxation officer’s duties, would be insufficient.

54    The TA Act does not contain any express provisions identifying the duties of taxation officers (other than the Commissioner). That being so, the duties of taxation officers may be taken to be those allocated to them from time to time by their superiors within the ATO in relation to the administration of the taxation laws.

55    The effect of the provisions to which I referred earlier is that the general administration of the taxation laws is not a function or duty of taxation officers (including a Second Commissioner). That function is vested in the Commissioner. That has the consequence that the functions of taxation officers generally are not co-extensive with those of the Commissioner.

56    The authorities indicate that the phrase “in performing the entity’s duties as a taxation officer” used in s 355-50(1) should be construed broadly. The predecessor provision to s 355-50 was s 16(2) in the ITAA 1936. It precluded the disclosure by taxation officers of information “except in the performance of any duty as an officer”. That expression was considered in Canadian Pacific Tobacco Company Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1. At first instance, Dixon CJ said (at 6) in his reasons on an evidence ruling:

… I think that the words “except in the performance of any duty as an officer” ought to receive a very wide interpretation. The word “duty” there is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word “function”. 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.

Emphasis added)

57    On the appeal against the final judgment of Dixon CJ, McTiernan J expressed explicit agreement with the construction which Dixon CJ gave to s 16(2). Each of Williams J and Kitto J expressed agreement generally with the reasons of McTiernan J.

58    The decision in Canadian Pacific Tobacco indicates that the disclosure of information by a taxation officer in an affidavit for use in proceedings for “the vindication of the revenue” or “the ultimate obtaining of revenue” is part of the “performance of [a] duty as an officer” by the person concerned.

59    The construction of s 16(2) in Canadian Pacific Tobacco was applied by this Court in Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 479; (1986) 12 FCR 257 at 261. The Full Court (Bowen CJ, Lockhart and Sheppard JJ) then continued (at 262):

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 referrable 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 s 39B of the Judiciary Act 1903 (Cth) and applications for review of decisions of the Commissioner under the Judicial Review Act with which this case is concerned.

(Emphasis added)

60    Likewise, in Consolidated Press Holding v Commissioner of Taxation, Lockhart J said, at 353:

The Commissioner’s functions include, not only collecting tax and recovering unpaid amounts, but resolving disputes for taxpayers, providing advice to taxpayers concerning their rights and obligations under the taxation laws of the Commonwealth, assessing the liability to taxation of taxpayers, auditing the financial affairs of taxpayers to establish their assessable and taxable incomes and deductions, and prosecuting offenders under the taxation laws …

61    In Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124, Gummow J considered (at 136) that the exception in s 16(2) of the ITAA 1936 encompassed the disclosure of information by a taxation officer for the purpose of discharging or satisfying requirements or duties imposed pursuant to procedures existing under statutes other than the ITAA 1936. This meant that information disclosed in reasons which were provided to discharge the obligations imposed by s 13(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) was considered part of the performance of a duty by a taxation officer, and so within the exceptions provided on s 16(2).

62    In Simionato Holdings Pty Ltd v Commissioner of Taxation (1995) 60 FCR 375 at 384, von Doussa J held that the collection and recovery of tax is as much a purpose of the ITAA 1936 as is its assessment, as the effective raising of revenue requires both functions to be fulfilled. Accordingly, disclosure by a taxation officer for the purpose of the vindication of the revenue and the collection of tax owed by a company in liquidation was within the taxation officer’s duties, at 385. That encompassed the disclosure of information to a liquidator for the purpose of maximising the return to creditors from companies in liquidation from whom unpaid tax is due, at 386.

63    There are numerous other authorities in different contexts which indicate that the duties of a taxation officer include aspects of the assessment, as well as the imposition and recovery of taxation. It is not necessary to refer to them all.

64    The different terminology with which s 355-50(1) and s 355-75 are expressed suggests that the duties of a taxation officer are not confined to those actions “necessary … for the purpose of carrying into effect the provisions … of a taxation law”: Tamarama Fresh Juices at [23]. Thus, in Donnelly v Davison [2000] FCA 1396; (2000) 105 FCR 1, Branson J said, at [11]:

The authorities appear to me to reflect a view that the duties of a taxation officer within the meaning of s 16(2) of the [ITAA 1936] may extend beyond that which “it is necessary to do … for the purpose of carrying into effect the provisions of [the ITAA 1936]” within the meaning of s 16(3) …

(Emphasis added)

65    However, despite the breadth of the matters which may be incidental to the functions and proper actions of taxation officers for the purpose of s 355-50(1), I do not consider that it can reasonably be held that disclosure of protected information concerning Mr Gould to Mr Jordan and his legal advisors for the purpose of assisting Mr Jordan in his defence of the Defamation Proceedings would be a disclosure in the performance of a taxation officer’s duties.

66    I am willing to accept, for the purposes of this judgment, that the functions of the Commissioner may extend to the promotion of public confidence in the administration of the taxation laws for which he or she is responsible. I am also willing to accept that the Commissioner’s promotion of public confidence function may extend to the education of taxpayers, and those advising them, about the practices adopted by the ATO in administering and enforcing the taxation laws, to highlighting the consequences of non-compliance, and to making public statements (including speeches) about those matters.

67    I mention that counsel for Mr Jordan sought to demonstrate these functions of a Commissioner by reference to statements made by Mr Jordan as to his own perception of his role and by reference to reports of speeches he has made. I regard that material as being of limited utility for present purposes. As Mr Kennett SC submitted, Mr Jordan’s personal perception of his role cannot expand the scope of his statutory duties and functions. Those functions are identified, at their broadest, in s 3A of the TA Act and its cognates in other taxation laws which provide that the Commissioner has “the general administration” of that Act. That is a broad grant of power: Precision Pools Pty Ltd v Commissioner of Taxation [1992] FCA 746, (1992) 37 FCR 554 at 566-7; Oswal v Commissioner of Taxation [2015] FCA 1439 at [54]-[63].

68    The power with respect to the general administration of the TA Act and other taxation laws means that it may be properly part of a Commissioner’s role to make public statements concerning the administration of the taxation laws and to engage in various forms of education directed to that end.

69    However, in their public statements, Commissioners are as much bound by Div 355 as any other taxation officer – see s 355-30(2). The scheme established by Div 355 contemplates that, when Commissioners make promotional and educational statements, they should do so without disclosing the protected information of an individual taxpayer (unless one or other of the exceptions for which the Division provides is applicable). Given the stated objects of Division 355 and the strictness of the obligations it imposes for the protection of confidential information, one would not readily adopt a construction of s 355-50(1) which meant that it is open to a Commissioner to disclose protected information concerning a taxpayer when the Commissioner considers that doing so will promote public confidence or will serve to educate taxpayers. A construction to that effect would undermine significantly the Div 355 scheme. One would expect to see clear words to that effect if that was the legislative intention. In this respect, it is noteworthy that neither public education nor the promotion of public confidence in the taxation system is listed as one of the “specific, appropriate purposes” in Division 355.

70    If these circumstances have a “chilling effect” on a Commissioner’s ability to make public statements, that is a consequence of the statutory scheme. However, in my view, the asserted “chilling effect” (which seemed to be an essential link in the submissions advanced by Mr Jordan) is of doubtful validity. Commissioners have long been able to make public statements of the kind to which Mr Jordan refers without (apparently) being inhibited by the inability to disclose protected information.

71    If, as I consider to be the case, Commissioners may not (unless one of the other exceptions is applicable) use the protected information of a taxpayer for the purposes of public education or public promotion, the notion that it may nevertheless be an incident of a taxation officer’s duties to provide protected information to the Commissioner for that purpose becomes improbable. It is then but a short step to conclude that the provision of protected information to a Commissioner for use by the Commissioner in defending himself or herself in litigation arising from the making of public statements of that character is not a duty or function of a taxation officer.

72    The recognition that it may be appropriate for the Commissioner to promote public confidence and to educate taxpayers says little about the functions and proper actions of individual taxation officers. Counsel for Mr Jordan did not point to any express duty or function of a taxation officer (whether the Second Commissioner or otherwise) which would authorise the disclosure sought presently. Nor did counsel submit that the disclosure was reasonably referable to the activities involved in the assessment, imposition or collection of taxation, which may be expected to be typical activities of taxation officers. Instead, as already indicated, counsel’s submission was that it was an incident of the proper actions of taxation officers to provide assistance which may limit a Commissioners’ exposure to liability for defamation arising from their public statements in the discharge of their role as Commissioner described earlier. As already indicated, counsel went so far as to suggest that it was a function of taxation officers generally to encourage Commissioners, by their public engagements, to promote the transparency, accountability and integrity of the taxation laws.

73    Counsel did not identify any feature of the TA Act which suggests that taxation officers do have such a function and it is far from self-evident that they do. In my opinion, the relationship between the more conventional functions and duties of taxation officers (the implementation of the taxation laws) and actions directed to the reduction of the Commissioner’s liability for defamation (even when that liability is said to come from public statements made as Commissioner) is too tenuous to be regarded as an incident of those functions.

74    I reach the same conclusion with respect to the related submission that, if the Commissioner cannot be provided with protected information, taxpayers involved in disputes with the ATO will have an incentive to pursue collateral litigation for perceived strategic advantage. The presence of such an incentive, so it was submitted, is detrimental to the administration of the taxation laws, with the consequence that disclosure avoiding the detriment should be regarded as incidental to the efficacious administration of the taxation laws.

75    This submission was advanced as a matter of generality. It was not suggested that Mr Gould has commenced the Defamation Proceedings in the pursuit of “collateral litigation against the Commissioner for perceived strategic advantage”. Unless the collateral litigation be of a kind which courts do not tolerate, such as an abuse of process, it is not easy to see why courts should take a dim view of litigation of this kind. It is the policy of the law that parties may have resort to the Courts for the vindication of their rights.

76    Further, and in any event, I consider that in the present context considerations concerning possible collateral litigation are so nebulous as not to be capable of prevailing against the strict obligations of confidentiality imposed by Div 355.

77    For these reasons, I do not accept that the disclosure of the protected information concerning Mr Gould in the present circumstance would be authorised by s 355-50(1).

The purpose of administering any taxation law – s 355-50(2) Item 1

78    As already indicated, there was considerable overlap between the submissions concerning this exception and those concerning the first.

79    Counsel submitted that, by reason of the following considerations, Mr Jordan’s speech to the National Press Club had been for the purpose of “administering a taxation law” within the meaning of Item 1 in s 355-50(2):

(a)    the subject of Mr Jordan’s speech, which he had made in his capacity as Commissioner of Taxation, was the health and integrity of Australia’s taxation system, and public confidence in its administration;

(b)    Mr Jordan deposed that he had referred to the Hua Wang Bank litigation in the speech as he considered it to be a significant example of the litigation in which it was necessary for the ATO to engage “in order to send a strong message to the taxpaying community that there will be adverse consequences for those taxpayers who engage in unlawful activities” and because he considered it “an important part of [his] role to provide public commentary on successful litigation with which the ATO has been involved, as well as public commentary highlighting and engaging with the attitude of the Courts (expressed in judgments) to conduct of taxpayers which is in breach of Australia’s taxation laws”;

(c)    unless protected information can be provided to the Commissioner in circumstances like the present, there will be an incentive for taxpayers involved in disputes with the ATO to pursue collateral litigation against the Commissioner for perceived strategic advantage;

(d)    the existence of such an incentive is detrimental to the administration of the taxation laws;

(e)    the disclosure will avoid that detrimental effect; and

(f)    the disclosure may therefore be regarded as made for the purpose of more efficient administration of taxation laws.

80    Counsel then submitted that, as Mr Jordan’s speech to the National Press Club was for the purpose of administering taxation laws, so also was his defence of the Defamation Proceedings which arose from that speech. Counsel summarised this submission as follows:

… If the Commissioner and his legal representatives in the Defamation Proceedings could not access the Materials (necessary to defend the Defamation Proceedings), there is a real risk this would provide an incentive for taxpayers involved in taxation disputes (such as Mr Gould) to pursue collateral litigation against the Commissioner for a perceived strategic advantage. As is recorded in the Second Commissioner’s Decision at [51], “any incentive of that kind would itself be detrimental to the administration of the taxation laws” … Put another way, the disclosure of the Materials by a taxation officer to the Court and the Commissioner’s legal representatives in the Defamation Proceedings avoids such a detrimental effect and therefore the disclosure itself is for the purpose of effectively administering Australia’s taxation laws. Viewed in that light, the disclosure falls within the exception described in item 1 in the table in s 355-50(2) of Schedule 1 to the Act.

                                 (Citation omitted)

81    Counsel also repeated the “chilling effect” submission.

82    The expression “for the purpose of administering any taxation law” is a composite expression and should be construed as such. Nevertheless it is helpful to have particular regard to two of its elements, namely “any taxation law” and the “administering” of such a law.

83    The first of these terms is pertinent because Mr Jordan’s impugned remarks were not directed to any particular taxation law.

84    Counsel for Mr Jordan submitted that it is not necessary for a taxation officer to make the disclosure for the purpose of administering a particular taxation law. He emphasised the word “any”, submitting that it is sufficient that the disclosure be made for the purpose of administering a taxation law, without any such law being identified. Counsel sought to support the submission by contrasting the term “any taxation law” used in s 355-50(2) Item 1 with the term “a taxation law” used in s 355-75 and by reference to Tamarama Fresh Juices at [20], [23]-[24], [25] and [45]-[47].

85    I do not consider that this construction of the Item 1 exception is appropriate. Rather, Item 1 should be construed in a manner in keeping with the objects of the Division at s 355-10, which contemplate taxation officers making disclosures for “specific, appropriate purposes”. To my mind, this suggests the purpose of administering a specific or particular taxation law. The authorisation for the disclosure to be made to “any … court or tribunal” supports this construction, as it is to be expected that the disclosure to a court or tribunal will concern a particular taxation law, rather than taxation laws generally.

86    The purpose of “administering” a taxation law also seems to connote the carrying into effect of a particular law. This is consistent with the purpose being both “specific” and “appropriate”. Taxation officers intending to make a disclosure in reliance on the Item 1 exception can be expected to have in mind the carrying into effect of a particular law. The word “any”, like the indefinite article “a” used in s 355-50(2) Item 3 and s 355-75, indicates that the taxation officer may have that purpose in respect of any taxation law as defined, but not with respect to the administration of taxation laws generally.

87    There is another difficulty with the submission advanced by Mr Jordan. It would not be appropriate to conclude that everything which Commissioners do in the general administration of a taxation law involves the “administering” of that law, for the purposes of the Item 1 exception. The fact that Item 1 authorises disclosures by taxation officers who do not have the general administration of any taxation law suggests that the word “administering” in that Item is used with a narrower conception. A more obvious meaning is “carrying into effect” or “implementing” a taxation law.

88    Item 1 seems to connote a close relationship between the purpose of the disclosure and the administration of the taxation laws. Usually that relationship will be found in actions directed to the assessment, imposition and collection of taxation or matters incidental thereto.

89    If the clause “the purpose of administering any taxation law” has the broad meaning for which Mr Jordan contends, so that it encompasses matters incidental to, or arising from, a Commissioner’s public speeches directed to public education or public confidence in the taxation system, it would have unlikely consequences. It would, for example, seem that a Commissioner could, in a public statement or speech directed to the better administration of the taxation laws, disclose protected information concerning an individual taxpayer. Likewise, a taxation officer could provide the protected information to the Commissioner to be used in that way. Such consequences seem discordant with the statutory scheme and suggest, by themselves, that the clause “the purpose of administering any taxation law” has a more confined meaning. In my opinion, it is more naturally understood as referring to purposes directed to the assessment, imposition and recovery of taxation.

90    I conclude that it cannot reasonably be held in the present circumstances that the provision to Mr Jordan of the protected information concerning Mr Gould would be for the purposes of administering a taxation law, and so authorised by s 355-50(2) Item 1.

The purpose of civil proceedings that are related to a taxation law– s 355-50(2) Item 3

91    In relation to the claim that the Defamation Proceedings are civil proceedings “related to a taxation law” for the purposes of Item 3 in the table in s 355-50(2), counsel for Mr Jordan submitted:

(a)    the expression “related to” is an expression of broad import and may require “no more than a relationship, whether direct or indirect, between two subject matters”, citing O’Grady v The Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356 at 376; and

(b)    although the relationship may be indirect, the Defamation Proceedings are related to taxation laws, in particular, the taxation laws which Mr Gould and his related entities were found in the Hua Wang Bank litigation to have contravened. A defence of justification, for example, will involve considerations of whether Mr Gould and the entities controlled by him have breached particular taxation laws.

92    Counsel submitted that the Item 3 exception is sufficiently wide to encompass a defence by a Commissioner against defamation proceedings arising from public statements of the Commissioner directed to enhancing public confidence in the administration of the taxation laws for which the Commissioner is responsible. Likewise, the Second Commissioner contended that the Defamation Proceedings relate to taxation laws because they would (or are at least likely to) involve the defence, and indeed vindication, of public statements made by Mr Jordan directed to the maintenance of public confidence in the taxation laws.

93    Neither the Originating Application nor the Statement of Claim in the Defamation Proceedings refer expressly to a taxation law. For the reasons given earlier, Mr Jordan has not yet filed a defence in the Defamation Proceedings. Counsel for Mr Jordan nevertheless referred to the prospect of the defence containing references to at least some of the taxation laws.

94    Despite express reference to one or more taxation laws being in prospect only, no counsel suggested that it would be premature for the Court to determine now whether the Item 3 exception is applicable.

95    Item 3 in s 355-50(2) involves two limbs: proceedings of a particular character, namely proceedings “related to” a taxation law, and disclosure by a taxation officer for the purpose of those proceedings. For present purposes, it is not necessary to consider whether the proceeding to which the exception refers must be already on foot.

96    The closeness of the required connection between two matters denoted by the expression “related to” and its cognates varies according to the context in which the expression appears. Thus, in Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 at [25], French CJ and Hayne J said:

It may readily be accepted that “in relation to” is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that “the subject matter of the enquiry, the legislative history, and the facts of the case” are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply “in relation to” rights.

(Citations omitted)

97    Generally speaking however, the Courts have accepted that the phrase is capable of encompassing connections between two matters of a reasonably broad kind.

98    In the context of Div 355, civil proceedings with a direct connection to “the interests of the revenue”, using the expression of Mr Kennett SC, would seem to be proceedings of the character to which Item 3 refers. But it does not follow that the expression refers only to proceedings of that kind. Had Parliament intended that Item 3 should encompass only proceedings of that character, it would have been easy for it to have said so. Instead, it has used an expression which is well recognised as connoting a relationship of a broad kind.

99    Some assistance as to the nature of the connection connoted by the term “related to” can be obtained from ss 355-70 and 355-75. Section 355-70 provides that the s 355-25 prohibition does not apply to disclosures for the purpose of certain forms of law enforcement. These include disclosures to courts and tribunals for the purpose of investigation of a serious offence; for the enforcement of a law, the contravention of which is a serious offence; for the making or possible making of a proceeds of crime order; or for supporting or enforcing a proceeds of crime order. The express statutory provision for proceedings of these kinds suggests that the terminology used in Item 3 of s 355-50(2) is intended to have a different, and more general reach.

100    As already noted, s 355-75 provides, in effect, that a court or tribunal cannot compel disclosure by a taxation officer of protected information unless it is necessary for the purposes (relevantly) of “carrying into effect the provisions of … a taxation law”. It is to be expected that proceedings of this kind will, at least generally, concern the assessment, imposition or recovery of taxation. It is pertinent, in my opinion, that the Parliament did not use the same expression when referring to proceedings in Item 3 in s 355-50(2). Again, it suggests that the Item 3 exception is intended to have a broader reach.

101    In my view, the terminology in s 355-70 and s 355-75 points against s 355-50(2) Item 3 being concerned only with the vindication of a taxation law or with proceedings which have a direct connection with such vindication.

102    It is the fact that Mr Gould’s allegations in the Defamation Proceedings concern statements made by Mr Jordan, and did not concern assessments made by the ATO of the taxation liabilities of Mr Gould or of the companies which he controls or manages. That provides some “separation” between the proceedings and the taxation laws. However, it is reasonable to suppose at this stage that there is a real prospect that the context in which the statements were made will be important in understanding what they conveyed to the ordinary and reasonable listener. That being so, there is, at the least, a reasonable prospect that Mr Jordan may wish to refer to the Hua Wang bank litigation and what was publicly known concerning that litigation at the time of his speech to the National Press Club. Therein will lie a relationship with the taxation laws. I do not consider that such a relationship should, in the present circumstances, be regarded as so tenuous or indirect as not to be encompassed by Item 3 in s 355-50(2).

103    I also accept that Mr Gould’s plea that the impugned statements of Mr Jordan conveyed the defamatory meaning that he had engaged in the “worst kind of tax fraud” makes it very likely that the Court will be asked in the Defamation Proceedings to consider matters bearing on the compliance with taxation laws by Mr Gould and the companies which he controls or manages. In that way, it can be concluded that the Defamation Proceedings do relate to at least some taxation laws. Further, it seems that the relationship between the two subject matters is likely to be reasonably direct.

104    It was common ground that the taxation laws to which the Defamation Proceedings relate are taxation laws for which Mr Jordan is responsible in his capacity as Commissioner. The context in which Mr Jordan made the impugned statements and his position of Commissioner of Taxation makes an inference to that effect almost inevitable.

105    Accordingly, I consider that a disclosure of the protected information relating to the affairs of Mr Gould in the circumstances proposed by the Second Commissioner would be within s 355-50(2) Item 3 of the TA Act.

Conclusion

106    There was no submission at the hearing that the making of a declaration of the kind sought by the Second Commissioner should be refused on discretionary grounds. In particular, no counsel suggested that the present litigation involves issues which are hypothetical.

107    Accordingly, for the reasons given above, there will be a declaration that, to the extent the documents in control of the ATO relating to the affairs of Mr Gould (the Documents) contain protected information as defined in s 355-30(1) of Schedule 1 to the TA Act, a disclosure of the Documents by an entity who is a taxation officer to:

(a)    Mr Jordan and his legal representatives in the Defamation Proceedings; and

(b)    Mr Gould and his legal representatives in the Defamation Proceedings; and/or

(c)    this Court,

for the purpose of their use in the Defamation Proceedings will be in the performance of the taxation officer’s duties as a taxation officer by reason that the disclosure will be for the purpose of civil proceedings related to a taxation law, within the meaning of Item 3 of s 355-50(2) of the TA Act.

108    The nature and extent of the protected information to be disclosed will be a matter for the Second Commissioner and any taxation officer directed to make the disclosure.

Associate:

Dated:    27 September 2019