FEDERAL COURT OF AUSTRALIA

Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073

ORDERS

THE COURT ORDERS THAT:

1.    In proceeding QUD 547 of 2017:

(a)    the application is dismissed;

(b)    if the costs of the application are not agreed between the parties and the Court informed by 4.00 pm AEST on 18 December 2019, the proceeding be listed for directions as to costs at 9.30 am on 20 December 2019.

2.    In proceeding WAD 73 of 2018:

(a)    the application is dismissed;

(b)    if the costs of the application are not agreed between the parties and the Court informed by 4.00 pm AEST on 18 December 2019, the proceeding be listed for directions as to costs at 9.30 am on 20 December 2019.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    In separate proceedings the respective applicants, Fastbet Investments Pty Ltd (Fastbet) and Holmes Road Pty Ltd (Holmes Road), each seek relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) or s 39B of the Judiciary Act 1903 (Cth) in respect of decisions by the Deputy Commissioner of Taxation of the Commonwealth (the Commissioner) to issue notices to them under s 255-100 of Schedule 1 of the Taxation Administration Act 1953 (Cth) (the TAA). Each of those notices required the recipient company to give security to the Commissioner for the due payment of a “future tax-related liability”.

2    Each applicant company is controlled by Ms Tina Bazzo, who is the sole director of each, and whose personal conduct and conduct in the control of other corporations formed the basis of the Commissioner’s decision to issue the notices. Each of the originating applications relies on substantially the same grounds, being, predominantly, that the Commissioner failed to take into account certain alleged relevant considerations when exercising the discretion to issue the notices. A constitutional ground is also advanced, although the applicants acknowledge that, in respect of this issue, this Court is bound by the decision in Keris Pty Ltd v Deputy Commissioner of Taxation (2017) 253 FCR 233 (Keris), where that same ground was rejected. In Fastbet’s application, relief is also claimed for the return of money which has been received by the Commissioner from time to time in return for the partial release of the security granted by Fastbet.

3    At the request of the parties the matters were heard together. Whilst that may have seemed an acceptable course at the time, it has ultimately resulted in some ambiguity in the evidence. The parties focused attention on the issues surrounding the notice given to Fastbet and seemed to accept that the relevant evidence applied to the circumstances of Holmes Road. As it transpired, that assumption was possibly too readily accepted. The issue in each matter turned on the decision-making process of the Commissioner in respect of each applicant and those processes occurred on different occasions in relation to slightly different circumstances.

4    As the following reasons disclose, in each matter the applicant has failed to establish the existence of an error which has invalidated the decision of the Commissioner to issue the notice. In summary, the applications fail for the following reasons:

(a)    The applications were founded upon the erroneous basis that the requirement of the Commissioner to have regard to “all relevant circumstances” related to the exercise of his discretion to issue a notice under s 255-100. In fact, that obligation related to the antecedent step of the Commissioner reaching a reasonable belief that requiring security from the applicants was appropriate.

(b)    That error permeated each application and the submissions made in relation to them. The applicants’ focus was on attempting to establish what were “relevant considerations” for the exercise of power rather than what were the factors or circumstances to which the Commissioner was to have regard in forming a reasonable belief about the appropriateness of requiring security.

(c)    In any event, the matters which were said by the applicants to be “relevant considerations” were not matters which, by implication from the subject-matter, scope and purpose of the Act conferring power, the Commissioner was required to take into account in the exercise of his discretion or in the formation of the required state of mind.

(d)    Even if the Commissioner was required to have regard to the matters identified, as a matter of fact, he largely did so when determining to issue the notices.

(e)    Moreover, most of the matters advanced by the applicants were not essential, significant or important to the state of mind which the Commissioner was required to form under s 255-100(1)(b), in the sense that the failure to have regard to them would not evidence a failure to perform the statutory obligation. Any identified matter to which the Commissioner did not have regard fell within this category.

(f)    The Commissioner is entitled to rely upon and adopt the calculations and assessments performed by his officers in the course of their employment and, for the purposes of reaching the state of mind required by s 255-100, he is not required to undertake them himself nor, to the extent to which he might be able, review them.

(g)    Even if it be that the Commissioner did not have regard to one of the myriad matters identified by the applicants (in paragraph 3 of the respective originating applications), the failure to do so was not “material” and the omission did not give rise to any vitiating error in the formation of the required state of mind or the subsequent exercise of discretion. Neither party addressed the question of the materiality of any failure to have regard to any of the identified circumstances.

Background

Fastbet

5    On 19 September 2017, Fastbet received a notice pursuant to s 255-105 of the TAA requiring it to give security to the Commissioner of Taxation for the payment of certain future tax-related liabilities. Such notices are commonly referred to as Security Bond Demands and will be referred to in these reasons by the acronym “SBD”. The one issued to Fastbet stated that the Commissioner had formed the belief that it was appropriate to require the provision of security by that company having regard to the particular circumstances, which were set out as follows:

a)    Information in the possession of the Commissioner indicates that the Company holds substantial property assets and is engaged in property development which is intended to result in the subdivision and sale of approximately 570 blocks of land.

b)    ATO auditors estimate that the Company’s property development activity will give rise to GST and Income Tax liabilities of at least $6,892,222.

  c)     Tina Bazzo is the sole director of the Company.

d)    Tina Bazzo has been non-compliant with regard to her personal taxation obligations.

e)    Tina Bazzo presently owes more than $13,869,620 in personal taxation liabilities.

  f)     Tina Bazzo is being prosecuted in respect of two alleged taxation offences.

g)    Numerous companies have been non-compliant with regard to their taxation obligations while under the control of Tina Bazzo, and this has resulted in those companies failing to pay tens of millions of dollars to the Commissioner.

h)    Gundaroo Investments Pty Ltd incurred more than $3 million of unpaid taxation liabilities while Tina Bazzo was director.

i)    Ankfar Pty Ltd (formerly Anketell Farms Pty Ltd) incurred more than $1.6 million of unpaid taxation liabilities while Tina Bazzo was director.

j)    Parliament Place Pty Ltd as trustee for the Royal Trust incurred more than $1 million of unpaid taxation liabilities while Tina Bazzo was director.

k)    Tina Bazzo is the sole director of GH1 Pty Ltd, formerly Gucce Holdings Pty Ltd, (“GH1”) which incurred more than $73 million of unpaid taxation liabilities during her directorship.

l)    In October 2015, GH1 sold property to a third party, but allowed approximately $3.35m of the proceeds of sale to be paid to Parkdale Asset Pty Ltd, another company controlled by Tina Bazzo.

m)     Paramount View Pty Ltd as trustee for the BG Unit Trust incurred more than $580,000 of unpaid taxation liabilities while Tina Bazzo was a director.

n)    In a report to creditors dated 31 May 2013, the administrator of Paramount View Pty Ltd noted that Tina Bazzo’s granting of a fixed and floating charge in favour of her related company, GH1, constituted a breach of her director’s duties under sections 180-182 of the Corporations Act 2001. The administrator also conveyed his belief that there were grounds for bringing an Insolvent trading action against Tina Bazzo.

o)    GH1 was placed into voluntary administration on 5 April 2017. As at the commencement of GH1’s administration, ASIC records indicated that GH1 owned 85% of the shares in the Company. On 19 April 2017, Tina Bazzo lodged a Change to Company Details form with ASIC, in which she said that the shares owned by GH1 had been transferred to another company controlled by her, GHT(WA) Pty Ltd (ACN 167 091 269) (“GHT(WA)”), more than three years earlier, on 6 March 2014.

p)    As at the commencement of GH1's administration, ASIC records also indicated that GH1 owned shares in Byford Land Company Pty Ltd, Ocean Keys (WA) Pty Ltd, Flynn Drive Holdings Pty Ltd, Moonspark Nominees Pty Ltd, Platinum Sky Pty Ltd, 119 Nicholson Road Pty Ltd, Abernethy Land Company Pty Ltd, 115 Cambridge Street Pty Ltd, 220 St George’s Terrace Pty Ltd, Gold Class Nominees Pty Ltd, 89 Burswood Road Pty Ltd, 1110 Hay Pty Ltd, George 218 Pty Ltd and Prada Pty Ltd.

q)    On 29 April 2017 and 30 April 2017, following the commencement of GH1’s administration, ASIC was notified that, on 31 March 2017, all of the shareholdings identified in the above paragraph were transferred to a company controlled by Tina Bazzo, GHT(WA), except for the shares in Prada Pty Ltd, which were transferred to Tina Bazzo.

r)    On 3 April 2017 (two days before the commencement of the GH1 administration), Landgate records indicated that the Company lodged a Transfer of Land document which purported to show that a year earlier, on 4 April 2016, the Company had transferred a property at Lot 101 on Deposited Plan 20025, being certificate of title volume 2014, folio 652, to GHT(WA) Pty Ltd.

s)    GH1 was placed into liquidation on 22 May 2017 and the Commissioner has lodged a Proof of Debt in the amount of $73,669,171.09 for unpaid taxation liabilities.

t)    In addition to the above, Tina Bazzo is a director of more than a dozen other companies which, collectively, have more than twenty outstanding income tax returns or Business Activity Statements.

…

The Commissioner believes that this requirement to give security is appropriate because there is a risk that the Company will not pay the $6,895,222 of tax-related liabilities which it is expected to incur from its property development activity.

That perceived risk arises because the director of the Company, Tina Bazzo, has demonstrated a disregard for some important tax obligations incurred by companies under her control and by her in her personal capacity, including the obligation to lodge returns on time and the obligation to pay taxation liabilities due to the Commissioner of Taxation.

6    The SBD required Fastbet to provide security to the Commissioner in the amount of $6.5 million, which was said to be in respect of a $6,895,222 tax-related liability which the Commissioner anticipated the company would incur as a result of its property development activities. It required Fastbet to provide security in the form of a signed mortgage capable of registration at the Land Information Authority (Landgate) pursuant to the Transfer of Land Act 1893 (WA) in respect of 18 described parcels of land. It is to be noted that, by the time of the issue of the SBD, Fastbet had sold two of those parcels.

7    On 23 October 2017, and in a response to a request to do so, the Commissioner provided a statement of reasons pursuant to s 13(1) of the AD(JR) Act. In them, the delegate of the Commissioner made findings in support of the matters which were set out in the SBD. Relevantly, the delegate identified Fastbet’s involvement in an enterprise of development of land holdings with a view to the sale of subdivided portions. Findings were also made of Ms Bazzo’s delinquency in relation to her personal tax affairs as well as those of companies of which she was a director. It was identified that, as at 3 September 2017, she owed $13.8 million in personal taxation liabilities, she was being prosecuted in respect of two alleged taxation offences, and had been a director of multiple companies which had entered into insolvency with unpaid taxation liabilities which were incurred or accrued during the period of her directorship. Those unpaid liabilities were identified as being in the vicinity of approximately $80 million. Findings were also made as to her dealings with the assets of various companies which had the effect of removing those assets from those companies’ administrations. Further, the delegate made a finding that there were approximately 16 companies, of which Ms Bazzo was the then current director, which had outstanding taxation obligations.

8    In reaching the conclusion that it was appropriate to issue the SBD, the delegate indicated that he relied upon notification from the audit team of the Australian Taxation Office (the ATO) of Fastbet’s anticipated future tax liabilities, which were identified as being approximately $6.8 million. He added that he regarded the audit team’s calculations of likely net future tax liabilities as tending to be reliable, albeit conservative. As to the risk to the revenue, the delegate made the following findings:

In making my decision to issue the Notice, I held the belief that there was a significant risk that Fastbet Investments Pty Ltd would not pay the $6,895,222 of tax-related liabilities which ATO auditors had estimated that Fastbet Investments Pty Ltd would incur from its property development activity.

This belief was based on my consideration of the non-compliant behaviour of Ms Bazzo and more than fifteen companies of which Ms Bazzo currently is (or previously had been) a director, evidence of which was outlined in the submission of Cong Nguyen, dated 19 September 2017.

Based on my belief that there was a significant risk that Fastbet Investments Pty Ltd would fail to pay the anticipated $6,895,222 of tax-related liabilities, I concluded that it was appropriate that I should seek to mitigate that risk by issuing the Notice to require the provision of $6,500,000 of security.

I recognised that if I were to acquire the security in the form of a cash deposit, it might constitute an unreasonable burden on Fastbet Investments Pty Ltd’s cash resources. Accordingly, I concluded that the appropriate form of security I should seek would be a mortgage over Fastbet Investments Pty Ltd's real estate assets.

9    The securities which were required from Fastbet, by way of mortgages over the several parcels of land, were subsequently provided (save in respect of those parcels which were sold).

10    On 16 November 2017, a further SBD was issued by the Commissioner which was in identical terms to that issued on 19 September 2017, save that it required security over six other Fastbet properties. It would appear that mortgages were duly provided by the company.

11    From time to time Fastbet has sold several portions of land. On the completion of each sale, the Commissioner, in return for the payment of certain funds, has released the mortgage over that land. The dates, the properties in respect of which the funds were recovered, and the amounts were as follows:

Date                               Property                                        Amount

13 February 2019        Lot 16, 9 Binfield Street                  $7,409.09

12 March 2018            Lot 158, 8 Galah Way                      $7,408.82

21 March 2018            Lot 153, 3 Groundlark Road             $9,868.18

6 April 2018                Lot 152, 5 Groundlark Road             $9,750.00

9 April 2018                Lot 176, Grandite Fairway                $8,863.64

21 May 2018               Lot 11, 4 Groundlark Road                $7,622.73

6 August 2018             Lot 24, 4 Binfield Street                    $9,750.00

3 September 2018       Lot 103, 91 Grandite Fairway             $9,040.91

25 September 2018     Lot 12, 6 Groundlark Road                 $9,750.00

Total                                                                                       $79,463.37

Holmes Road

12    The SBD issued to Holmes Road was in substantially the same form as that issued to Fastbet. In it the delegate identified that Holmes Road held a real estate asset which it intended to develop by subdivision into 73 blocks, which were then intended to be sold. It was recorded that the auditors estimated the future tax liabilities of Holmes Road at around $1.2 million. It further recorded that the delegate had relied upon substantially the same 18 matters as were referred to in the Fastbet SBD, concerning the taxation delinquencies of Ms Bazzo and her companies, as the justification for it being issued. It indicated that the delegate considered that there was a risk that Holmes Road would not pay the $1.2 million of tax-related liabilities expected to arise from the property development activities when they fell due. The expression of risk was in the same terms as appear in the Fastbet SBD which was, perhaps, not surprising given the commonality of Ms Bazzo’s involvement. The SBD then stated that Holmes Road was required to give the Commissioner security in the amount of $1.2 million in respect of the anticipated future income tax liabilities.

13    Subsequently, the delegate provided reasons for the decision pursuant to s 13(1) of the AD(JR) Act. For present purposes there is no need to set out those reasons. They reflect the same concerns and appreciation of risk as appeared in the reasons in respect of the Fastbet SBD.

The legislation

14    The directly relevant provisions are contained in Part 4-15 of the TAA, which is entitled “Collection and recovery of tax-related liabilities and other amounts”. Section 250-1 states that the Part “deals with the methods by which the Commissioner may collect and recover amounts of taxes and other liabilities.” Section 250-25 identifies the object of the Part in the following manner:

Subdivision 250-B—Object of this Part

250-25 Object

The object of this Part is to ensure that unpaid amounts of *tax-related liabilities and other related amounts are collected or recovered in a timely manner.

15    The intended fulfilment of that objective can be seen from a brief perusal of the facultative provisions and powers granted to the Commissioner in Part 4-15. Apart from the sections presently under consideration, the Part confers an array of powers and privileges to assist the Commissioner in the collection of taxes, including: relieving the Commissioner of the obligation to effect personal service in some cases: s 255-40; the power to recover tax-related liabilities from third parties, liquidators, receivers, and the estates of deceased persons: Div 260; the right to recover from both persons who are jointly liable for a tax-related liability the full amount of the tax from either: Div 265; the ability to estimate the amounts of PAYG withholding amounts not paid to the Commissioner and to recover the same regardless of whether the amount is actually owing or not: Div 268; the right to require directors of companies which do not remit PAYG amounts to pay the withheld amount: Div 269. The Part also contains a variety of offences for non-payment of tax-related liabilities.

16    Unashamedly, Part 4-15 is directed to equipping the Commissioner with the ability and power to recover tax-related liabilities. Its purpose is the protection of the revenue and the facilitation of the collection of taxes. That said, in it, the legislature has taken measures — where it has considered it appropriate — to ameliorate the impact of the collection process on taxpayers. The Commissioner is given power to defer the time for payment of tax: s 255-10; or to allow for payment by instalments: s 255-15; a taxpayer who has received an estimate of unremitted PAYG withholding amounts is able to immediately relieve themselves from the obligation to pay by the giving of a statutory declaration or affidavit where the Commissioner may have proceeded on a misapprehension of the facts: s 268-40; a director who has received a penalty notice is able to relieve themselves of the obligation under it by taking any of the steps in s 269-15. (In respect of the latter two, see further CLK Kitchens & Joinery Pty Ltd v Commissioner of Taxation [2019] FCA 1086.)

17    That general consideration of Part 4-15 demonstrates that the legislature has sought to facilitate the collection of the revenue and, where appropriate, afforded the taxpayer certain protections. In doing that it has struck a balance between ensuring the recovery of taxation and avoiding undue burden on taxpayers.

18    Within that Part, Division 255 is directed to the topic of “General rules about collection and recovery”. Further, Sub-division 255-D deals with the topic of “security deposits”. For the purposes of this matter, the following individual sections are relevant:

255-100 Commissioner may require security deposit

(1)    The Commissioner may require you to give security for the due payment of an existing or future *tax-related liability of yours if:

  (a)     the Commissioner has reason to believe that:

(i)     you are establishing or *carrying on an *enterprise in Australia; and

(ii)    you intend to carry on that enterprise for a limited time only; or

(b)    the Commissioner reasonably believes that the requirement is otherwise appropriate, having regard to all relevant circumstances.

Note: A requirement to give security under this section is not a tax-related liability. As such, the collection and recovery provisions in this Part do not apply to it.

(2)    The Commissioner may require you to give the security:

(a)     by way of a bond or deposit (including by way of payments in instalments); or

(b)    by any other means that the Commissioner reasonably believes is appropriate.

(3)     The Commissioner may require you to give security under this section:

(a)    at any time the Commissioner reasonably believes is appropriate; and

(b)     as often as the Commissioner reasonably believes is appropriate.

Example: The Commissioner may require additional security if he or she reasonably believes that the original security requirement underestimated the amount of the likely tax-related liability.

255-105 Notice of requirement to give security

Commissioner must give notice of requirement to give security

(1)    If the Commissioner requires you to give security under section 255-100, he or she must give you written notice of the requirement.

Content of notice

(2)     The notice must:

(a)    state that you are required to give the security to the Commissioner; and

   (b)     explain why the Commissioner requires the security; and

   (c)    set out the amount of the security; and

(d)     describe the means by which you are required to give the security under subsection 255-100(2); and

    (e)     specify the time by which you are required to give the security; and

 (f)    explain how you may have the Commissioner's decision to require you to give the security reviewed.

(3)    To avoid doubt, a single notice may relate to security for the payment of 2 or more existing or future *tax-related liabilities, but must comply with subsection (2) in relation to each of them.

When notice is given

(4)    Despite section 29 of the Acts Interpretation Act 1901, a notice under subsection (1) is taken to be given at the time the Commissioner leaves or posts it.

Note:    Section 28A of the Acts Interpretation Act 1901 may be relevant to giving a notice under subsection (1).

Miscellaneous

(5)    A failure to comply with this section does not affect the validity of the requirement to give the security under section 255-100.

19    The expression “tax-related liability” is defined by s 255-1 to as:

255-1 Meaning of tax-related liability

(1)     A tax-related liability is a pecuniary liability to the Commonwealth arising directly under a *taxation law (including a liability the amount of which is not yet due and payable).

20    Section 255-110 creates an offence if the Commissioner requires a taxpayer to provide security and it is not provided.

The operation of s 255-100

21    Before turning to the submissions advanced in the present case, it is appropriate to consider the manner in which s 255-100 operates. In the course of the hearing, reference was made to the decision in Keris, which assists in that regard.

Keris Pty Ltd v Deputy Commissioner of Taxation

22    Several companies controlled by Ms Bazzo have engaged in litigation with the Commissioner, on numerous occasions. One is Keris Pty Ltd. It was given an SBD under s 255-100, requiring it to give security in an amount of $350,000 in relation to a future tax-related liability, by way of a mortgage over certain real property. The Commissioner had formed the view that Keris would not pay certain tax-related liabilities in excess of $373,000 when they were incurred. Keris sought to set aside the notice and failed before the primary judge. The Full Court dismissed an appeal and, in doing so, considered the operation of the scheme in Div 255 concerning the giving of SBDs requiring the provision of security. It is appropriate to consider the reasons of the Full Court (Greenwood, McKerracher and Moshinsky JJ) for doing so:

(a)    The Court observed that s 255-100 conferred a discretion upon the Commissioner to require the taxpayer to give security for the due payment of an existing or future tax-related liability if either of the matters in subss (1)(a) or (b) is satisfied: [25].

(b)    An existing tax-related liability is a pecuniary liability, the amount of which is known or quantified even if not then due.

(c)    In relation to a “future tax-related liability”, the Court said at 242 [27]:

A future tax-related liability seems to contemplate a pecuniary liability directly arising under a taxation law, in the future, where the amount of the pecuniary liability is unknown or unquantified at the time of the exercise of the discretionary power because the section, when speaking of “a future *tax-related liability of yours” is forward-looking to events giving rise to a tax-related liability which have not yet occurred.

(d)    The entitlement to require security in relation to forward-looking liabilities is consistent with the Commissioner’s power in s 255-100(3), which permits him to require security at any time he reasonably believes is appropriate and as often as he believes appropriate, as well as his ability to require additional security. The provisions recognise that a future tax-related liability will necessarily be an estimate of the liability: [28].

(e)    The Court emphasised that the security is for the “due payment” of the existing or future tax-related liability, rather than as payment itself of the liability. That is, the section contemplates the eventual performance of the payment obligation: [29].

(f)    An existing tax-related liability is one where, at the time of the exercise of power, a presently existing pecuniary liability to the Commonwealth arises directly under a taxation law, including a liability the amount of which is not yet due and payable. That occurs where the Commissioner has made an assessment or is taken to have made an assessment and a relevant notice of it has been given: [91].

(g)    A future tax-related liability is that state of affairs which exists when, at the time of the exercise of power, future events postulate the possibility of a pecuniary liability to the Commonwealth arising directly, in the future, under a taxation law: [92]. The power to require security for that liability is not conditioned upon facts having occurred upon which the Commissioner could then act to make and notify an objectively correct quantification of the amount of the liability: [93].

(h)    The scope of elements which enliven the power under s 255-100(1)(a) negate the suggestion that the provision is limited to where the Commissioner can isolate, at the time of the exercise of the power, existing taxable facts having occurred which would give rise to a liability which might be assessed.

(i)    The “subject matter” of the conferral of the discretion in s 255-100(1) is a power to require the addressee to give security for the due payment of either an “existing tax-related liability” or a “future tax-related liability”: [98].

(j)    The expression “due payment”, in respect of an existing tax-related liability, means payment, when due, of a sum which the person is legally liable to pay. “The ‘due payment’ of a ‘future tax-related liability’ means, prima facie, the payment, when due, to the Commissioner (for the Commonwealth) of the amount of a pecuniary liability, in the future, arising directly under a taxation law and, since the pecuniary liability so arising will not arise until some time in the future, the time for payment (on a date fixed for payment), will not arise until sometime after the future tax-related liability has arisen”: [101].

(k)    Generally, the Court rejected Keris’ submissions that, before the Commissioner might require security in relation to future tax-related liabilities, there had to be an ascertainable amount of tax.

23    Keris also raised an argument arising under the Constitution similar to that now raised in this Court. The conclusions of the Full Court on this topic are considered below.

The structure of the section

24    The discretionary nature of the power to issue an SBD is a result of the word “may” in the chapeau to s 255-100. When exercised, the power is to require the recipient of the notice to provide security for the due payment of a tax-related liability. The nature of the security which the Commissioner might require an entity to provide is not, itself, specified in the chapeau. In relation to the exercise of the power in subs (1)(b), the security will be that which the Commissioner reasonably believes it is appropriate that the person gives in respect of the tax-related liability. In relation to subs (1)(a), there is no expressly prescribed limit to the type or suitability of the security which might be required, although the requirement that the power be exercised reasonably will confine that which might be required.

25    However, the antecedent step to the exercise of the discretionary power is the satisfaction of either of the jurisdictional facts identified in the sub-sections. In subs (1)(a), the jurisdictional fact is that the Commissioner has “reason to believe” in the establishment or the carrying on of an enterprise by the proposed recipient of the SBD which is intended to be carried on for a limited time. The rationale for the enlivening of the discretion on satisfaction of (1)(a) is obvious given that, where an entity intends to carry on an enterprise for a limited time, there is a risk that the revenue from the enterprise will be disbursed without the resulting taxation obligations being fulfilled, and no on-going business would exist from which tax might be recovered. (Subsection (1)(a) can be seen as the modern form of the power enacted in s 54(5) of Part IV of the Income Tax Assessment Act 1922 (Cth).)

26    The jurisdictional fact in subs (1)(b) is that the Commissioner has a reasonable belief “that the requirement [to provide security] is otherwise appropriate, having regard to all relevant circumstances.” The expression “otherwise appropriate” would appear to mean appropriate in circumstances other than those in (1)(a). Such circumstances are likely to be myriad, and there is no restriction on the nature of type of events which might cause the Commissioner to believe that the provision of security is appropriate. (Subsection (1)(b) can be seen as the modern form of the words later added — by the original enactment of s 213(1) of Part IV of the Income Tax Assessment Act 1936 (Cth) — to the progenitor in the 1922 Act.)

27    The type of security which the Commissioner might require is not limited, save that it is of a type which the Commissioner reasonably believes is appropriate: s 255-100(2).

28    The jurisdictional fact in subs (1)(b), being the formation of a reasonable belief that the requirement of security is appropriate, contains both subjective and objective elements. The Commissioner, or his delegate, must actually have the belief that the provision of security is appropriate, and that belief must be objectively reasonable. It follows that it is irrelevant if, on later examination, some fact or matter of law which the Commissioner reasonably believed to exist was shown not to exist, so long as the belief was reasonable when the decision was made: Ruddock v Taylor (2005) 222 CLR 612, 622-623 [27]-[28].

The formation of the required state of mind

29    For the purposes of establishing the state of mind on which the discretion is conditioned, s 255-100(1)(b) requires the Commissioner to have regard to “all relevant circumstances”. Neither party made any detailed submissions as to how that expression was to be construed in its context. The applicants submitted that it was equivalent to the concept of “relevant considerations” as that expression is referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend). (See, in particular, paragraph 72 of the applicants’ submissions.) That was consistent with their failure to appreciate that the exercise of having regard to the circumstances was directed to the formation of the reasonable belief, and not to the exercise of the discretion. No attempt was made to explain why the Peko-Wallsend test was applicable in these circumstances and no authority was advanced to support it. Counsel for the Commissioner agreed with the applicants’ submission.

30    As a matter of law the applicants’ submission is not correct and must be rejected, despite the applications having been argued by both parties on that basis. As will be seen below, in the formation of the reasonable belief which s 255-100 requires, there are possibly “factors” which the Commissioner is required to consider, and their existence is ascertained by a process akin to the test in Peko-Wallsend for ascertaining the “relevant considerations” which must be considered when exercising a discretionary power. However, the expression “all relevant circumstances” more accurately refers to the facts, materials or evidence in a particular case, and the question of which of those matters the delegate must have regard to and the consequences of not doing so differ from the test derived from Peko-Wallsend.

Section 255-100(1) and the review of a subjective jurisdictional fact

31    An important element in understanding the operation of subs (1)(b) is the identification of the circumstances in which a state of mind purportedly formed for its purpose might be vitiated. In other words, what are the grounds on which a jurisdictional fact, which includes a partly subjective state of mind, can be reviewed?

32    The following discussion concerns a number of grounds which might vitiate a subjective jurisdictional fact and is not limited to the issue of whether the repository of power has effectively considered the correct matters or all of them. The wider discussion is relevant to other parts of the application.

33    A court’s review of whether a jurisdictional fact exists is not, of itself, judicial review in the sense of being review for jurisdictional error. Whilst the absence of a jurisdictional fact may have the consequence that any subsequent purported exercise of the power which is conditioned on the jurisdictional fact is without authority: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 179-180 [57]; the task of assessing whether the jurisdictional fact exists is not confined by the ordinary principles of judicial review. See EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 (EHF17) at [63]; CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 (CAQ17) at [68]-[75]; Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [116]; and Leeming M, Authority to Decide: The Law of Jurisdiction in Australia, The Federation Press, Australia (2012) at 62.

34    In s 255-100(1), the condition on which the discretionary power of the Commissioner to issue an SBD is enlivened is the formation of a state of mind by him as to the existence of either of the matters in subss (1)(a) or (b). In this case, subs (1)(b) requires the Commissioner to have a “reasonable belief” that the requirement that the entity give security “is appropriate, having regard to all the circumstances”. In part, that requires a subjective assessment by the Commissioner of the relevant circumstances. However, despite the statutory process involving an element of subjectivity, whether the requisite state of mind was reached before the power was exercised remains capable of curial examination: CAQ17 at [67]-[74].

35    The principles on which the court acts in the review of the exercise of powers which are conditioned upon the existence of reasonable grounds for a belief in something were recently said to be “not in question”: Prior v Mole (2017) 261 CLR 265 at 270 [4] per Kiefel and Bell JJ. For that proposition, their Honours cited George v Rockett (1990) 170 CLR 104, being a decision on which the applicants relied in this case in some respects. It concerned the issuing of a search warrant which police sought to execute on the offices of the solicitors of Sir Terence Lewis, a former Commissioner of Police in Queensland. The solicitors contested the warrant’s validity, with the central issue being whether the Magistrate had reasonable grounds for suspecting the existence of material in respect of which there were reasonable grounds for believing that material would afford evidence of the commission of an offence. The Court held (at 112):

When a statute prescribes that there must be “reasonable grounds” for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

36    In addition, in reaching that state of mind, the relevant authority cannot rely upon some other person having that state of mind. It must be formed by the repository of power for themselves.

37    More recently, in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 532 [73], Gleeson CJ and Gummow J identified the following approach to the review of the formation of a foundational belief on which the exercise of power is conditioned:

There is another preliminary matter that should be mentioned. It concerns the nature of the decision to be made under s 501. The Minister is given a discretionary power to cancel a visa if sub-s (2) applies to a person who holds a visa. Sub-section (2) applies if the Minister, having regard to either of two matters, is satisfied that the person is not of good character. The two matters are either the person’s past criminal conduct or the person’s general conduct. It is the Minister’s satisfaction that makes the sub-section applicable. Such provisions are construed as requiring the decision-maker reasonably to be so satisfied. The question then on judicial review is whether the decision-maker could have attained that satisfaction reasonably, in the sense explained in numerous authorities in this Court. In Foley v Padley, Brennan J emphasised that the question on judicial review is not whether the court would have formed the opinion in question, and that an allegation of unreasonableness in the formation of the opinion by the decision-maker may prove to be no more than an impermissible attack on the merits of the decision. (footnotes omitted)

38    One of the “numerous authorities” referred to was Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu), where Gummow J considered at length the manner in which the Court might examine the satisfaction of a condition on which a power is exercisable when that condition is the formation of a state of mind. His Honour held that the state of mind goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution. In that review the Court will recognise that the relevant state of mind does not exist unless it has been formed by a “reasonable man who correctly understands the meaning of the law under which he acts”: R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430 per Latham CJ. It was also recognised that, in reviewing the satisfaction of the condition, the Court does not substitute its own opinion for the opinion of the relevant decision-maker, but inquires into whether the opinion required by the legislation has actually been formed. As was said by Latham CJ:

If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.

39    In Eshetu, Gummow J (at [134]) identified that Gibbs CJ and Brennan J had approved the above passage of Latham CJ, but noted that Brennan J had cautioned:

the question for the court is not whether it would have formed the opinion in question but whether the repository of the power could have formed the opinion reasonably and that an allegation of unreasonableness in the formation of that opinion may often prove to be no more than an impermissible attack upon the merits of the decision then made in purported exercise of the power.

40    Gummow J also referred to the observations of Gibbs J in Buck v Bavone (1976) 135 CLR 110 (Buck v Bavone) at 118-119, where the latter had identified some of the grounds on which the formation of an opinion or belief might be susceptible to review, being an absence of good faith, misdirection at law, a failure to consider matters which are required to be taken into account or taking into account matters which ought not to have been taken into account, and that the state of mind is so unreasonable that no reasonable authority could possibly have arrived at it.

41    The grounds on which a subjective jurisdictional fact might be vitiated are unlikely to be closed and, indeed, seem to extend to findings of fact made by the repository of power in the course of reaching a specified state of mind. In SZMDS, the joint judgments of Gummow A-CJ and Kiefel J on the one hand, and of Crennan and Bell JJ on the other, relied on the observations of Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 (SGLB) at 998 [38] that a court could conclude that a jurisdictional fact founded upon a person’s state of mind did not exist because it included some element of illogicality or irrationality in the fact-finding process leading to the conclusion. In SGLB their Honours opined:

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.

(footnote omitted)

42    In EHF17 it was explained that the grounds of jurisdictional fact review of irrationality, illogicality or illogical fact finding can arise at different places on the evaluative pathway. They may apply to a finding or conclusion of fact as well as to the ultimate exercise of power. However, it is important to observe that the ground of review has similar limitations to that of “legal” unreasonableness as a ground of jurisdictional error. If the particular impugned reasoning or conclusion is one which could have been reached by a reasonable person on the same material, the subjective jurisdictional fact will not be vitiated: EHF17 at [76]-[85].

43    Moreover, in the consideration of this ground of jurisdictional fact review, the reasons provided by the decision-maker ought not be over-zealously reviewed, but read with an eye to the substance of the reasoning: D’Amore v Independent Commission Against Corruption [2012] NSWSC 473, [87]. It must be kept in mind that what is being analysed is administrative fact finding, and not the analytical processes of curial determinations: Eshetu at 656 [143].

44    An additional difficulty in the review of a subjective jurisdictional fact is that referred to by to Gibbs J in Buck v Bavone, that:

where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.

That comment was emphasised by Gummow J in Eshetu where his Honour said of it (at [137]):

This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.

45    That issue becomes more acute when the subject matter of a subjective jurisdictional fact is a state of mind less than a belief. In George v Rockett (at 116), the Court identified what was required for there to be a belief in something. After referring to what is required for a suspicion, the Court said:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

46    In reliance on that passage, Newnes JA in Bernadt v Medical Board of Australia [2013] WASCA 259 (at [173]) said “[a] ‘reasonable belief’ similarly requires the existence of facts which are sufficient to induce the belief in a reasonable person.”

47    The foregoing demonstrates that where a power, discretionary or otherwise, is conditioned upon a subjective jurisdictional fact, a court may examine whether the state of mind required by the legislation actually existed. It will not exist if, in the formation of the purported state of mind, one of the identified errors occurred. That includes a failure by the repository of power to have regard to the “matters” which the statute requires. If one of the errors occurs the required state of mind will not have existed and any subsequent purported exercise of the power, which was conditioned on the existence of that state of mind, will lack authority. In this case the applicants alleged a failure to take into account “relevant considerations” giving rise to a jurisdictional error, however, those allegations were misdirected to the formation of the reasonable belief rather than the exercise of the power.

The difference between “relevant considerations” and “all relevant circumstances”

48    Turning to the question of the matters to be considered by the Commissioner, the distinction between “considerations”, on the one hand, and “circumstances” or “evidence”, on the other, should be kept in mind. Recently, the Victorian Court of Appeal emphasised this important difference in Chang v Neill [2019] VSCA 151 (Chang v Neill) at [71], where it observed that “A ‘relevant consideration’ in the Peko-Wallsend sense is usually expressed at a significantly higher level of generality than a factual matter.” It identified that a decision-maker may pay attention to and consider a “relevant consideration” even though it does not consider all of the evidence pertaining to that consideration. In doing so it relied upon the observations of Brennan J in Peko-Wallsend (at 61) to the following effect:

A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.

49    The Court in Chang v Neill then considered the discussion in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, where Robertson J considered the consequences of failing to consider material in the context of a determination by the Refugee Review Tribunal undertaking a review of a minister’s refusal to grant a protection visa. For present purposes the import of that decision is the recognition that ignoring material relevant only to fact finding does not, of itself, found jurisdictional error. However, his Honour’s careful observations in that case must be understood in the context of the statutory regime in which the decision was made. In particular, that the tribunal was obliged to undertake a review of a visa application, which involved turning its attention to the claims made and the supporting evidence. Other cases involving the omission of the tribunal to consider material which was highly relevant to the claim being reviewed were also considered by the Court of Appeal, as were others relating to whether medical panels under the Accident Compensation Act 1985 (Vic) had failed to fulfil their statutory obligation to answer questions referred to them by failing to take into account cogent evidence. It was observed that a vitiating error by a decision maker does not arise merely from overlooking relevant facts, evidence or material. The Court summarised its view as to the occasions on which a factual error of this nature will result in jurisdictional error in the following passage (at [92]):

The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material — properly construed — is an essential feature of a valid exercise of the function.

50    The Court’s discussion related to factual errors occurring in the context of the actual exercise of administrative power. No distinction was made between that and an error occurring in relation to a jurisdictional fact, although a number of the decisions of this Court relied upon by the Court of Appeal concerned the latter issue rather than the former. Additionally, the Court’s recourse to the language of Mason J in Peko-Wallsend — the subject matter, scope and purpose of the statutory function — is slightly confusing. Whilst such a test is adequate for detecting the “relevant considerations”, being the more general issues or topics which must be contemplated, it is not capable of being used to identify those factual or evidential matters to which a decision-maker must have regard lest a vitiating error occur. The Peko-Wallsend test is one designed to ascertain “legality”, being whether the power has been exercised as required by the legislature and, as such, is not one of idiosyncratic application which differs on a case to case basis: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at 347-348 [73]-[74] per McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed; and Abebe v Commonwealth (1999) 197 CLR 510 (Abebe) at 579 [195]. Nevertheless, the very helpful discussion is adaptable to the evaluative process engaged in by a repository of power in ascertaining the existence or otherwise of a fact on which their power is conditioned.

51    The Victorian Court of Appeal also concluded that a factual error will only result in a jurisdictional error where it was “material” in the sense used in Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 (Hossain) at 9 [29]-[31] and 19 [72] and Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 (SZMTA) at 611-612 [45]-[48] and 620-623 [84]-[95] (SZMTA). The requirement of materiality is a useful negative test of ascertaining what factors in any particular case are mandatory, in the sense that, if regard is not had to them, the statutory function will not have been performed.

The mandatory “factors” required to be considered in s 255-100(1)(b)

52    From the preceding discussion, it might be thought that, in the absence of the express reference to “all relevant circumstances”, the matters which the Commissioner would be required to consider are only those which the Act makes expressly or impliedly mandatory considerations. As was said by Dixon J in the following passage from Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 (Avon Downs) at 360, which has now reached the status of “received law”:

If he [the repository of power] does not address himself to the question which the [statute] formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review.

53    The requirement that the person whose state of mind is relevant must take into account those “factors” which “should affect [their] determination” is substantially the same as requiring they take into account the relevant considerations. This correlation was adverted to in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 (Saeed), in which the High Court considered the operation of, inter alia, s 65 of the Migration Act 1958 (Cth), which is structured such that the power to grant or refuse a visa is conditioned upon the formation of a state of satisfaction as to fulfilment of specified criteria. At 270 [54], the plurality said:

The question which arises, by reference to s 65(1), is whether the Minister can reach a state of non-satisfaction about the criteria if the Minister puts out of consideration whether there was an answer to the information contradicting the employment history put forward by the appellant. An analogy may be drawn with material, or relevant, considerations. In Avon Downs Pty Ltd v Federal Commissioner of Taxation the Commissioner was required to be satisfied as to the state of voting power at the end of the year of income in question. Dixon J said that the Commissioner’s decision was subject to review, inter alia, if he “excludes from consideration some factor which should affect his determination”. Where a decision-maker is bound to take a factor into account but does not, the requisite state of satisfaction is not reached.

(footnotes omitted)

54    For the latter proposition, reliance was placed on Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at 471 [85], which suggests that the matters to be considered are those which the Act expressly or by necessary implication requires the repository of power to take into account. Reference was also made to Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 447 [7]-[8] per Gleeson CJ and McHugh J, which is of not dissimilar effect.

55    Putting aside for one moment the words “all relevant circumstances”, the “factors” which the Commissioner or his delegate is required to take into account fall to be identified by an application of a test similar to ascertaining what are “relevant considerations” which, if there is a failure to consider them, in the exercise of a power, will give rise to a jurisdictional error. If the person whose state of mind is relevant fails to take into account those factors which the Act either expressly or impliedly mandates, the state of mind formed will not accord with the legislative prerequisite. The consequence of that conclusion may well be that, had the submissions of the parties on this issue — that the Peko-Wallsend test applies to ascertaining what are the “relevant circumstances” referred to in (1)(b) — been correct, it would follow that the phrase “having regard to all relevant circumstances” was merely a statutory exposition of the duty which would otherwise exist. Whilst a construction to that effect might occasionally be accepted, it is perhaps not entirely appropriate in the present case.

56    In s 255-100(1)(b), the issue of what “factors” require consideration is not referable to the exercise of a power or discretion. It concerns the formation of the reasonable belief that requiring a person to give security for the due payment of a future tax-related liability is appropriate. Necessarily, in reaching the prescribed state of mind, the “factors”, as referred to by Dixon J in Avon Downs, of which the decision-maker must take account, will be those which are expressly or impliedly required by the Act. As is identified later in these reasons, those factors may be: first, the existence of a tax-related liability; secondly, the risk that the person to be required to give security will not comply with their obligation to pay the liability; and, thirdly, that the security required will be efficacious in ensuring the obligation is fulfilled. On the other hand, rather than being “relevant factors” of which account has to be taken, these may be no more than the constituent elements of the state of mind to be formed and to which attention must necessarily be directed. For present purposes no issue turns on this distinction and, if they are taken into account, the state of mind which accords with the legislative prescription might exist.

“all relevant circumstances” refers to the evidence germane to the mandatory factors

57    What then are “all relevant circumstances”, to which the Commissioner is to have regard? It is not likely that the expression refers to “relevant considerations” as that expression is understood in the reasons of Mason J in Peko-Wallsend. Neither is it likely to refer to the cognate concept of a relevant “factor” identified by Dixon J in Avon Downs. If either were the case, the requirement to have regard to “all relevant circumstances” would seem to be superfluous.

58    Rather, the expression more likely refers to the material, evidence and information — that is, the “circumstances” — which are germane to the belief that requiring the giving of security is appropriate or, more specifically, germane to the “factors” which the Commissioner must consider in forming that belief. In that sense they can be seen as the evidence germane to the “relevant factors”, in an Avon Downs sense, which the Commissioner is implicitly required to consider, being the existence of a tax-related liability, the risk of non-compliance, and what will be effective security. Adapting the concept which found favour in Chang v Neill, the circumstances which must be considered are those which are important or significant to the function of forming the reasonable belief, and without consideration of which there would be a constructive failure to perform the statutory function. In that sense it, will be a vitiating error not to have regard to a circumstance which is essential to the consideration. Necessarily, the circumstances which must be considered will vary from case to case, and will differ each time the Commissioner is called upon to exercise the power. Whether the failure to consider a circumstance will nullify the state of mind will depend upon the significance of the information and its relative importance in the circumstances of the case. Expressed another way, the required state of mind will not exist if the Commissioner fails to have regard to facts, material or evidence which are essential, significant or important to the formation of the reasonable belief in the circumstances of the case, in the sense that it can be said the omission to regard such facts, material or evidence discloses a failure to perform the statutory function.

59    It might alternatively be said that the expression “all relevant circumstances” is wider than as identified, but that the required state of mind will only be vitiated if regard was not had to a circumstance which was essential, significant or important. Either way, the same result will ensue.

The obligation to “have regard to”

60    The applicants submitted that the requirement of “having regard to” the various circumstances was the equivalent of an obligation to “consider” those matters, such that the delegate had to give proper, real and genuine consideration to the various circumstances. Reliance was placed on the decision of the Full Court in He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at 51 [51]-[52], where it was said:

The matters set out in reg 1.15A(3) are relevant considerations which the decision-maker is bound to consider: see Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303 at [51]. This requires a decision-maker to bring an active intellectual process to each of those matters: Tickner v Chapman (1995) 57 FCR 451 at 462, 476, 495; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45] (and the authorities cited therein). In other words, the decision-maker must actively think about each such matter. Further, the term “consider” imports an obligation to give proper, genuine and realistic consideration to the relevant matters: Bondelmonte v Bondelmonte (2016) 259 CLR 662 at [43]. The requirement to give proper, genuine and realistic consideration to a matter necessarily incorporates the application of an active intellectual process. These authorities do not suggest that a requirement to “consider” a matter may not require a decision-maker to do more in an appropriate statutory context.

61    There the requirement was to consider particular matters which were enumerated in the legislation. No such specification exists in the present case, where the requirement is expressed as “having regard to all relevant circumstances”. The general rule of construction appears to be that, where the legislative requirement is to consider or to “have regard to” particular facts and matters, the repository of power is required to give them “proper, genuine and realistic consideration”, and such matters are to become fundamental and a focal point in the decision-making process: Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129, 217-218 [275]. As was said by Spigelman CJ (with whom Beazley and Giles JJA agreed) in Insurance Australia Ltd trading as NRMA Insurance v Motor Accidents Authority of New South Wales [2007] NSWCA 314 at [40]:

The Appellant relied on a number of authorities which indicate the approach that ought to be adopted by a decision-maker exercising a statutory power which requires that decision-maker to have regard to particular facts and matters. The Guidelines in the present case were so expressed. This line of authority establishes that a reference of this character requires a decision-maker not only to take the relevant matters into account but to give them weight as a fundamental and focal element in the decision-making process. The authorities relied upon in this regard were The Queen v Toohey; Ex parte Meneling Station Pty Limited (1982) 158 CLR 327 at 333 and 338; R v Hunt; Ex parte Sean Investments Pty Limited (1979) 180 CLR 322 at 329; Parramatta City Council v Hale (1982) 47 LGRA 319 at 338, 339, 340 and 342; Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257 at 266-267; Weal v Bathurst City Council (2000) 111 LGERA 181 at [82]; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 602, [71] – [73].

62    The crucial element in these cases is that the considerations to which the decision-maker was required to have regard were specified or particularised and, that being so, the legislation was construed as requiring those matters receive weight as being fundamental in the evaluative process. That principle cannot apply where the requirement is to have regard to “all relevant circumstances”, as all such matters cannot become fundamental or focal points. If the principle did apply in such cases it would impose a super-added burden on the decision-maker in reaching the stipulated state of mind. It would require much more than an appreciation of the existence of the relevant surrounding circumstances, and would require detailed consideration of every possibly relevant fact. That would impose an unduly onerous obligation as well as being administratively unworkable.

63    At this point it is appropriate to repeat the admonition of the Court of Appeal in Chang v Neill to maintain the distinction between “relevant considerations” on the one hand and evidence or circumstances on the other. The cases just referred to were essentially concerned with “considerations” of which the decision-maker was to have regard, which are at a higher level of generality than facts or circumstances. It may well be that mandatory “factors” or “considerations” have to be given “proper, genuine and realistic consideration”. That is consistent with the nature of jurisdictional error, ensuring legality in the administrative decision making process. It is not, however, appropriate to apply the same standard of deliberation or analysis to every piece of evidence within the scope of the broad expression “all relevant considerations”.

64    The requirement that the Commissioner reach the relevant state of mind “having regard to” the broad range of matters described as “relevant circumstances” indicates that the legislature intended that no special weight need be given to them. So long as they are taken into account or considered in the process of reaching a reasonable belief, the requirement is satisfied. They do not have to be regarded as fundamental, or a focal point of the decision. It cannot be said that the legislature has ascribed particular weight to be given to those circumstances. The weight to be given to them is a matter for the repository of power.

Consequences of an omission to consider a relevant circumstance

65    It is appropriate to consider at this point the consequence of a failure by the Commissioner to have regard to one of the “relevant circumstances” when formulating his state of mind for the purposes of s 255-100. As mentioned previously, the applicants submitted that the “relevant circumstances” were those identified by an application of the Peko-Wallsend test for relevant considerations. Not only was that submission wrong, it was ignored by the applicants, in that they proceeded to identify a wide range of facts and circumstances relating to the taxation affairs of Ms Bazzo and her companies and asserted the Commissioner was in error in failing to give each of them “real and genuine consideration”. Although these matters were said to fall under the rubric of a failure to take into account matters favourable to the applicants, that was a short-hand way of asserting that each of the myriad matters was germane to the issue of whether requiring security was appropriate, was not considered, and jurisdictional error ensued.

66    The applicants’ approach highlights the difficulty of construing the expression “all relevant circumstances” too widely or, at least, accepting that the consequence of an omission to consider a “circumstance” is, without more, a vitiating error. If it were the case that “all relevant circumstances” referred to everything that related to the issues at hand and that an omission to consider any one fact rendered the putative state of mind invalid, a taxpayer who received an SBD would be able to make an exhaustive list of every fact and circumstance which may conceivably be relevant to the required state of mind and attack the decision to issue it on the basis that one was not considered: cf Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 at 370-371 per Deane J. To some degree this is what the applicants have done in the present matters. For instance, in the course of cross-examination, the applicants sought to criticise the delegate for not having regard to a statement in a report prepared by the Administrator of one of Ms Bazzo’s companies to the effect that she might be able to raise a defence to what was identified as a potential insolvent trading claim. Although that was not articulated as a ground in either application, it demonstrates how unlikely it is that the reasonable belief underlying a decision to issue an SBD will be vitiated merely because regard is not had to every conceivably relevant circumstance.

67    It is a most unlikely proposition that the legislature intended that a failure to take into account every fact which related to the issue under consideration would necessarily render the decision invalid. It is more probable that the legislature intended that a failure to have regard to a “relevant circumstance” will only invalidate the subsequently formed belief when that circumstance was of such a nature that the failure to consider it is indicative of a failure to perform the statutory function. In that sense, regard only needs to be had to those circumstances that are essential, significant or important to the formation of the state of mind. Whether they have that quality is to be ascertained in the circumstances of the case: cf Chang v Neill.

68    Further, the omission to take into account a relevant circumstance will not invalidate the state of mind if the circumstance was not “material”, in that there was no possibility that its consideration would have led to a different result: Chang v Neill at [93]-[100] referring to Hossain and SZMTA. It may be doubtful whether that adds anything to the condition referred to in the previous paragraph, although it gives some colour to the type of circumstance which, if not considered, is indicative that the statutory task has not been performed.

69    Bringing the above concepts together, it can be said that a failure by the Commissioner to have regard to a “relevant circumstance” will be an error which will vitiate the reasonable belief formed under s 255-100 where:

(a)    the Commissioner fails to have regard to a circumstance which is germane to the issues of the formation of the relevant belief; namely, whether a tax-related liability exists with respect to the taxpayer, whether there is a risk the taxpayer will not pay that liability, and whether the security required is effective;

(b)    the circumstance is so essential, significant or important to the formation of the reasonable belief in the particular case that the failure to have regard to it indicates the Commissioner’s statutory function has not been fulfilled, because there has been no real and genuine consideration of the crucial issues on which the state of mind must exist; and

(c)    to the extent to which it adds anything to (b), the circumstance is material to the formation of the reasonable belief in the sense that there is a realistic possibility of a different outcome if regard were had to it.

70    The applicants submitted that the matters specified in the Commissioner’s Practice Statement PSLA 2011/14, which include instruction on the exercise of power under s 255-100, were also matters which the delegate had to be consider. Whilst that document identifies some matters which may, in some cases, be important, it is not definitive of those matters which may or must be considered.

The exercise of the discretion in s 255-100(1)

71    If, after having regard to the relevant circumstances and taking into account the relevant factors, the Commissioner reasonably believes that the requirement to give security is appropriate, the condition on which the discretion is exercisable will have been satisfied, and the power to issue an SBD is enlivened. That discretion is conferred in unconfined terms and, as is discussed below, so are the matters which are relevant to its exercise. The only considerations which must be taken into account are determined by the well-established principles derived from Peko-Wallsend. The identification of “relevant considerations”, if any, to be taken into account in the exercise of the discretion, are also discussed below. However, it is apt to keep in mind that the satisfaction of the jurisdictional fact goes some considerable way to influencing the exercise of the discretion. Once the Commissioner, having taken into account the relevant factors and having had regard to the “relevant circumstances”, reasonably believes the giving of security is appropriate, there must necessarily be some inclination towards exercising the discretion to require it of the taxpayer.

The applicants’ submissions as to how the power was to be exercised

72    Mr Hack QC (who led Mr Fickling), for the applicants, submitted that the lineal approach to the decision making process in s 255-100, which is outlined above, is somewhat artificial, and the Commissioner will necessarily consider all matters at once. In that way, so it was said, the Commissioner will identify some form of security which, in the circumstances, he considers is appropriate and which, in the exercise of discretion, ought to be required from the taxpayer. It was submitted that, in the course of this process, the consideration of “all relevant circumstances” is simultaneously undertaken in relation to both the formation of the reasonable belief and the exercise of discretion. This appears to have been the foundation for the submission that the “relevant circumstances” in subs (1)(b) are to be ascertained by an application of the Peko-Wallsend principles.

73    Whether, as a matter of pragmatism, the power in s 255-100(1)(b) is conveniently exercised by the Commissioner in the one step, its valid exercise involves a two-step process, requiring the satisfaction of the jurisdictional fact in subs (1)(b) and then the subsequent exercise of the discretion. Those twin stages are important, and different considerations are applicable to each. Additionally, the principles through which a vitiating error might be identified at each stage are quite different.

74    A result of the lack of attention paid to the structure and operation of s 255-100 was that the applicants’ attack on the delegate’s decision was somewhat directionless. On some occasions it was directed to the exercise of discretion and, at other times, towards the formation of the reasonable belief as to the appropriateness of requiring the giving of security. The originating application (in its final form) did not seek to differentiate between these two disparate exercises. (In its pleaded form, in the 3FAOA— but not in the Holmes Road FAOA — the ultimate attack appeared to be that the decision was an improper exercise of power: s 5(1)(e) of the AD(JR) Act; seemingly on the basis of s 5(2)(b) — although reference is not made to either provision and the argument proceeded in a less particularised manner, in relation to failure to take into account a relevant consideration. It is appropriate to deal with the argument in that way.) The written and oral submissions further conflated the respective principles. (See, for instance, paragraph 93 and following of the applicants’ submissions.)

The case as advanced by Fastbet

75    In the course of these proceedings the applicants each made substantial amendments to their originating applications. By the time of the hearing, the relevant versions were, in the Fastbet matter, the 3FAOA, and in the Holmes Road matter, the FAOA, although the precise nature of the alleged grounds of invalidity remained somewhat opaque. To a large extent the grounds relied upon in each application were relevantly the same.

76    The first operative ground is Ground 3 of the 3FAOA, which alleged:

3.    In exercising the power in s 255-100 of Schedule 1 to the Taxation Administration Act 1953 (Cth) the decision maker only considered matters unfavourable to the Applicant or the Applicant’s sole director, Tina Michelle Bazzo, and failed to consider matters known to him or known by other officers of the Respondent, that were favourable to the Applicant or Ms Bazzo …

Thereafter, Fastbet set out a number of matters or circumstances relating to the tax affairs of Ms Bazzo and companies controlled by her which it was said were not considered. The precise manner in which this constituted a ground of review under the AD(JR) Act or amounted to a jurisdictional error for the purposes of s 39B of the Judiciary Act was not clearly articulated.

77    Ground 4 made an allegation of a failure to take into account a relevant consideration, being the manner in which the future tax-related liability was calculated, without requiring explanation or making any inquiry.

78    Ground 5 alleged that the exercise of power involved a failure to take into account a relevant consideration, being the detrimental impact on Fastbet of requiring security over the land which it was developing and intending to sell.

79    Ground 6 alleged that the decision was an improper exercise of the power in s 255-100, because the above matters were not taken into account. Taken together, Grounds 3 to 6 suggest that the error allegedly committed by the delegate occurred in the exercise of discretion consequent upon a failure to take into account relevant considerations.

80    Ground 7 asserted that s 255-100 is beyond the legislative competence of the Commonwealth, because it amounts to a taking without just compensation. This is the constitutional ground to which reference has been made.

81    Grounds 8 to 10, which were not really grounds at all, appear to allege that the receipt by the Commissioner of amounts from Fastbet on the conveyance of portions of the secured land was invalid and the Commissioner held those funds as money had and received, such that he ought to be required to repay them.

82    The claims of Fastbet were largely replicated in the FAOA in the Holmes Road proceeding, save for some modified particulars of Ground 3 and the omission of paragraphs 6 to 10, which appeared in the Fastbet proceeding only.

The failure to take into account relevant considerations

83    The arguments in support of Grounds 3, 4, 5 and 6 were not substantially differentiated in the course of addresses and it is appropriate to consider them in the same manner.

The erroneous nature of the applicants’ submissions

84    The principal argument advanced by the applicants was that the delegate in each matter failed to take into account several alleged “relevant considerations” when exercising the discretionary power to issue the SBDs, resulting in jurisdictional errors necessitating the setting aside of the decisions to issue them. At paragraph 71 of their submissions the applicants said:

First, the use of the expression ‘all relevant circumstances’ to which the decision maker must have regard, governs the nature of the discretion to be exercised; it is not unfettered, those words must be given meaning and effect.

A similar submission was made in paragraph 7 of the applicants’ opening submissions.

85    As indicated previously, that submission was erroneous because the “relevant circumstances” are referable to the formation of the subjective jurisdictional fact and not the exercise of the discretion. However, it is consistent with the heavy reliance placed by the applicants in this matter on the principles found in Peko-Wallsend: see especially paragraphs 78 to 105 of the applicants’ written submissions.

86    It is true that, in the exercise of that discretionary power, a failure to take into account a relevant consideration may generate a jurisdictional error which vitiates it. This is what the applicants say occurred in the matters before the Court, and that is reflected in the grounds advanced in the respective applications. Despite that, in their written submissions the applicants occasionally submitted that the fault giving rise to jurisdictional error was a failure by the delegate when reaching the required state of satisfaction in subs 255-100(1)(b) to take certain “relevant circumstances” into account. (See, in particular, paragraph 104 of the applicants’ written submissions.) Those latter submissions were not coherent with the FAOAs, which did not allege the existence of any jurisdictional error based upon the non-existence of the subjective jurisdictional fact, being the Commissioner’s reasonable belief that the giving of the notice was “otherwise appropriate, having regard to all relevant circumstances”.

87    In essence, there was a fundamental flaw in the applicants’ submissions in relation to the grounds which relied upon a failure to take into account “relevant circumstances”. Given that error, there was some irony in the applicants’ criticism of the Commissioner for failing to identify what were the “relevant considerations” for the exercise of power in s 255-100. In any event, the applicant carries the onus of establishing jurisdictional error by identifying the considerations which are “relevant”, in the legal sense, to the exercise of power, and that they were not taken into account (and that the failure to do so was material: see SZMTA at [44]-[48]).

The applicants’ asserted mandatory considerations

88    At the hearing of the applications, the applicants identified four matters which they submitted were “relevant considerations” which the Commissioner failed to consider when exercising his discretion in s 255-100. First, they referred to the fact that the Commissioner is entitled to, without notice to the taxpayer, require the payment of an estimated amount of tax and the taxpayer must pay it even though it may never be due. It was submitted that, “self-evidently, the exercise of the power may have severe adverse consequences for the recipient”, like a freezing order, and should only be used as last resort. It was then said that, in the circumstances of the present cases, the requiring of security would have significant consequences for the taxpayers, such that, self-evidently, that potential impact must be a consideration the Commissioner had to take into account: see in particular the submissions made during the course of the hearing (Transcript pp 19-21). These submissions seemed to be referable to Ground 5 in each application. The second factor relied upon was that the security is for the due payment of an existing or future tax-related liability, and not for the existing liability itself. The relevance of that was not explained in the context of the relevancy of any consideration. Thirdly, it was submitted that the power of the Commissioner enables him to require security at any time and as often as he reasonably believes appropriate. This, it was said, informed the fourth matter, that the income tax system operates on an annual reporting and accounting of taxable income and monthly (in the case of Fastbet) or quarterly reporting and accounting of net GST liabilities. This suggested the Commissioner was required to undertake some form of notional assessment before issuing a notice, and that here there was an error in the identification of the quantum of the future tax-related liability. It was said that if a notional assessment had been undertaken, it would have been determined that Fastbet had tax losses which it might offset against income, with the result that the assumed liability would not have existed. This seems to be referable to Ground 4 of the 3FAOA in the Fastbet matter and the corresponding ground in the Holmes Road matter.

89    The applicants submitted that each of these “are matters that inform the conclusion as to what are mandatory relevant considerations”. After making this point, in the written submissions the applicants referred to the decision in Peko-Wallsend at length and then submitted:

86. The argument for Fastbet and Holmes Road is that this passage [from Peko-Wallsend] supports the proposition that a decision maker is bound to have regard to ‘the most current material available’; a failure to do so may result in a failure to take into account a relevant consideration where, as here, the most current material available is disregarded, whether consciously or unconsciously.

87. Obviously enough, Peko Wallsend has been applied frequently and this passage has also been applied in the manner that Fastbet and Holmes Road submit it ought be applied here.

90    Later on in the written submissions the applicants said:

92. Once it is accepted that the decision maker was bound to make the decisions on the basis of the most current material available to him it is evident that Mr Burns did not do so in a number of respects.

91    The applicants then set out what were said to be facts which the Commissioner did not take into account. In effect those matters are those referred to in Ground 3 of the FAOAs, which are said to weigh against the conclusion that the applicants would not meet their tax-related liabilities, in that they ameliorated the impact of the matters on which the delegate relied. For convenience they shall be referred to as the “ameliorating matters”. The applicants did not really make clear whether their claim was that those matters had to be taken into account because they involved more recent facts or merely because they were favourable to the applicants.

92    Subsequently, the applicants referred to the delegate accepting the calculation of the future tax-related liabilities undertaken by officers of the ATO audit department. It was submitted that it was an error for the delegate not to consider the calculation for himself. This, so it was said, had the consequence that the delegate could not have had a reasonable belief in the existence of that liability. The submission in relation to this issue also drifted into the contention that the delegate was not able to rely upon the calculation by the ATO officers when making the decision to require the security. Again, these submissions appeared to relate to Ground 4 in the applications: that the delegate failed to take into account “relevant considerations namely the manner of calculation of the amount of the claimed tax-related liability, and simply adopted, without question, explanation or enquiry a calculation by other officers of the Respondent.”

The applicants’ submissions as to “relevant considerations”

93    In the course of the hearing, the applicants submitted that what considerations are “relevant” or mandatory when exercising a particular statutory power is to be determined on a case-by-case basis, in that they are idiosyncratic to the case at hand and depend upon the circumstances of the particular case. That submission is inconsistent with the observations of the High Court in Yusuf at 347-348 [73]-[74] and must be rejected. There, relying on the observations of Gummow and Hayne JJ in the earlier decision of Abebe at 579 [195], the plurality (McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed) held that the identification of what considerations are or are not relevant to a decision-maker’s task is “to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider”. The jurisdictional error of failing to take into account a relevant consideration is essentially concerned with whether the decision-maker has properly applied the law (at [73]). It is a matter of legality, such that the question is whether the subject-matter, scope and purpose of the legislation in question carried the implication that a particular matter had to be considered.

94    After being referred to the decisions in Yusuf and Abebe, the applicants resiled from their earlier position and acknowledged during addresses that the indicia of “relevance” were to be found in the legislation itself. Despite that acknowledgment, their final submissions tended towards a fact-specific analysis of what were said to be the “relevant considerations”. They agitated that the delegate did not take into account specific matters or pieces of evidence which would have been known to the Commissioner and which may have weighed against the view that there existed a perceived risk that the applicants would not satisfy their tax-related liabilities. The broad ground was that the delegate was required to take into account matters known to the Commissioner’s offices which were “favourable” to the applicants.

95    Overall, these submissions lacked coherency and consistency, because they conflated the issue of the “circumstances” relevant to the formation of the subjective jurisdictional fact and those “considerations” which might be referable to the exercise of the discretion.

Peko-Wallsend and “relevant considerations”

96    The applicants relied at length on the decision in Peko-Wallsend, as the foundation for the assertion of a jurisdictional error arising upon the failure of the delegate to take into account relevant considerations. They also relied upon it, albeit erroneously, in support of the allegation that the delegate had committed a jurisdictional error in failing to take into account “all relevant circumstances” as required by s 255-100(1)(b).

97    A third reason applicants relied upon Peko-Wallsend was for the submission that the repository of power must consider the detrimental impact on a person affected by its exercise and only act on the most recent and up-to-date material.

98    As the decision in Peko-Wallsend is central to many of the submissions made, it is necessary to consider it and the principles which can be derived from it in some detail.

The reasons of Mason J in Peko-Wallsend

99    In that case, the company, Peko-Wallsend, alleged that the Minister’s grant of land rights to certain aboriginal groups in the Northern Territory was an improper exercise of power because, in making the grant, he failed to take into account the consequential detrimental impact on the company. It had expended substantial money engaging in mineral exploration of uranium deposits in the area over which the grant had been made, and claimed that expenditure would be wasted by reason of the Minister’s decision. In considering whether to make the grant, the Minister was obliged to have regard to a report made by the Aboriginal Land Commissioner who, in making that report, was required by s 50(3) of the relevant legislation to comment on the detrimental impact of the making of the grant. It was apparent that the Commissioner’s report failed to fully appreciate the impact of the making of the grant on Peko-Wallsend and, after the report was completed, the company made further extensive submissions about the true nature of the impact. Those submissions were made to the predecessor of the relevant Minister.

Detriment as a “relevant consideration”

100    The first issue was the identification of the matters which the Minister was bound to take into account in making his decision. It had earlier been held, in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, that the obligation of the Commissioner to comment in his report on the detriment which might be suffered by persons as a result of the grant did not require him to take it into account in making his recommendation. However, the relevant question was whether the Minister was required to take the Commissioner’s comments into account when making his decision. Mason J held that a consideration of the subject-matter, scope and purpose of the legislation indicated that it was necessarily implied that the Minister was required to do so. That was because the Commissioner was required to comment in his report on the matters specified in s 50(3), which included the suffering of any detriment. That provision recognised that the making of a land grant may detrimentally impact on many people and, in some cases, in a substantial way. Because the comments concerning detriment were to be included in the report, it was apparent that the legislature intended the Minister should not overlook those crucial considerations which might counter-balance or outweigh the justice of granting the land. The Act provided a means by which the relevant factors would be analysed and drawn to the attention of the Minister for the purposes of them being taken into account. That purpose would not be satisfied if the Minister was merely entitled to take them into account rather than being required to do so. The statutory regime operated such that it was only at the stage of the Minister’s deliberations that those matters might be considered, and the persons affected had no other opportunity of having the detriment which might be suffered by them taken into account. It followed from the analysis of the subject-matter, scope and purpose of the Act that a relevant or “mandatory” consideration for the Minister was the potential detriment which might be suffered by various persons were the land grant to be made.

101    In summary, the principles which can be derived from Mason J’s reasons, relating to jurisdictional error arising from a failure to take into account a relevant consideration, are:

(1)    “The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account.”

(2)    The legislation in question may expressly state those matters which a decision-maker is required to take into account, however, it may be necessary to ascertain whether the identified matters are an exhaustive list of the mandatory considerations.

(3)    Where the mandatory considerations are not expressly stated, they must be ascertained “by implication from the subject-matter, scope and purpose of the Act.”

(4)    Where a statute confers a discretion which is, in its terms, unconfined, the factors which may be taken into account are similarly unconfined, save to the extent they are excluded by reference to the subject-matter, scope and purpose of the Act.

(5)    By analogy, “where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.”

(6)    Even if a decision-maker fails to take into account a consideration which the legislation required them to consider, it may be so insignificant that its consideration could not materially have affected the decision.

(7)    Where a decision-maker takes all relevant considerations into account, the weight accorded to them is generally a matter for the decision-maker.

102    The general position was succinctly stated by the Victorian Court of Appeal in Chang v Neill at [68], in the following terms:

It is a long standing principle that a failure by a decision-maker to take into account a relevant consideration which he or she was bound to take into account will constitute jurisdictional error if that consideration could have materially affected his or her decision.

Most recent material concerning relevant considerations

103    The second question identified by Mason J was whether, in relation to the identified relevant consideration, the Minister was also bound to take into account the submissions made to him which updated or elucidated the Commissioner’s comments on the detriment which might have been suffered. In this respect his Honour said (at 44):

Once it is accepted that the subject matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand.

104    His Honour noted that there may be a significant lapse of time between the making of the Commissioner’s report and the final decision by the Minister, such that by the time of the latter the Commissioner’s comments may not be an accurate guide as to the actual position. It was in this context that Mason J said (at 45):

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

105    His Honour went on to indicate that the conclusion was more compelling when the decision was one exposing a party’s interests or “legitimate expectations” to a new hazard or jeopardy. His Honour then said (at 45-46):

… When the Act specifically provides for the Commissioner to comment on the manner in which persons may be adversely affected by the making of a land grant, and provides the means whereby those comments are brought to the Minister's attention, there may readily be found in the subject matter, scope and purpose of the Act an implication that the Minister is bound to take resultant detriment into account when making his decision. There is no sound reason for confining that obligation to a consideration of the comments in the report; matters put to the Minister by interested parties correcting, updating or elucidating the Commissioner’s comments can be of no less relevance.

Although it was not argued in the present case that the failure to consider the respondents’ submissions amounted to a denial of natural justice, the foregoing reasoning conforms to the principles of natural justice, on the assumption that they are applicable.

106    The reasons of Mason J have been set out in detail because they were relied upon by the applicants, in support of paragraphs 86, 87 and 92 of their written submissions, to the effect that there existed a general proposition which applied to the delegate such that he was required to take into account the “most current information available”. However, those submissions are not supported by Mason J’s reasons. The requirement that the decision-maker consider the most up to date material was referable to the identified “relevant considerations”. There is nothing in the reasons of Mason J which turns matters which are not “relevant considerations” — properly so called — into mandatory considerations, simply because they are “up to date matters” which are relevant to the decision. Further, nothing suggests the decision maker is bound to take something into account simply because it has newly arisen and may relate to the decision being made. First and foremost, the consideration must be one which the statute, either expressly or impliedly, imposes on the decision maker the obligation to consider.

Applying Peko-Wallsend for identifying the relevant considerations in s 255-100(1)?

107    The discretion in s 255-100(1) is broad and granted in unconfined terms, permitting the Commissioner to require the giving of security once the jurisdictional fact — being satisfaction the requirement is appropriate — has been established. Unless it can be determined that there exists some implied limitation on or requirement as to the matters which the Commissioner is to consider, the factors which may be taken into account in exercising the discretion are similarly unconfined.

The subject matter, scope and purpose of s 255-100 and the TAA

108    In the application of the test identified by Mason J for the ascertainment of “relevant considerations”, the nature or subject matter of the TAA is not of great assistance. It is an Act for the purposes of administering the Commonwealth’s taxation legislation and for associated purposes. That, of itself, gives no apparent indication of the matters which must be considered by the Commissioner when exercising a power under s 255-100. It is but part of the wider taxation scheme.

109    More relevantly, Part 4-15, which is about the collection and recovery of tax-related liabilities, has the express purpose of ensuring that unpaid amounts of tax-related liabilities are collected or recovered in a timely manner. That does not tend towards any suggestion that, when considering whether to exercise the power to require security, the Commissioner is obliged to ascertain the effect or likely effect on the taxpayer of requiring the security or any ameliorating matters. Delay caused by attempting to ascertain such matters may very well be contrary to recovery of tax and the speed with which it is collected.

110    The purpose of Part 4-15 is to afford to the Commissioner powers and privileges to facilitate the collection of taxes. These have been set out above and they are directed to the protection of the revenue, the enforcement of tax-related liabilities, and the recovery of what are or are perceived to be liabilities which are owing or will be owing. None of the provisions in this Part specifically require the Commissioner, when exercising any of the powers, to consider the matters referred to by the applicants and, given they are directed towards ensuring the performance of the taxpayer’s obligations, that omission is not irrelevant.

111    On occasion in Part 4-15 the legislature has seen fit to make provision for the lessening of the consequences of the exercise of the recovery or enforcement powers by the Commissioner. Their existence tends to indicate that the legislature was alive to balancing the interests of the Commissioner and of the taxpayer and, where appropriate, there is provision for the taxpayer to reduce the impact of the Commissioner’s actions. That suggests that the absence of any requirement on the Commissioner to take into account the interests of the taxpayer, or to afford the taxpayer some entitlement to negate the effect of recovery action, is intentional. It is to be remembered that, more broadly, the taxation legislation has myriad provisions allowing taxpayers to challenge the decisions of the Commissioner, in addition to the remedies available under the ADJR Act and under s 39B of the Judiciary Act.

The terms of subdivision 255-D

112    The terms of s 255-100 also do not lead to a conclusion that, in the exercise of the discretion, the Commissioner is bound to consider the impact of requiring security on the taxpayer. The discretionary power in the chapeau to require security is given in broad and unconfined terms. It is also relevant that the power is only enlivened by the satisfaction of one of the jurisdictional facts in subs (1)(a) or (b). In the first instance, that power may be enlivened where the Commissioner believes that the taxpayer is establishing or carrying on an enterprise in Australia and intends to carry it on for a limited time only. In that case the mental state which the Commissioner is to reach, being “has reason to believe”, is a relatively low bar, being something less than “satisfied” or having a “belief” or a “reasonable belief”. It is akin to a suspicion. It is apparent that the legislature regards the risk of non-payment of a tax-related liability from the circumstances specified as being somewhat axiomatic, such that the Commissioner need only have a low level of confidence in their existence before the power is enlivened. There is logic in that, as where the identified circumstances exist, there is obviously a heightened risk of the non-payment of a tax-related liability following the cessation of business and the removal of any generated revenue from Australia. Needless to say, there may often be situations where the Commissioner is required to act with expedition in such cases. There is nothing in relation to the operation of this subsection which points towards any detriment to the taxpayer being a mandatory consideration in the making of the decision by the Commissioner.

113    Neither is there anything to suggest, if the discretion is enlivened by satisfaction of the requirement in subs (1)(b), that the several matters relied upon by the taxpayer are intended to be mandatory considerations in its exercise. The condition to be satisfied here is whether the Commissioner “reasonably believes” that the requirement is otherwise appropriate, having regard to all relevant circumstances. The word “otherwise” indicates that requiring security from the taxpayer is to be appropriate for reasons other than those referred to in subs (1)(a). Necessarily, “appropriate” is used in the sense that the requirement is needed because there is a perceived risk of non-payment of a tax-related liability. It is not insignificant that the concept of “appropriate” involves value judgments and is a matter on which reasonable minds might differ.

114    As with subs (1)(a), there are two distinct matters in (1)(b). There is a postulated state of affairs — that the requirement for the provision of security is “appropriate” — and, secondly, a state of satisfaction as to the existence of that state of affairs, being the holding of a reasonable belief that it exists. Although it probably makes little difference to the outcome, the requirement to have regard to the relevant circumstances is probably directed to the ascertainment of whether the requirement for the provision of security is “appropriate”. That would appear to be grammatically correct: the qualifying phrase following a comma is usually taken to qualify that which immediately precedes it. It is also coherent with the operation of subs (1)(a), as the circumstances in which the need for security exists are not stated in subs (1)(b), such that it is necessary to consider the relevant circumstances to ascertain whether those circumstances make it appropriate to require security.

115    The point to be made is that, by the time the Commissioner reaches the relevant state of satisfaction, he will have considered a range of matters and, for the purposes of subs (1)(b), have concluded that requiring the giving of security is appropriate. There is nothing in the section to suggest that, in the subsequent exercise of the discretion, the Commissioner is required to then undertake an analysis of the detrimental impact on the taxpayer or any “ameliorating matters”.

No requirement to take detriment into account

116    As appears from s 255-100(3), the power to require security can be exercised at any time and as often as the Commissioner reasonably believes is appropriate. Although the applicants submitted this indicates that the Commissioner is required to take the impact of the decision to require security on the taxpayer into account, there was no explanation as to why that was so. If anything, the flexibility and immediacy with which the power can be used indicates to the contrary. The underlying rationale for the power is the perceived threat that a tax-related liability will not be paid, and the legislature has recognised that the power may have to be exercised urgently to avoid that situation. The suggestion that the Commissioner need consider the impact of the taxpayer of the imposition of security is inconsistent with that purpose. If the Commissioner were required to consider how the requiring of security might impact the taxpayer, it would probably follow that he would be obliged to make some inquiry into the taxpayer’s circumstances. However, there is no process in the Act for undertaking that task, nor for bringing the relevant circumstances to light. If he were required to inquire of the taxpayer as to what the impact might be, it is possible that the ability to require security would be thwarted by the taxpayer dissipating assets. Mr Hack QC for the applicants acknowledged that the power can be exercised without notice to the taxpayer, and that is undoubtedly correct. The necessary consequence is, however, that the Commissioner is not required to inquire into the taxpayer’s circumstances and, in particular, how the requiring of the security might impact on those circumstances.

117    The reliance by the applicants on the reasons of Mason J in Peko-Wallsend, for the submission that the detriment which might be suffered by the applicants is a mandatory consideration, was misguided. There, the necessary implication from the legislation in question required the Minister to take into account any detriment which might be suffered by any person as a result of the making of land grant. Mason J identified provisions in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which made the detriment which might be suffered as a result of the exercise of power something which, implicitly, the Minister was required to consider. Under that Act the Commissioner was required to make a comment on that topic, after conducting an inquiry and receiving submissions from interested parties. It was not something the Commissioner was, himself, required to take into account, but was something which the regime in the Act was to bring to the attention of the Minister. It followed that the legislation implicitly required the Minister to consider it. There are no such similar provisions in the TAA, and nothing was pointed to which suggested that the possibility of detriment being suffered by the taxpayer was a matter which the Commissioner was bound to consider.

No free-standing requirement to take into account the most current material

118    The applicants’ second main argument made in reliance on Peko-Wallsend (as appears from paragraph 92 of the applicants’ written submissions) was that the Commissioner erred in considering the identified material because it was not “the most current material available”. That material was said to be information which post-dated the matters which were specified by the delegate in his reasons and were, in a general sense, favourable to Ms Bazzo and the applicants. In general terms, it was submitted the delegate considered those matters which indicated the delinquency of Ms Bazzo and her companies in relation to their taxation obligations, but failed to consider the “ameliorating matters”. Those included: that Ms Bazzo was contesting her alleged liability to the Commissioner; that she had covenanted to prosecute her objection proceedings expeditiously; that she had, in some instances, provided security; that her lodgement obligations were up-to-date; and that she was defending her prosecution for taxation offences. It was also submitted that the delegate failed to have regard to the fact that some of Ms Bazzo’s companies had contested their taxation liabilities, but had been wound up before the proceedings were determined, and other matters which might be regarded as exculpatory in relation to the adverse criticism of Ms Bazzo by some administrators of one of her companies.

119    However, there is no general requirement in s 255-100 requiring the Commissioner to take into account the most current material available to him or material merely because it is favourable to the taxpayer. Neither does the decision in Peko-Wallsend impose any such obligation. In that case, it was only once detriment to the applicant was identified as a mandatory consideration that there arose a requirement for the Minister to consider the most current information on that topic. There is nothing in the subject matter, scope and purpose of the TAA, Part 4-15 or s 255-100 which suggests that the impact of the requiring of security is a matter which the Commissioner is bound to take into account before issuing an SBD and there is no basis for asserting that he is required to consider more recent material. The reliance by the applicants on Peko-Wallsend in relation to this submission must fail.

Conclusion as to mandatory considerations in the exercise of the s 255-100 discretion

120    It follows that the alleged mandatory considerations relied upon by the applicants do not arise “by implication from the subject-matter, scope and purpose of the Act”. Rather, it would seem that once the Commissioner’s discretion is enlivened by the satisfaction of the jurisdictional fact, the matters which may be taken into account are unconfined. Certainly, consideration of the matters identified by the applicants is not implicitly required.

121    It follows that the submission that the exercise by the Commissioner of the discretion to require security was affected by the jurisdictional error of failing to take into account relevant considerations must fail. The exercise of the discretion is not circumscribed by the considerations relied upon by the applicants.

Was the subjective jurisdictional fact vitiated by error?

122    Although the apparent basis of the applicants’ claims fails, they were so vaguely drafted in the applications that, on a generous reading, they might be said to have raised the issue that the errors occurred in the formulation of the reasonable belief which was the condition on which the discretion was enlivened. Certainly, in the written submissions, the applicants occasionally asserted that the belief formed by the delegate was not reasonable.

The factors which the Commissioner was required to consider for s 255-100

123    From the earlier discussion of the type of errors which might vitiate the purported formulation of the delegate’s state of mind, two issues might possibly arise in this case. The first is, did the delegate take into account all of those considerations referred to by Dixon J in Avon Downs as being “some factor which should affect his determination”; or, as Gummow J said in Eshetu, fail to consider matters which he was required to take into account. Those considerations are found within the terms of the statute and are impliedly mandated by the nature, scope and purpose for which the state of mind is being formed: see Saeed; cf Abebe at 579 [195]. The second issue is whether the Commissioner’s reasonable belief is vitiated due to a failure to have regard to one of the “relevant circumstances”, being information, material or facts germane to the formation of the belief.

124    In considering the “factors”, if any, to which the Commissioner is to have regard, it is apt to keep in mind that the reasonable belief for the purposes of s 255-100(1)(b) is that the giving of security by a taxpayer is “otherwise appropriate”. The scope and purpose of the section has been referred to above. It is a section which arms the Commissioner with the power to ensure that taxation obligations are met. Importantly, it is also a power which is intended to be used as a preventative measure to protect against the risk of that event occurring. Necessarily, it involves, in part, a measure of anticipation or assessment of the likelihood of future events. It also involves a matter of judgment or qualitative assessment of risk, which is something on which reasonable minds might differ.

125    In that context, although the factors which the legislature requires the Commissioner to consider in forming his state of mind are not expressly identified, it is apparent he is implicitly required to have regard to:

(a)    whether there is an existing or future tax-related liability: in the latter sense, the factor is whether there exists a prospect of a future tax-related liability;

(b)    whether there is a risk that the person required to give security will not comply with their obligation to pay the liability when it becomes payable; and

(c)    whether the security required will be efficacious in ensuring the obligation is fulfilled.

126    As has been mentioned above, it does not matter whether these are identified as “relevant factors” — which must be considered in formulating the stipulated state of mind — or are merely the constituent elements of the state of mind which the Commissioner must have. They each must be given consideration to fulfil the statutory function under s 255-100(1)(b).

The factors alleged by the applicants

127    It is now appropriate to ascertain whether the state of mind was validly formed on the basis that the alleged “relevant considerations” asserted by the applicants were “factors” which the Commissioner was required to take into account in the formation of his belief.

The suffering of detriment by the taxpayer

128    There is nothing in the operation of the clause which implicitly imposes any obligation on the Commissioner to take into account any potential detriment to the applicants. Other than the submissions based on an erroneous analysis of Peko-Wallsend, no substantial argument was advanced other than it was “self-evident” that such a factor should be considered. However, there is nothing in the section would necessitate that conclusion. The question is whether requiring the provision of security is appropriate (or, to use other expressions, “fitting” or “apt”) in the particular circumstances, and in that determination the central issue is whether there is a risk that the taxpayer will not comply with a tax-related liability. The requiring of the security is for that purpose.

129    It is relevant that security can be required for the due payment of future tax-related liabilities and the liability may not become due until some not insignificant time in the future. To require the Commissioner to have regard to any possible detriment which might be suffered by the taxpayer would require a substantial degree of prescience on his behalf. It would also require necessitating him inquiring of the taxpayer what their plans and financial arrangements in the future might be, and that may well defeat the exercise of the power. The potential detriment suffered by the recipient of an SBD is not a “relevant factor” in formulating the reasonable belief.

130    It can be added that there was no evidence of the actual detriment which might have been suffered by either applicant as a result of the issuing of the SBDs, and no evidence that the Commissioner was aware of any. In this latter respect, no submission was made that the Commissioner was bound to have regard to circumstances of which he was not aware.

Quantification of tax-related liability

131    There is no doubt that, in the consideration of whether there exists a tax-related liability and whether the security required in respect of it is appropriate, the Commissioner needs to consider the quantum of the amount which is or may become owing. It is not possible for the Commissioner to reach a reasonable belief that requiring specific security is appropriate unless there exists a reasonable belief that an amount is or will be owing.

132    However, the applicants’ submissions went further, and were to the effect that the Commissioner must personally undertake a calculation of the likely amount of the liability. They submitted that the mandatory “factor” requiring consideration is the amount of the tax-related liability which the repository of power has personally calculated or estimated or otherwise personally reviewed for correctness. The applicants were driven to this submission as the delegate in the present case had relied upon the calculations undertaken by experts from the audit department of the ATO. The applicant offered no analysis of the subject matter, scope and purpose of the provision from which it might be discerned that the manner by which the estimated tax-related liability was calculated was something to which the Commissioner was to have regard, and none can be readily discerned.

133    The relevant factor is the existence of a tax-related liability, and its amount. No doubt the person exercising the power is required to consider the evidence as to whether there exists such a liability, and its amount, but there is nothing to suggest that, even if they were able to, they would be required to make an assessment or calculation of it or otherwise undertake a meaningful review of it. The Commissioner has ATO officers with expertise in the assessment of taxation liabilities, and it would seem somewhat incongruous were he not to be entitled to rely upon their assessments in reaching his state of mind for the purposes of s 255-100. If the applicants’ submission were correct it would follow that where there was an existing tax-related liability, being where an assessment had issued, the Commissioner or the delegate exercising the power would be required to undertake their own assessment prior to reaching the prescribed state of satisfaction. That too would seem to lack common sense.

134    There are myriad provisions in the taxation legislation which confer power or impose obligations on the Commissioner, and it has long been held that it would be administratively impossible for him to undertake all the tasks therein personally. That is particularly so in relation to the assessment of taxpayer’s liabilities. It would not be consonant with those principles: Lee v Commissioner of Taxation (1962) 107 CLR 329, 335; O’Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1, 13; to require the Commissioner, or even the delegate exercising the power, to undertake the assessment task themselves. Indeed, on the authority of those cases, the acts of Commissioner’s officers in the course of their authority in performing their duties and making the calculations are his acts for the purposes of the taxation legislation: Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, 563. In that way the calculation of the officers of the audit department was that of the Commissioner in any event. The adoption of the conclusion of the audit department has the consequence that any relevant jurisdictional errors in those conclusions will become errors of the Commissioner: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 371.

135    This approach is reflective of that followed by Buchanan J’s in Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (2008) 251 ALR 80 at 107-108 [91]-[95]. That case concerned an application for permission to conduct mining on certain mining leases which had been refused by the relevant Minister who, in reaching his decision, relied upon briefs and assessment reports from his department. An issue before Buchanan J was whether the Minister was entitled to rely upon the conclusions in those documents, or was obliged to undertake the assessment himself. In reaching the conclusion that the Minister was so entitled, his Honour relied on observations of Gibbs CJ and Brennan J in Peko-Wallsend as to the extent to which a Minister may rely upon departmental advice in making decisions to the effect that:

(a)    in many cases, decision-makers, such as Ministers, cannot be expected to read for themselves all the relevant papers, and it is not unreasonable for them to rely upon summaries produced by the officers of their department;

(b)    if a summary omits an insubstantial or insignificant fact, no issue will arise;

(c)    but if the Minister relies upon a summary which omits a material fact which he is bound to consider and which is not insignificant or insubstantial, he will have failed to take that matter into account, and the decision will be vitiated;

(d)    the function of departments is to analyse, evaluate and précis material which the Minister is bound to consider;

(e)    the Minister may rely upon a department’s analysis, evaluation and précis of material, while relying on it to draw his attention to the salient facts; and

(f)    if the salient facts are not drawn to the Minister’s attention, the decision will be vitiated.

136    Buchanan J also referred with approval to the decision in Bushell v Environment Secretary (Bushell) [1981] AC 75 (per Diplock LJ at 95) for the proposition that it was artificial to separate decision-makers from their departmental advisers. Diplock LJ had said:

To treat the minister in his decision‐making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament’s intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister’s own knowledge, his own expertise.

137    Reference was also made by his Honour to the observations of Deane J in Sean Investments Pty Ltd v MacKellar at 372-373 to the effect that Ministers might adopt reports and recommendations without themselves examining the evidence and the factual material on which the recommendations were made.

138    Buchanan J concluded (at [95]):

The consequence of the approach which these passages exemplify is that a Minister is not obliged to attempt personal detailed analysis of matters which, in some cases, may require a high level of expertise, as they did in the present case. He is entitled to rely upon the advice and analysis of officers of his department. That is so whether expressly permitted by statute or not. In the present case the Minister was also expressly directed to take into account, amongst other things, the assessment report prepared by the Department. However, when a Minister relies upon advice, as he is entitled to do, and the advice is materially inadequate or misleading, any such failing may introduce legal error into the Minister’s decision. Whether it does so will depend upon the significance of the error or omission in the advice tendered.

139    Those conclusions are apposite in the present case. The assessment of income tax is a technical and often complex process. It would be unrealistic to require a decision-maker in the position of the Commissioner’s delegate to undertake every task which relates to the decision, to consider every piece of information, or to make every calculation. As was made explicit in Bushell, where the power is vested in the head of an organisation, who has access to its collective knowledge, experience and expertise, the Parliament can be taken as having contemplated that those resources will be utilised, with the results becoming those of the decision-maker. It may well be that an error in advice which is adopted will become the jurisdictional error of the decision-maker, but that does not inhibit reliance on the advice in the first instance.

140    It follows that, in considering the factor of whether there exists a future tax-related liability, the delegate was entitled to rely upon the calculations prepared by the audit department and was not, himself, required to undertake the calculations himself or to review them. The applicants’ submission that the personal calculation of the tax-related liability was a mandatory consideration for the purposes of exercising s 255-100 must be rejected.

141    In making that submission, the applicants relied upon the observations of the High Court in George v Rockett at 112, to the effect that, where a repository of power is required to have reasonable grounds for believing something, the repository must be aware of facts which are sufficient to induce that state of mind in a reasonable person. In that case, the Magistrate issuing the search warrant acted upon the sworn statement of the police officer applying for the warrant that there were reasonable grounds (at 122), and did not independently form his own state of mind as to the reasonableness of the grounds. The result was that the Magistrate lacked power to issue the warrant.

142    The applicants’ reliance on George v Rockett was misplaced. Here, it was the delegate who reached the state of mind that requiring the giving of security for the amount of $6.5 million from Fastbet and $1.2 million from Holmes Road was appropriate. He did so partly based on calculations undertaken by officers of the ATO who were in the audit department, who had undertaken an analysis of the likely revenues, profits and taxes from the respective projects. Those officers were the Commissioner’s agents performing their work in the ordinary course of the fulfilment of their duties. In that sense they were not separate to the entity exercising the power, as was the case in George v Rockett. In any event, the amount so calculated was evidence of the future tax-related liabilities, on which the delegate was entitled to act. The delegate did not merely act on some third person asserting that they had a reasonable belief that the giving of the security was appropriate. As part of that process he was entitled to rely upon the analysis of other ATO officers as to the amount of the future liability.

143    The result of the foregoing is that there was no factor which the delegate was required to consider of the nature alleged by the applicants. The relevant factor was whether the tax-related liabilities existed, and in each case a reasonable belief was formed that they did. In reaching that conclusion the delegate was not required to undertake or review calculations himself and was entitled to rely upon the conclusions of the ATO officers and adopt them as his own or as evidence of the amount of the liabilities.

Existence of risk of non-fulfilment of tax-related liability obligations

144    The applicants submitted that the delegate was required to consider the “ameliorating matters”; being matters favourable to Ms Bazzo and her companies, when considering exercising the discretion under s 255-100. That submission is not correct, as has been identified above. However, in the formation of any belief as to whether requiring the applicants to give security for future tax-related liabilities was appropriate, the delegate was required to consider the “factor” of the risk that the applicants would not comply with their obligations. In terms of the observations of Dixon J in Avon Downs, that is obviously a factor which it would be an error to exclude from consideration, as it is one which should affect the determination. There is no separate factor, being whether there was conduct on the part of the taxpayer which might mitigate the existence of any such risk.

145    Nevertheless, if the delegate failed to refer to essential, important or significant evidence relating to the question of “risk”, it would follow that no “real or genuine consideration” was given to that mandatory factor. In this matter, if there were such a substantial matter which might mitigate the risk of the non-payment of tax liabilities by the applicants and regard was not had to it, a conclusion might be drawn that a relevant factor had not been considered. The omission would indicate a failure to perform the statutory task. However, whether a circumstance which was not considered had that characteristic will depend upon the particular circumstances of the case.

Was the Commissioner’s reasonable belief properly formed?

146    In the light of the above it falls to be considered whether the gravamen of any of the applicants’ complaints (although wrongly directed to the exercise of discretion) can be said to have vitiated the delegate’s reasonable belief that the giving of the security by Fastbet or by Holmes Road was appropriate.

The Commissioner’s decision

147    In the SBD requiring the provision of security from Fastbet, the Commissioner identified the several instances in which Ms Bazzo, and companies of which she was a director, had failed to meet their tax-related liabilities. He noted amounts which were considered to be outstanding and the several occasions on which Ms Bazzo’s companies had been placed in external administration with large outstanding tax liabilities. He also noted that Ms Bazzo was being prosecuted in respect of two taxation offences. He then recited as follows:

The Commissioner believes that this requirement to give security is appropriate because there is a risk that the Company will not pay the $6,895,222 of tax-related liabilities which it is expected to incur from its property development activity.

That perceived risk arises because the director of the Company, Tina Bazzo, has demonstrated a disregard for some important tax obligations incurred by companies under her control and by her in her personal capacity, including the obligation to lodge returns on time and the obligation to pay taxation liabilities due to the Commissioner of Taxation.

148    The Commissioner’s reasons provided pursuant to s 13 of the AD(JR) Act largely reflected the considerations which appeared in the SBD although, in parts, greater detail was provided in the reasons, by way of elaboration. Those reasons for reaching the conclusion that requiring security was appropriate included in the following matters:

(a)    Fastbet was engaging in an enterprise which involved the development of its landholdings and eventual sale of the subdivided allotments;

(b)    Ms Bazzo had been a director and shareholder of Fastbet since 23 July 2007;

(c)    Ms Bazzo owed in excess of $13 million in personal taxation liabilities;

(d)    Ms Bazzo was being prosecuted in relation two alleged taxation offences;

(e)    Ms Bazzo had been a director of a number of companies which had entered into insolvency administrations with unpaid taxation liabilities incurred during her directorship, being Gucce Holdings Pty Ltd, owing $73,669,171.09; Gundaroo Investments Pty Ltd, owing $4,950,017.02; Ankfar Pty Ltd, owing $1,835, 034.45; Parliament Place Pty Ltd, owing $2,169,552.12; and Paramount View, Pty Ltd, owing $724,196.39;

(f)    The liquidators or administrators of several companies had made comments suggesting Ms Bazzo was potentially liable for “insolvent trading” and other misconduct in the operation and management of some of the companies;

(g)    Ms Bazzo may have engaged in inappropriate conduct when dealing with the Commissioner and in causing her companies to divest themselves of assets prior to external administration; and

(h)    Ms Bazzo was the director of more than 10 companies which had outstanding taxation lodgements.

149    After identifying the above matters, the Commissioner stated the following:

In making my decision, I relied on the notification from the audit team that the net future tax liabilities of Fastbet Investments Pty Ltd as a result of the development and sale of approximately 570 blocks of land was expected to be $6,895,222. In my experience, the audit team’s calculations of likely net future tax liabilities tend to be a reliable, but conservative, estimate of net future tax liabilities. Given the number of anticipated lots, the expected net future tax liability equated to approximately $12,000 per lot, which appeared reasonable to me.

In making my decision to issue the Notice, I held the belief that there was a significant risk that Fastbet Investments Pty Ltd would not pay the $6,895,222 of tax­ related liabilities which ATO auditors had estimated that Fastbet Investments Pty Ltd would incur from its property development activity.

This belief was based on my consideration of the non-compliant behaviour of Ms Bazzo and more than fifteen companies of which Ms Bazzo currently is (or previously had been) a director, evidence of which was outlined in the submission of Cong Nguyen, dated 19 September 2017.

Based on my belief that there was a significant risk that Fastbet Investments Pty Ltd would fail to pay the anticipated $6,895,222 of tax-related liabilities, I concluded that it was appropriate that I should seek to mitigate that risk by issuing the Notice to require the provision of $6,500,000 of security.

I recognised that if I were to acquire the security in the form of a cash deposit, it might constitute an unreasonable burden on Fastbet Investments Pty Ltd’s cash resources. Accordingly, I concluded that the appropriate form of security I should seek would be a mortgage over Fastbet Investments Pty Ltd’s real estate assets.

150    The above statements show that the Commissioner’s conclusion that there was a significant risk that Fastbet would not meet its anticipated future tax-related liabilities in the sum of $6,895,222 was founded upon the substantial history of non-compliant behaviour of Ms Bazzo and of more than fifteen companies of which she was then currently or previously a director. The bulk of the non-compliant behaviour was the recurrent failure of Ms Bazzo and her companies to pay their tax. He, therefore, considered it was appropriate to mitigate the risk that Fastbet too would not meet its payment obligations, by requiring the provision of security in the amount of $6,500,000. He also considered that requiring the security in cash would be an undue burden on Fastbet, with the result that a mortgage over real property was appropriate. Importantly, the reasons demonstrate that he took into account the factors of the existence of a tax-related liability, the existence of a risk that Fastbet would not comply with its obligations to pay that tax-related liability, and that requiring the security would reduce the risk of that non-performance. In this way the delegate appeared to take into account those “factors” which the Act impliedly required. Put a different way, the delegate turned his mind to the constituent elements of the reasonable belief in s 255-100(1)(b).

151    It is not unimportant to note that the applicants did not actually contest the correctness of the matters relied upon by the delegate and referred to in the SBDs and reasons. Instead, it was asserted that there were other facts to which the delegate ought to have had regard and that the alleged failure to do so had the consequence that the exercise of power was invalid. The evidence at the hearing of the applications focused attention on whether regard had been had to these other matters, and that tended to distract attention from the potency of the matters to which the delegate had given significance. A brief perusal of them reveals the occurrence of numerous defaults in the observance of taxation obligations by Ms Bazzo and of companies over which she had control and, in some cases, in substantial amounts. These defaults were persistent, recurrent and had continued over a number of years. On any view of the matter, those facts revealed, at the very least, the existence of a substantial risk that any company controlled by Ms Bazzo engaging in business would fail to meet its taxation obligations when they fell due.

Evidence arising during the trial

152    A feature of this matter was that the applicants cross-examined the delegate about his knowledge of matters surrounding the activities of Ms Bazzo and her companies and, in particular, whether in reaching his decision he had regard to the “ameliorating matters”. In the course of that cross-examination, Mr Hack QC put to the delegate that was aware of the existence of a variety of pieces of evidence relating to the compliance by Ms Bazzo and her companies which may have been regarded as militating against the decision to require the giving of security. In general terms, the delegate indicated that he was generally aware of these matters at the time. He also said that he had relied upon the submission which had been prepared for him by ATO officers and on his other knowledge (Transcript p 50 lines 35-40). It was put to the delegate that he had been generally aware of the matters in the submission made to him and that he had been dealing with the taxation affairs of Ms Bazzo and her companies for some time. In his affidavit of 28 June 2018, Mr Burns deposed that he had been involved in an ATO project addressing the non-compliance with taxation obligations by Ms Bazzo and her companies since 2010, pursuing more than $300 million of unpaid tax liabilities owed by more than 150 related entities. He identified that only some of the examples of non-compliance were relied upon in the submission made to him for the purpose of issuing the SBDs. He added that, over time, his team at the ATO had issued numerous notices to Ms Bazzo and to companies controlled by her. There is no doubt that at the time of issuing the SBDs the delegate was intimately aware of the conduct of Ms Bazzo and her companies in relation to their taxation obligations.

153    During cross-examination of the delegate it was put to him that he had not had regard to the several matters set out in paragraphs of the 3FAOA, being the “ameliorating matters”, when making his decision to issue the SBD to Fastbet. The delegate denied those propositions and thereby indicated he had considered them. He added that he regarded them as being immaterial in the circumstances. In the light of the submissions made by the applicants it is necessary to consider the course of evidence in this respect in some detail.

154    It was put to the delegate that he did not have regard to Fastbet’s payment or compliance history in reaching his decision. That was denied (Transcript p 52 lines 24-25) by the delegate even though he did not make any finding of fact about that issue. In the course of his evidence, he demonstrated a detailed knowledge of whether Fastbet had lodged its returns on time in the years from 2012 to 2016. It also appears that he was aware that, as at September 2017, Fastbet’s GST returns and payment compliance record was not perfect but not as bad as some. It was put to the delegate that he did not have regard to Fastbet’s payment history, although that was denied:

So is this the position, then: on 19 September 2017, in considering whether to exercise the discretion to issue a security bond demand, you paid no regard to the fact that Fastbet had a good payment and compliance history?---That is not the position, no.

155    The delegate also agreed that, as at September 2017, he was aware that no adverse decision had been made in relation Fastbet’s documentation or record-keeping. He further acknowledged that, at the time of making the decision, he was aware that Ms Bazzo’s personal tax lodgements were up to date, even if they had been late on occasion. In relation to that issue it was put:

MR HACK: I’m putting to him the proposition that, in considering the exercise of that discretion, you paid no regard to the fact that Ms Bazzo’s personal returns had been lodged?

THE WITNESS: Okay. And I am disagreeing with that proposition.

156    In relation to the delegate’s reliance on Ms Bazzo’s outstanding taxation liability of $13 million, it was put to him that:

In considering whether to exercise the discretion to issue the security bond demand you took into account the fact that she had claimed a personal tax liability in excess of $13m but paid no regard to the fact that she was contesting that liability in the tribunal. Do you agree with that proposition?---No, I do not agree with that proposition.

157    Under cross-examination, the delegate also gave evidence that he was aware, on the date of the determination, being 19 September 2017, that Ms Bazzo had entered into a Deed with the Commonwealth under which she had covenanted to pursue her objection proceedings in the Tribunal in good faith, with diligence and in a timely manner. It appeared that the Commonwealth also held security for Ms Bazzo’s performance of her obligations. In relation to that issue it was put to the delegate that:

At that time you paid no regard to the fact that she had agreed in terms of the secure deed to prosecute those proceedings diligently?---Again, I’m not sure that’s a question but I – I – I disagree with - - -

Do you agree?---I disagree with that proposition, yes.

158    Subsequently, the delegate gave evidence that he was aware that Ms Bazzo had defaulted on her obligations in that deed and that he had served notices under it which had not been complied with, and, for that reason, he did not give the circumstances of her entry into it much significance. He also gave evidence that he considered the security given by Ms Bazzo to support the performance of her obligations in the deed was worth less than had been represented and, in the context of his deliberation, that issue was of little significance.

159    Prior to the decision to issue the SBD to Holmes Road, it is apparent that there were some delays in the progress of the Tribunal proceedings in which Ms Bazzo contested her personal liability. It was put to the delegate that the Commissioner was delaying those proceedings, and that he did not take that into account. It must be said that this was not a matter raised in the Ground 3 of the 3FAOA. All that was added to that paragraph for the purposes of the Holmes Road proceedings was that a letter had been written by the Commissioner’s solicitors on 12 December 2017, advising Ms Bazzo’s solicitors that the Commissioner was not in a position to file evidence in the Tribunal. That letter raised issues about documentary evidence in 200 boxes relating to the hearing which, apparently, had been subject to claims for privilege which were being determined by an independent barrister. The delegate gave evidence that he was aware of the circumstances relating to the Tribunal proceedings and the letter having been sent. He said that he did not regard it as a material fact to which he was required to have regard in the exercise of the power under s 255-100.

160    As appears in the reasons, the delegate relied upon the fact that Ms Bazzo was being prosecuted for two alleged taxation offences. It was put to him that neither the seriousness of the offences nor the fact that Ms Bazzo was defending the charges warranted consideration by him (presumably in the decision to require security). He denied that, and later, in re-examination, he indicated, albeit in a general way, that he had regard to those matters.

161    It was also put to the delegate that he was aware at the time of making his decision that some of Ms Bazzo’s companies were wound up prior to their objections to taxation assessments being determined. He agreed that he was aware of that. He also agreed that he was aware of the objections which had been allowed by the Commissioner and those which were not. It was put to the delegate that he did not take these matters into consideration as follows:

In considering whether to exercise that discretion you had regard to the associated entities that Mr Nguyen had listed in his submission?---Yes, I did.

But paid no regard to the fact that those liabilities had been disputed?---I disagree with that proposition.

You paid no regard to the fact that the companies where the taxes had been disputed had been wound up by the Deputy Commissioner for non-payment of the disputed debts?---I also disagree with that proposition.

162    It was also put to the delegate that he was aware that some of Ms Bazzo’s companies were assessed as being alternatively liable for the same indebtedness and that this was not taken into account:

You paid no regard to the fact that some at least of the claimed tax debts were based on alternative assessments?---Again, I disagree with that proposition.

163    The delegate was challenged to the effect that, in making his decision to issue the SBD, he had not taken into account Fastbet’s payment history in relation to it tax obligations. He denied that and said he did consider that relevant, and that he was aware that Fastbet was actually in credit when the decision was made, but that his main concerns were with future tax-related liabilities.

164    By paragraph 3.11 of the Fastbet 3FAOA and 3.10 of the Holmes Road FAOA, it was alleged that the delegate took into account that, in a report by an administrator of one of Ms Bazzo’s companies, Paramount View Pty Ltd, it was identified that there were grounds for an insolvent trading action to be brought against Ms Bazzo, but did not have regard to the fact that no action was brought against her. This was not put directly to the delegate under cross-examination. Instead it was put that he did not mention in his reasons that the administrator had also flagged the possibility that Ms Bazzo may have a defence to any such claim. Whilst, in her affidavit of 1 June 2018, Ms Bazzo gave evidence that neither the administrator nor the subsequent liquidator commenced proceedings for breach of directors duties, it was not suggested to the delegate that he was aware of this.

165    The applicants sought to discredit the delegate on the basis that he had failed to mention in his affidavit filed on 24 May 2019 the matters which, in the course of cross-examination, he claimed he had taken into account. It was put to the delegate that the May 2019 affidavit had been filed shortly after Fastbet had served its second further amended originating application such that he would have been aware of the allegations that he ought to have had regard to the matters referred to in Ground 3 of the application, but did not. The delegate agreed that the matters put to him in cross-examination were not included in his affidavit.

166    It was not put to the delegate that his evidence, given in answer to questions in cross-examination, that he took the several identified matters into account when making his decision, was untrue.

167    In re-examination, the delegate identified that he regarded the factors mentioned above as being of little weight to his decision to require the giving of the security and that in his statement of reasons he only referred to those “things that were particularly material to [his] decision” and that the matters raised by the applicants to “had little bearing on [his] decision”. He said of the matters which were put to him in cross-examination:

In the broad scheme of things, the very significant factors that I took into consideration, and which I did mention in the statement of affairs, these things by contrast were of very little consequence. I gave very little weight to them in making my decision …

168    Subsequent to that evidence the applicants objected to re-examination on the matters which were put to the delegate in cross-examination. It was submitted that, although in the cross-examination it was put to the delegate that he was aware of the various pieces of evidence and that he did not refer to them in his statement of reasons, it was not a line of questioning which raised the issue of whether they were matters which were taken into account. It was submitted that the delegate had more than sufficient time to raise these matters in his affidavit filed in the action but had failed to do so. The objection, albeit somewhat late given the evidence which by that time had been adduced, was overruled. The delegate was clarifying his answers to what had been put to him in cross-examination, namely that he had taken the several matters into account when making his decision. The objection to the re-examination was based on an erroneous foundation that it had not been put to the delegate that he did not have regard to the various matters when making his decision. As the preceding discussion reveals, such matters were put to him and his answers were to the effect that he did have regard to them.

The applicants’ submissions about the considerations of the delegate

169    Although it was not put to the delegate that his answers to the questions in cross-examination were untrue or mistaken, the applicants submitted that his evidence that he had regard to the several matters raised should not be believed. Whilst it was acknowledged that the Court could be satisfied that he was aware of the various matters, it was submitted that he did not “intellectually engage” with the matters as part of the decision-making process.

170    The applicants’ submission, that the delegate’s evidence given under cross-examination and confirmed in re-examination cannot be acted upon, should not be accepted. The delegate gave his evidence in an honest and forthright manner and, in doing so he exhibited a detailed understanding of the affairs of Ms Bazzo and her companies. His evidence established that he had such knowledge at the time he made the decisions in relation to Fastbet and Holmes Road. There was nothing in the manner in which he gave his evidence nor in the content of it which suggested that he was not merely attempting to tell the truth about the matters put to him. Whilst it is true that he, occasionally, indicated that his memory of some matters was not as clear as it could be, I accept that was his honest opinion and he was in no way attempting to obfuscate. In substance, he should be accepted as having considered the identified circumstances of Ms Bazzo and her companies in relation to their numerous interactions with the Commissioner.

171    It should also be said that the delegate’s evidence in this respect was consonant with the evidence in his affidavits to the effect that he was very well acquainted with the circumstances of Ms Bazzo and her companies, a knowledge he displayed while giving evidence.

172    It was somewhat unfortunate that it was not put to the delegate that his evidence, that he had regard to the several enumerated circumstances, was not true or was not an accurate recollection. Similarly, it is unfortunate that nothing was to put to him which would suggest he had an interest in misrepresenting the matters he took into account. His responses to such questions would probably have been helpful in considering the applicants’ submission that his evidence should not be believed.

173    The applicants’ written submissions (at paragraph 64) that the Court should “reject the late attempt to contend that the matters relied upon by Fastbet and Holmes Road were considered but given little weight in the decision making process” should not be accepted. That submission relied on the fact the delegate had sworn an affidavit on 28 June 2018 in which he deposed to having read Ms Bazzo’s affidavit of 1 June 2018 where she refers to a matter concerning the deed into which she had entered, but he made no attempt to identify why he had not mentioned it in his affidavit or why that matter did not appear in his statement of reasons. The answer may well have been that the delegate’s affidavit focused upon the issues which were live in the proceedings at the time he executed it. At that point in time there was no issue (in the specific terms now raised) in either application relating to the alleged failure to take into account a matter or circumstance in formulating the required state of mind. They contained myriad other allegations, mostly misguided, but no allegation of the nature now relied upon. No inference flows from the fact that the delegate did not address the issue in that affidavit.

174    Somewhat more concerning is the delegate’s affidavit sworn on 24 May 2019. It was sworn two weeks after the applicants dramatically changed their case by abandoning most of that which had preceded it and adding the new grounds numbered 3 to 6. It is Ground 3 which alleges the failure to consider the several “ameliorating matters”. The delegate’s subsequent affidavit focused attention on the extensive new allegations in Ground 8 in the Fastbet action, concerning the demands made by the Commissioner for payment in exchange for the release of mortgages granted by Fastbet over various parcels of real estate. In it the delegate did not revisit the manner in which he had undertaken the task of determining to require the applicants to give security. Whilst that is unfortunate, it does not imply that the things which the delegate said under cross-examination were late inventions. I accept that an omission of that nature gives one cause to pause, however, it is a large step to accept that, by itself, it evidences the contrary of the evidence the delegate gave in the witness box. As mentioned above, the delegate gave his evidence in an honest and professional and responsive manner, and his evidence displayed that he was exceptionally well acquainted with the taxation affairs of Ms Bazzo and her companies such that he was in a position to draw upon that knowledge when forming a reasonable belief under s 255-100.

The written reasons provided for the decision

175    Both parties made submissions with respect to the written reasons provided by the delegate pursuant to s 13 of the AD(JR) Act, although there was no ground of review that they were insufficient. As identified above, the reasons set out a significant number of defaults by Ms Bazzo and her companies as being the matters on which the delegate relied for reaching the conclusions which he did. Whilst the reasons themselves are brief, perhaps more brief than they could have been, they are explicit in identifying the matters on which the decision-maker relied and the conclusions which he drew from them.

176    The applicants relied upon the High Court’s decision in Yusuf (which concerned a cognate provision to s 13, being s 430 of the Migration Act 1958 (Cth)) to the effect that obligation of a decision-maker to give reasons includes the obligation to set out findings on “material facts”, being those findings which the decision-maker actually made. The material facts are those on which the decision-maker actually relied in reaching their decision. In that way a person dissatisfied with a conclusion can identify with certainty what reasons the decision maker had for reaching their conclusion and what was relied upon in reaching it. The absence of a reference to a matter may give rise to an inference that the decision-maker failed to consider a relevant consideration: Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 at 168 per Davies J and the authorities collected by Bromberg J in Alexander v Australian Community Pharmacy Authority (2010) 233 FCR 575, 587 [56]. In Yusuf, McHugh, Gummow and Hayne JJ (at [69]) also identified that the reasons provide an indication of the matters which were considered material:

Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

177    It follows that the reasons will tend to inform of the considerations on which the decision-maker relied when reaching their determination. To a similar effect is the decision of Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, where Perram, Murphy and Lee JJ said (at [76]) in relation to the written reasons of a decision-maker:

The written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account. If something is not mentioned it may be inferred that is not been considered or taken into account: Acts Interpretation Act 1901 (Cth) s 25D; s 501G of the Act; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [5], [37] and [69]; NBMZ v Minister for Immigration & Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [16] per Allsop CJ and Katzmann J. Whether it is appropriate to draw such an inference must be considered by reference to the facts of each particular case and the Minister’s reasons as a whole. The reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error.

178    Nevertheless, the absence of a reference in reasons to a specific matter does not establish that regard was not given to it. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court (French, Sackville and Hely JJ) relevantly stated at [46]-[47]:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason …

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

179    The “rule” or “principle” identified in the above authorities is one of an inference to be drawn from the content of the written reasons, but it is no higher than that. There may well be other statements in the reasons which indicate that matters other than those expressly referred to were considered and any inference of an absence of consideration dispelled. Indeed, there may be other evidence about what the decision-maker considered, as there was in this case. Here, it was elicited in the course of cross-examination of the delegate, who acknowledged that not all of the matters to which he had regard were mentioned in the reasons. His evidence was to the effect that he only made mention of those factors or the evidence which he considered were significant or material to the outcome of his decision. He did not mention those which were immaterial, in the sense of being of little weight even though had regard to them. They included most of those matters asserted in Ground 3 of the respective applications. Whilst at the commencement of the hearing there may have been doubt whether those other matters had been taken into account, by the end there was none. As the applicants’ attack on the delegate’s credit has failed and his evidence should be accepted, the totality of the reasoning process appears from the delegate’s reasons, his affidavit and his oral evidence. In that respect, many of the allegations in Ground 3 of the 3FAOA and the FAOA, that regard was not had to the specific matters, fail as a matter of fact.

Summary of conclusions as to the circumstances allegedly not considered.

180    In summary, the following conclusions can be made with respect to the circumstances to which it is alleged, in Ground 3 of the 3FAOA in the Fastbet proceeding, the delegate did not have regard:

(a)    As to paragraph 3.1, the delegate did have regard to the history of Fastbet’s lodgement of tax returns and that at the time of the making of the decisions no amount of income tax was outstanding. This circumstance was of minimal relevance in any event and any failure to consider it would not have been indicative of a failure to perform the statutory task. The question was not whether the company had complied with its taxation obligations at that point in time. It was whether it would do so when it received income from the project and the future tax-related liability crystallised.

(b)    As to paragraph 3.2, the delegate did have regard to the fact that Fastbet had a GST credit when the decision was made. Again, this issue is of minimal importance, as the relevant time to be considered is when the amounts in question become payable. The project being pursued by Fastbet was the development of land and its subsequent sale. As was mentioned during the hearing, the profit from such ventures only arises towards its completion. In this respect, Fastbet’s prior compliance with its obligations was not an essential, significant or important circumstance.

(c)    As to paragraph 3.3 (which only appears in the Fastbet 3FAOA), the delegate had regard to the audits conducted with respect to Fastbet and the results of the same. Again, these circumstances are temporally irrelevant or of minimal relevance to the issues to be considered in relation to the issue of an SBD for a future tax-related liability. The issue was whether Fastbet would meet its taxation liabilities when it commenced to make profits from the development it was undertaking, not whether to that point in time it had met its obligations.

(d)    As to paragraph 3.4, the delegate had regard to the fact that Ms Bazzo did not have any outstanding personal lodgement obligations in relation to her taxation affairs. It might be said that this issue must have been of little weight in the circumstances. It was not an essential, significant or important issue in the sense that failure to consider it would be indicative of a failure to perform the statutory function. The central question was whether, when the time for payment arises, the companies will meet their taxation obligations. Whilst the fact that Ms Bazzo and her companies were often late in lodging returns had relevance to their compliance generally, the mere fact that Ms Bazzo’s returns were then up to date could not weigh heavily in the circumstances and nor was it an essential matter requiring consideration.

(e)    As to paragraph 3.5, the delegate did have regard to the circumstances of the proceedings in the Administrative Appeals Tribunal between the Commissioner and Ms Bazzo in respect of default assessments made against her for the years ending 30 June 2009, 2010 and 2011. He was aware that under a deed between Ms Bazzo and the Commissioner, the former had covenanted to prosecute those proceedings in a timely manner and had provided security for the payment of the alleged liabilities. He was also aware that Ms Bazzo had defaulted in the performance of the terms of that deed, and the securities held by the Commissioner were worth less than he had originally believed. It was not suggested to the delegate that he was in error about these facts. To the extent to which this issue was advanced by Fastbet it was also of minimal relevance and not one in respect of which it could be said the failure to have regard to it would vitiate the delegate’s reasonable belief. Indeed, in the circumstances where Ms Bazzo had failed to comply with her obligations under the deed and the Commissioner had served notices of default which were not remedied, the circumstances surrounding the deed soundly echoed the recalcitrant nature of Ms Bazzo’s attitude towards her taxation obligations and weighed, if anything, in favour of issuing the SBD.

(f)    As to paragraph 3.6, the delegate had regard to the circumstance that Ms Bazzo was defending the charges being brought against her in respect of certain taxation offences. Again, the delegate was entitled to give little weight to that fact. Whilst, in the criminal courts, the presumption of innocence is necessary and appropriate, the context of the deliberation under s 255-100 is entirely different. There, the Commissioner, whose complaint in all likelihood caused the prosecution to be commenced, is entitled to regard the fact that his officers or the prosecutorial officers of the Commonwealth have considered the conduct in question so serious and the evidence in support so weighty that a prosecution has been commenced as significant in the formation of the required state of mind. It may be that Ms Bazzo has defended the allegations, but that did not counterbalance, as it were, the force of the fact of the bringing of charges. Again, it was not a circumstance the omission to have regard to would vitiate the jurisdictional fact.

(g)    As to paragraphs 3.7 to 3.10, the delegate had regard to the fact that the several companies controlled by Ms Bazzo were wound up before their objections to the assessments against them were determined, and that some of the assessments were in the alternative. It was clear that the delegate had a detailed knowledge of the taxation affairs of Ms Bazzo and of the companies which she had controlled. Yet again, these issues are somewhat minor in the scheme of the matters weighing in favour of issuing the SBDs, and the failure to consider them would not vitiate the existence of a reasonable belief. The fact that assessments had been made by the Commissioner against the several companies would strongly suggest that he had concluded the assessed amounts were owing. It was not denied that, once the assessments issued, the amounts became owing. The applicants’ submissions in relation to this issue tended to treat the assessments made in respect of Ms Bazzo’s companies as some form of preliminary opinions expressed by the Commissioner which would not crystallise into a liability until the objections had been determined. That is not the case. None of the grounds of objection raised by the companies were identified as having any merit which suggested that they would be in any way decisive or determinative or even meritorious. The issue raised was merely that objections had been made but that the companies were wound up before those objections were heard. The delegate also took into account the fact that some of the assessments against the companies were in the alternative. Although that may have been relevant to the cumulative taxation liability of the companies, it was of minimal significance in the present matter.

(h)    As to paragraph 3.11, the assertion that the delegate failed to have regard to the fact that no action was brought against Ms Bazzo for insolvent trading whilst a director of Paramount View Pty Ltd was not really advanced by the applicants at trial. A different point was raised in cross-examination, to the effect that the delegate did not include in his reasons or affidavits any mention of the fact that the report of the administrators of that company had mentioned the possibility that Ms Bazzo might have a defence. Although that is not a matter raised in any ground in the applications, he acknowledged that no such statement appeared. Relevantly, there was no evidence that the delegate was aware of the fact of which the applicants assert he ought to have been aware, that no action had been brought against Ms Bazzo by the liquidator of Paramount View. That being so, it is not a matter which the delegate was required to take into account. In any event, it was minor and lacking any weight, and the failure to consider it would not vitiate the delegate’s reasonable belief.

181    As previously identified, the parties and, in particular, the applicants, advanced the case that the evidence applicable to Fastbet, including the cross-examination of the delegate, was applicable to Holmes Road. Save in a few respects, no substantial distinction was made in the submissions in this respect and, in an unusual way it seems that the parties treated the cross-examination in relation to Fastbet as applicable to Holmes Road. The relatively few minor differences were as follows:

(a)    The delegate had noted that Holmes Road had failed to lodge its taxation returns for the income years ending 30 June 2016 and 2017. In that respect, the complaint that the delegate had failed to have regard to the fact that Holmes Road had been compliant with its taxation returns was misconceived. That “fact”, which Holmes Road alleged had not been considered, did not exist.

(b)    Similarly, Holmes Road had failed to lodge its May 2016 Business Activity Statement, and its allegation that the delegate failed to have regard to the fact that all of its “GST returns had been lodged as and when required” was also erroneous. Again, the alleged circumstance did not have to be considered by the delegate.

(c)    By the time of the decision to issue the SBD to Holmes Road, Ms Bazzo’s outstanding taxation liabilities as asserted by the Commissioner had increased to $14,285,589.30. That was a significant factor taken into account by the delegate.

182    An added issue in the Holmes Road claim was in relation to the proceedings commenced by Ms Bazzo in the Administrative Appeal Tribunal, and the delay pending the resolution of certain questions relating to 200 boxes of documents. The delegate did not have regard to that fact, but there was no error in him not doing so. It was trivial in the scheme of the matter, and the failure to have regard to it could not be reflective of a failure of the delegate to address the considerations required for the formation of the necessary state of mind. Indeed, the reliance on it merely demonstrates the applicants’ methodology of sifting through all the facts surrounding the taxation affairs of Ms Bazzo and her companies, identifying facts or circumstances which are only remotely and indirectly connected to the issues, and complaining that regard was not had to them. If their submission that such omissions by the Commissioner would invalidate the required state of mind were correct, the section would surely be rendered nugatory.

183    It should be observed that the error alleged in the FAOA in relation to this issue was that the delegate did not have regard to the fact that the Commissioner’s solicitors had informed the applicants’ solicitors that he was not in a position to file evidence in the proceeding before the Tribunal. However, as is indicated in the above consideration of the evidence adduced at trial, the matters put to the delegate were somewhat different. In the circumstances, the inconsistency is irrelevant. Whether the alleged circumstance was the inability of the Commissioner to file evidence or the sending of a letter in relation to the same, it was not a matter which, if not taken into account, would vitiate the jurisdictional fact. It was tangentially relevant at best.

The correctness of the delegate’s approach

184    Section 255-100 requires that in reaching the stipulated reasonable belief which is the jurisdictional fact, the Commissioner must take account of, in the sense of giving real and genuine consideration to, the “factors” or considerations which might influence his decision. They have been identified above at [125]. The written reasons reveal that the delegate took into account those factors in reaching his decision, in that he turned his mind to each of the constituent matters which underpinned his reasonable belief.

185    Further, the Commissioner’s obligation to have regard to “all relevant circumstances” only necessitates that he give attention to the circumstances which are relevant to those “factors” which he had to consider. In this case that included matters which were germane to the risk that Fastbet would fail to meet its obligations with respect to the future tax-related liability. The weight he is to give to those “relevant circumstances” is necessarily a matter for him, and the legislation prescribes no specific obligation other than as identified. On the basis of the evidence as it was by the hearing’s end, it is apparent that he had regard to all the relevant circumstances including those identified by the applicants which fall within that description. In particular, he had regard to those circumstances identified by the applicants which were, in effect, surrounding circumstances of or incidental to the matters which he had considered were significant.

186    Although he may not have taken into account or had regard to the terms of the letter of 12 December 2017 concerning the Tribunal proceedings, it was not a circumstance the consideration of which was essential, significant or important to the fulfilment of the statutory function.

187    The necessary consequence of the above is that the delegate did not err in reaching the reasonable belief that the requirement that Fastbet give the identified security was appropriate.

Materiality of alleged omissions

188    No submission was made that if the matters not specifically referred to in the delegates’ reasons were not considered by him there was a real possibility of a different outcome. The applicants’ submissions were advanced on the basis that the failure to consider the factors resulted, ipso facto, in some form of jurisdictional error. That was based on the erroneous understanding of the operation of the section and the nature of the errors which might vitiate it.

189    Even if it were the case that a fact was a “relevant circumstance” which ought to have been taken into account and was not, it is not likely that the reasonable belief would be vitiated if the omission was not material: cf Hossain at [27].

190    Here, in light of the significant risk that the applicant companies would not comply with their tax obligations, it would require a failure by the delegate to consider a countervailing circumstance of a most unusual nature for it to have had the potential for a different outcome. The history of non-compliance with taxation obligations by Ms Bazzo and her companies was of such significance and duration it is likely that the appropriateness of requiring Fastbet and Holmes Road to provide security in relation to their future tax-related liabilities from their respective businesses was almost obvious. In that context a number of the matters relied upon by the applicants as having not been considered were trivial at best. That was particularly so in relation to the complaint that regard had not been given to the fact that several companies had been wound up before their dispute of their assessments had been determined. In those cases the companies’ liability had crystallised but they failed to fulfil their taxation obligations, and there was not a scintilla of evidence to suggest that any ground of objection had the slightest merit.

191    It follows that even if the matters relied on by the applicants were not considered, their relevance was so insignificant it could not be said that there was a real possibility of a different outcome had reference been made to them. Any omission to consider some or all of the alleged “relevant circumstances” could not be said to be a material error in the formation of the delegate’s reasonable belief.

An alternative construction of s 255-100

192    It is possible that the construction of s 255-100 which has been relied upon above is overly generous to the applicants. The alternative construction is that the reference to “all relevant circumstances” is a reference to the “factors which would affect the decision”, in the sense used in Avon Downs. If that were so, it would follow that the only mandatory factors which the Commissioner was required to consider were: the existence of the tax-related liability, the existence of risk the liability will not be met and that the security required is effective for the purposes of lessening or removing that risk. Those “factors” were considered in the present case, and there was no ground of review suggesting to the contrary.

Conclusion with respect to Grounds 3 to 6

193    It follows that Grounds 3 to 6 of Fastbet’s application fail. The grounds were misdirected to the exercise of discretion, whereas they ought to have been directed to the formation of the “reasonable belief”, as did the occasional submission. However, even if they were considered as errors which were said to vitiate the subjective jurisdictional fact of the Commissioner’s reasonable belief, they would not succeed. To a large extent the matters enumerated in Ground 3 of the 3FAOA and the FAOA were taken into account by the delegate. Even had they not been, no error would have occurred, as they were not within the scope of the expression “all relevant circumstances” in that they were not matters the consideration of which was essential, significant or important, in the sense that a failure to consider them would have indicated that the delegate had not performed the statutory task. Additionally, in the circumstances of the present case, where the circumstances relied upon by the delegate weighed so heavily in favour of requiring the giving of security, it cannot be said that, had they been considered, there was a possibility of a different outcome.