Federal Court of Australia

McEwan v Office of the Australian Information Commissioner (No 2) [2022] FCA 1488

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondents’ costs of and incidental to the proceeding, to be fixed in a lump-sum by a registrar if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Ms Julie McEwan, formally known as Ms Julie Van Eps, is aggrieved by a decision of the Australian Information Commissioner (Information Commissioner), the first respondent, not to proceed under the Privacy Act 1988 (Cth) (Privacy Act) with an investigation into a complaint made by her in relation to certain disclosures to third parties made by officers within the Australian Taxation Office.

2    The nature of Ms McEwan’s complaint, together with the reasons of a delegate of the Information Commissioner for not proceeding further with Ms McEwan’s complaint are set out in a letter dated 6 April 2022, sent by the delegate to Ms McEwan. Although somewhat lengthy, it is helpful to set out a good portion of that letter because it nicely provides the background context and related reasoning of the Information Commissioner:

Your complaint

Your complaint made to the OAIC was:

The ATO was investigating an R&D tax claim, who contacted my previous investors that were completely unrelated with respect to the R&D claim.

The investors (Brisbane Angles) had invested into one of my companies “Apagein Biotech”, after six months it was decided we would part company.

12 months later, in August 22 2018, the Brisbane Angels made a complaint against me for defrauding them out of their investment.

I have been advised:

An Australian Taxation Office investigation identified that the money paid to the Defendant by the Victim was not used as per the condition of the investment. It had been used to pay a personal loan and other personal expenses.

The victim subsequently made a complaint to the Queensland Police Service.

1.    The ATO contacted the Brisbane Angels and disclosed personal information to the Brisbane Angels.

2.    What information was provided to the “Victim/Brisbane Angels” by the ATO that would cause the Brisbane Angels to make a complaint of fraud to the Queensland Police?

3.    The ATO provided information to the Brisbane Angles during an ATO investigation, personal information about me, my company, bank statements and other information.

My complaints

1.    The ATO should not have the breached Privacy Act and laws by providing information to the Brisbane Angels.

2.    The ATO provided information to the ATO that was misleading and false that caused the Brisbane Angels to make a complaint of fraud.

The relationship between the Brisbane Angels and my company was governed by agreements

1)    Term Sheet; and

2)     Shareholder Agreement

These documents set out very clearly the rights and obligations of the parties.

The charge against me was false.

The ATO conspired with the Brisbane Angels to bring criminal charges against me.

The Privacy Act permits you to make a complaint about acts and practices that may be an interference with your privacy. Under s 13 of the Privacy Act, an act or practice is an interference with privacy where it breaches an Australian Privacy Principle (APP) in relation to an individual's personal information.

The acts and practices relevant to the Privacy Act, as raised in your complaint, in summary are:

1.    In the course of its investigation, the respondent disclosed your information to Brisbane Angels Nominees Pty Ltd (Brisbane Angels). The disclosure of this information led to Brisbane Angels making a complaint to Queensland Police and subsequent events arising out of that complaint. This claim raises an alleged breach of APP 6 (use or disclosure of personal information).

2.    The disclosure of your personal information was misleading and false. This claim raises an alleged breach of APP 10 (quality of personal information).

The full text of APP 6 and APP 10 is set out in the Attachment.

Material obtained

Throughout the OAIC’s inquiries the respondent provided the following information relevant to the critical issues:

 •    Letter to the OAIC dated 19 July 2021 (Rl) (provided to you on 20 July 2021)

•    Letter to the OAIC dated 21 October 2021 (R2) (provided to you on 10 March 2022)

•    Letter to the OAIC dated 14 December 2021 (R3) (provided to you on 10 March 2022).

No interference with privacy

Under s 41(1)(a) of the Privacy Act the Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under s 36 of the Privacy Act, if satisfied that the act or practice is not an interference with the privacy of an individual.

APP 6

APP 6 provides that if an APP entity holds personal information about an individual that was collected for a particular purpose, the entity must not use or disclose information for another purpose, subject to exceptions.

You are of the view that the respondent has improperly disclosed information about the investigation to Brisbane Angels. You based this view on the fact that Brisbane Angels made the complaint to Queensland Police on 22 August 2018, the nature of which involved an allegation of fraud for the dishonest application of property on account of another.

You have also pointed to the inclusion of the following information in a court brief prepared by Queensland Police dated 23 August 2018 (‘QP09’):

An Australian Taxation Office investigation identified that the money paid to the Defendant [Apagein Biotech, Julie van Eps] by the Victim [Brisbane Angels] was not used as per the condition of the investment. It had been used to pay a personal loan and other personal expenses.

Your representative contends that you became aware of this communication during a telephone call with a detective of Queensland Police on 22 August 2018. In that telephone call, the detective said words to the effect that the investigating officer of the respondent showed bank statements and other personal information to representatives of the Brisbane Angels. For the following reasons, I am of the view that the respondent has not breached APP6.

The information provided by the respondent set out in Rl-R3, shows that from September 2017 the respondent was considering investigating a taxation matter in relation to one of the companies of which you were a director.

An investigation was opened in February 2018 and the respondent gathered information for this investigation on a number of occasions including:

•    the execution of a search warrant on your accountant in March 2018

•    the preparation of a witness statement from an individual of Brisbane Angels in April 2018

•    the execution of a search warrant on Brisbane Angels in August 2018

•    the preparation of a witness statement from another individual of Brisbane Angels in November 2018.

From this context, it is clear to me that your personal information was collected for the primary purpose of the respondent's investigation.

You have stated that the search warrants were carried out under the Crimes Act 1914 (Cth) (Crimes Act), not legislation administered by the respondent (your email of 11 March 2022). The respondent acknowledges that a search warrant was issued under s 3E of the Crimes Act, which was executed by the AFP on behalf of the ATO for suspected criminal charges, and became protected information under the Taxation Administration Act 1953 (Cth) (TAA) when it was provided to the ATO (R2). You take issue with the lawfulness of the respondent's use and disclosure of such information. The fact that information was obtained under the Crimes Act does not change my view that it was obtained for the purposes of investigating you for taxation offences.

It is also clear that there were at least 2 instances where evidence of the investigation was provided to witnesses from Brisbane Angels. While the respondent has not provided direct evidence of the particulars of this information or how it was connected to the provision of that information, it has provided information that certain exhibits were provided to the 2 individuals from Brisbane Angels for the purposes of preparing statements from those witnesses.

In conducting investigations, investigators may need to put information to witnesses or potential witnesses in order to elicit a response. This is an accepted practice in the conduct of investigations, though I acknowledge that care should be taken to only give witnesses as much information as they need to know for the purposes of the evidence.

To the extent that you are concerned that Brisbane Angels has been advised of the nature of what was being investigated, I do not consider there to be anything unreasonable if the respondent has in fact done so. Witnesses can reasonably expect to be appraised of issues in order to understand the context of questions being put to them and in order for the investigator to elicit an accurate response. This is an exercise of judgement on the part of the investigator and there is nothing in the circumstances of this case that causes me to suspect that the respondent has provided more information than was necessary.

In the circumstances of your case, an 'anomaly' was being investigated in relation to a research and development tax offset refund. Assuming the respondent did advise the witnesses that this was the critical issue being investigated, I can discern no impropriety on the face of it. I have considered your claims that:

‘the ATO were harassing me which included contacting my friends on Facebook and sent a “friend request” which is abuse in public office.

I invited the ATO’s R&D Director Brett Challens to Brisbane to spend the day with me to review my R&D and visit all of the locations that were relevant and importantly, legitimise my R&D. Brett Challens rejected my invitation, he proceeded to an interview at my request, which turned out to be a formal record of interview.

The ATO’s Anthony Rains took the record of interview (obtained under compulsion) and sprayed it far and wide. The ATO have lodged fake police charges and ATO charges. The ATO are being sued for malicious prosecution for $12.8M. Yes … this is the Australian Government Tax authority at it’s best.

I trust this will put a little more perspective into what really happened versus the ATO suggesting I am a criminal when in fact they fabricated the entire charge. One has been dropped, the second lot of charges is also about to be dropped because it is untenable.’

The respondent acknowledged that it sought intelligence from Facebook and accidentally made a ‘friend request’ (email from the respondent to you of 16 February 2018). I do not consider there to be evidence that the respondent’s investigator circulated the record of interview ‘far and wide’ or that there have been ‘fake’ charges made against you. Merely because charges are discontinued does not suggest to me that there was any malicious intent or secondary motivation to disclosing personal information obtained in an investigation.

In considering APP 6, unless the personal information was disclosed for a secondary purpose, it is not necessary to consider whether the disclosure was in accordance with legislation administered by other agencies.

In any event, while the OAIC does not administer the provisions in Division 355 of Schedule 1 to the TAA, it is permissible for a taxation officer to disclose ‘protected information’ where they do so in performing the entity's duties as a taxation officer, which includes a disclosure to an entity that is for the purpose of administering any taxation law. The definition of ‘entity’ under the TAA includes ‘person’.

To the extent that you consider ‘unauthorised disclosures’ have occurred under the TAA, or other legislation administered by the respondent, that is not a matter that falls for consideration under APP 6. You have provided an email from the respondent’s investigator dated 6 February 2019 to a witness to the effect that certain information referred to by the witness had been obtained under a particular law and was not permitted to be used in a ‘criminal matter’. This does not lead me to a view that the respondent has disclosed personal information for a secondary purpose.

Based on the information before me, I am satisfied that the respondent has disclosed personal information to Brisbane Angels for the primary purpose of conducting its investigation. There is nothing before me to suggest that it has done so for a secondary purpose. I am therefore of the view that the respondent has not breached APP 6.

APP 10

APP 10 requires an APP entity to take such steps (if any) as are reasonable in the circumstances to ensure the personal information the entity uses or discloses is, having regard to the purpose of the use or disclosure, accurate, up-to-date, complete and relevant.

In this case, you are concerned with the accuracy of personal information disclosed by the respondent to Brisbane Angels. In your privacy complaint form you say that the ‘charge against you was false’.

Where there is an identified instance of personal information being used or disclosed that is inaccurate, that may suggest that the respondent has failed to take reasonable steps.

In your case, I can discern no inaccuracy on the part of the respondent in using or disclosing personal information, having regard to the purposes of the investigation it was conducting. I note that the purposes of investigation may involve multiple pieces of evidence of varying degrees of quality. The purpose of an investigation is to locate evidence to prove facts relevant to legislative elements.

It was open to the respondent to put documents and other evidence to witnesses it considered to be relevant to its investigation.

As no inaccuracy of the information has been identified, I have no reason to consider the reasonableness of the steps the respondent took to safeguard the quality of your personal information.

I am therefore of the view that the respondent has not breached APP 10.

Investigation not warranted

Under s 41(1)(da) of the Privacy Act, the Commissioner may decide not to investigate an act or practice if satisfied that investigation is not warranted in all the circumstances.

Independently of my view that the respondent has not interfered with your privacy, I am of the view that an investigation is not warranted in the circumstances of your complaint.

I acknowledge that the alleged breach has had serious consequences for you, namely, that Brisbane Angels has complained about you to Queensland Police. While I accept that the alleged breach is serious, I am of the view that investigation by the OAIC is unlikely to bring the case to a productive or efficient resolution.

The outcomes that you seek as set out in your privacy complaint form are:

The ATO have refused to disclose what the information was they provided to the Brisbane Angles. I would like to know what that information is. The ATO has a duty to disclose it.

I would like the ATO to be prosecuted.

I would also like to be compensated for humiliation, injury and costs.

By email sent on 23 June 2021, you provided details of the outcomes you seek as follows:

•    Details of the information disclosed to the third-party Brisbane Angels as pertheQP9,

•    $4 million compensation for economic loss based on the independent valuation of your intellectual property and non-economic loss from the impact the disclosure by the ATO had on your reputation in the Biotech industry. The charge was unjustified.

•    $72,000 for legal fees defending the criminal prosecution when:-

   a)    The charge was fabricated by the ATO, specifically Anthony Rains;

b)    There was no evidence to support the QP9 facts of the charge “information provided by Anthony Rains of the ATO”. The information he supplied did not support the charge and therefore unjustified.

While I note that the respondent has provided you with some of the information you seek, it has advised it is unable to provide all the information while the investigation is the subject of court proceedings. I consider this a reasonable ground to refuse access at this stage. I note that it is open to you to make an access request pursuant to APP 12 (or a freedom of information request) and that the respondent will be obliged to consider such a request at the time that it is lodged.

The amount of compensation you seek is $4 million plus legal costs. The respondent has not made an offer to compensate you. I consider that the parties have disparate views of the case and that an investigation is unlikely to lead to an agreed amount in terms of compensation.

As for your request for prosecution of the respondent, any potential for prosecution of an APP entity would need to be considered against the OAIC’s Guide to Privacy Regulatory Action (https://www.oaic.gov.au/about-us/our-regulatory-approach/guide-to-privacy­regulatory-action). It is not a matter that would form part of an agreement. As such, I do not consider that further investigation will lead to a settlement of outcomes between the parties.

Decision

Section 41(l)(a) of the Privacy Act gives the Commissioner the discretion not to investigate a complaint if she is satisfied that the act or practice complained about is not an interference with privacy, as defined in the Privacy Act.

Section s 4l(l)(da) of the Privacy Act gives the Commissioner the discretion not to investigate an act or practice if satisfied that investigation is not warranted in all the circumstances.

For the above reasons, I am satisfied the conditions in ss 4l(l)(a) and (da) of the Privacy Act are met and that there is no reason to exercise the discretion to conduct an investigation. On this basis, I decline to investigate the complaint. Your review rights are outlined below.

3    It will be noticed that reference is made in the Information Commissioner’s reasons to a disclosure of material obtained pursuant to the execution of a search warrant. Although that also was initially the subject of complaint, and a challenge on judicial review, that particular aspect of the judicial review proceeding was not pressed by Ms McEwan at the hearing. Of the grounds of review which were pressed, in one way or another, as Ms McEwan made plain, with commendable focus, with respect, in her oral and written submissions, each of the promoted grounds of review hinge upon a particular construction of s 355-50 in sch 1 to the Taxation Administration Act 1953 (Cth) (Taxation Administration Act), which Ms McEwan urged upon me.

4    Before proceeding to consider the meaning and effect of that provision, it is necessary to set out certain provisions from the Privacy Act so as to give context to how the alleged violation of s 355-50 occurred. Section 15 of the Privacy Act obliges a “APP entity” not to do an act or engage in a practice that breaches an “Australian Privacy Principle”. Section 14 of the Privacy Act provides that the Australian Privacy Principles are set out in the clauses of sch 1.

5    An “APP entity” is defined by s 6 of the Privacy Act to mean an agency or organisation. In turn, section 6 provides that an “agency” means, materially, a department or a body, whether incorporated or not, established or appointed for a public purpose by or under a Commonwealth law. Suffice it to say, the Australian Taxation Office is an agency and, thus, a APP entity. So much was not controversial.

6    Section 41(1) of the Privacy Act provides materially:

(1)    The Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that:

(a)    the act or practice is not an interference with the privacy of an individual; or

…

(da)    an investigation, or further investigation, of the act or practice is not warranted having regard to all the circumstances; or

7    It is also necessary to set out the material part of Australian Privacy Principle 6:

6    Australian Privacy Principle 6—use or disclosure of personal information

Use or disclosure

6.1    If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless:

(a)    the individual has consented to the use or disclosure of the information; or

(b)    subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.

Note:    Australian Privacy Principle 8 sets out requirements for the disclosure of personal information to a person who is not in Australia or an external Territory.

6.2    This subclause applies in relation to the use or disclosure of personal information about an individual if:

(a)    the individual would reasonably expect the APP entity to use or disclose the information for the secondary purpose and the secondary purpose is:

(i)    if the information is sensitive information—directly related to the primary purpose; or

(ii)    if the information is not sensitive information—related to the primary purpose; or

(b)    the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or

(c)    a permitted general situation exists in relation to the use or disclosure of the information by the APP entity; or

(d)    the APP entity is an organisation and a permitted health situation exists in relation to the use or disclosure of the information by the entity; or

(e)    the APP entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.

Note:    For permitted general situation, see section 16A. For permitted health situation, see section 16B.

[emphasis in original]

8    It is apparent from the Information Commissioner’s reasons that the view reached in relation to s 41(1)(a) was that the complained of disclosures were for a primary purpose namely, law enforcement investigation. That being so, the decision, insofar as it related to s 41(1)(a), did not directly rely upon the exceptions found either in Australian privacy principle 6.2(b) or (e). Even so, if the view as to primary purpose was informed by a misconstruction of what was permissible, pursuant to the Taxation Administration Act, it seems to me that the grievance pressed on judicial review by Ms McEwan would still be made good.

9    Equally, although there was an alternative foundation for the Information Commissioner’s choosing not to investigate the complaint; namely, a view formed so as to engage s 41(1)(da), if that view were informed by a misconstruction of what was authorised by the Taxation Administration Act, it likewise seems to me that the decision would be amenable to successful challenge on judicial review.

10    Explicitly, as to ss 41(1)(a), and also (da), the Information Commissioner’s decision not to investigate flows from a state of administrative satisfaction. As was correctly conceded by Mr Walpole of counsel, in his careful and concise submissions for the Australian Taxation Office, the premising of a decision not to investigate on a state of administrative satisfaction does not render the resultant administrative decision of the Information Commissioner immune from judicial review. Rather, the question whether the state of satisfaction is justified on the material before the Information Commissioner is reviewable on grounds notably described by Sir Owen Dixon in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, at 360. This case, and others bearing on the subject, are collected and discussed in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 274 – 276.

11    The true meaning and effect of s 355-50 of sch 1 to the Taxation Administration Act is dependent, first and foremost, on the text adopted by Parliament but also on the context in which that provision appears and the evident scope and subject matter of the provision in that context. With this in mind, it is necessary to set out not only the text of s 355-50 but also certain other provisions within Ch 5, Pt 5.1, subdiv 355-B, disclosure of protected information by taxation officers in sch 1 to the Taxation Administration Act:

Subdivision 355-B – Disclosure of protected information by taxation officers

Guide to Subdivision 355-B

355-20    What this Subdivision is about

The main protection for taxpayer confidentiality is in this Subdivision. It is an offence for taxation officers to disclose tax information that identifies an entity, or is reasonably capable of being used to identify an entity, except in certain specified circumstances.

Table of sections

Operative provisions

355-25    Offence—disclosure of protected information by taxation officers

355-30    Meaning of protected information and taxation officer

355-35    Consent is not a defence

355-40    Generality of Subdivision not limited

355-45    Exception—disclosure of publicly available information

355-47    Exception—disclosure of periodic aggregate tax information

355-50    Exception—disclosure in performing duties

355-55    Exception—disclosure to Ministers

355-60    Limits on disclosure to Ministers

355-65    Exception—disclosure for other government purposes

355-67    Exception—disclosure to registrars

355-70    Exception—disclosure for law enforcement and related purposes

355-72    Exception—disclosure to credit reporting bureaus

355-75    Limits on disclosure to courts and tribunals

Operative provisions

355-25    Offence – disclosure of protected information by taxation officers

(1)    An entity commits an offence if:

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

(b)    the entity:

(i)    makes a record of information; or

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

(c)    the information is *protected information; and

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

Penalty: Imprisonment for 2 years.

(2)    An entity (the covered entity) is covered by this subsection in relation to protected information that relates to another entity (the primary entity) if:

(a)    the covered entity is the primary entity’s registered tax agent or BAS agent; or

(b)    the covered entity is a legal practitioner representing the primary entity in relation to the primary entity’s affairs relating to one or more taxation laws; or

(ba)    the covered entity is a public officer (within the meaning of section 252 or 252A of the Income Tax Assessment Act 1936) of the primary entity; or

(c)    the primary entity is an incapacitated entity and the covered entity is a representative of the incapacitated entity; or

(d)    the covered entity is the primary entity’s legal personal representative; or

(e)    the covered entity is the primary entity's guardian where the primary entity is a minor or suffers from mental incapacity; or

(f)    the covered entity and the primary entity are members of the same* consolidated group or MEC group; or

(g)    the covered entity is a representative of the primary entity who has been nominated by the primary entity in the approved form to act on that entity’s behalf with respect to protected information; or

(h)    the covered entity is the registered tax agent or BAS agent of another covered entity mentioned in paragraph (c), (d) or (e) in relation to the relevant primary entity mentioned in those paragraphs; or

(i)    the covered entity is a legal practitioner representing another covered entity mentioned in paragraph (c), (d) or (e) in relation to the affairs of the relevant primary entity mentioned in those paragraphs relating to one or more taxation laws.

355-30     Meaning of protected information and taxation officer

(1)    Protected information means information that:

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

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

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

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

(2)    Taxation officer means:

(a)    the Commissioner or a Second Commissioner; or

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

Note:     This Division applies to certain other entities as if they were taxation officers: see section 355-15.

355-35    Consent is not a defence

It is not a defence to a prosecution for an offence against section 355-25 that the entity to whom the information relates has consented to:

(a)    the making of the record; or

(b)    the disclosure of the information.

355-40    Generality of Subdivision not limited

Except as provided by section 355-60, nothing in this Subdivision limits the generality of anything else in it.

Note:    This means that each provision in this Subdivision (other than section 355-60) has an independent operation and is not to be interpreted by reference to any other provision within the Subdivision.

355-50    Exception—disclosure in performing duties

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

(a)    the entity is a taxation officer; and

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

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

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

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

[emphasis in original]

12    In Federal Commissioner of Taxation v Tamarama Fresh Juices Australia Pty Ltd (2017) 252 FCR 471 (Tamarama Fresh Juices), at 471, the Full Court had occasion to consider subdiv 355-D, but in the particular context of a controversy concerning the obligation on the part of the Commissioner of Taxation to comply with a subpoena directed to him by a group of companies in liquidation. Thus, the primary focus of attention by the Full Court was not upon s 355-50 but rather s 355-75, which deals with the separate subject of disclosure necessary for the other particular purposes of a taxation law. Even so, the Full Court did make certain more general observations concerning subdiv 355-D. In particular, at [25], the Full Court observed:

In common with the primary judge, we consider that decisions concerning the predecessor provisions in section 16 of the Income Tax Assessment Act 1936 are relevant.

Their Honours also earlier observed at [23] that the statutory scheme in subdiv 355-D does not treat voluntary and compulsory disclosures in the same manner. In particular, they stated:

In each case, whether the relevant person is a taxation officer or not, the scope of disclosures that a taxation officer may make is wider than those which an officer may be required to make to a court or tribunal. It follows that there may be cases, such as the present in our view, in which a taxation officer may make a disclosure of protected information to a person (for example under s 355-50(2)) but may not be required to disclose the same information to a court or tribunal under s 355-75.

13    This differentiation to which the Full Court refers in Tamarama Fresh Juices was also evident, in my view, in the former s 16 of the Income Tax Assessment Act 1936 (Cth) (1936 Act). Indeed, with all due respect to the parliamentary draftsman and Parliament, it is a very moot point indeed whether or not subdiv 355-D affects any improvement whatsoever over the predecessor provision. That, however – and, again, with respect – hardly makes it unique within sch 1 to the Taxation Administration Act.

14    The recognition of the relevance of earlier authority by the Full Court in Tamarama Fresh Juices is particularly pertinent for present purposes. That is because within the exception found in s 355-50(1)(b), a criterion of exception is that the record or disclosure is made “in performing the entity’s duties as a taxation officer”.

15    In Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 (Canadian Pacific Tobacco Co), at 6 – 7, Dixon CJ had occasion to consider a like exception to the secrecy requirement found in s 16 of the 1936 Act. Section 16(2) provided:

… an officer shall not either directly or indirectly, except in the performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any such information so acquired by him.

The Chief Justice stated in respect of the words “except in the performance of any duty as an officer” that they:

… ought to receive a very wide interpretation. The word “duty” there is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word “function”. The exception governs all that is incidental to the carrying out of what is commonly called “the duties of an officer's employment”; that is to say, the functions and proper actions which his employment authorizes.

The Chief Justice went on to hold in the particular context of the case before him that such duties extended to the making of an affidavit in the court in a proceeding for the ultimate obtaining of revenue and even if the word “divulge” is used in a sense which includes the giving of evidence. There was an unsuccessful appeal against the orders consequentially made by the Chief Justice. His Honour’s views were unanimously endorsed by McTiernan, Williams and Kitto JJ in their separate short judgments on the appeal: see Canadian Pacific Tobacco Co, at 10 – 11.

16    Of those members of the Full Court, Kitto J returned to the subject of what was or was not authorised by s 16 of the 1936 Act in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at 500. Having referred to Canadian Pacific Tobacco Co, his Honour had no difficulty in concluding that s 16(2) of the 1936 Act authorised a taxation officer to divulge information to a Taxation Board of Review for the purposes of a review proceeding.

17    Later in time is Federal Commissioner of Taxation v Nestlé Australia Ltd (1986) 12 FCR 257, in which at 262, and having earlier referred to Canadian Pacific Tobacco Co the Full Court stated:

The “duty” of an officer extends beyond the performance of work of an administrative nature such as processing returns, making assessments, considering and dealing with objections, conducting investigations into the affairs of taxpayers and matters of this nature. It includes the occasions on which he is required by the judicial process to produce documents or give evidence in courts, by affidavit or viva voce, concerning the affairs of some other person which he has acquired as an “officer”, where the proceedings are referable to the imposition, assessment or collection of revenue.

18    One therefore does not adopt a restrictive approach to the construction of the words “in performing the entity’s duties as a taxation officer” in s 355-50(1)(b). Even accepting this as, with respect, it seemed to me Ms McEwan did, her point was that “taxation officer” was a defined term, and further that in s 355-50(1)(a) the reference to “entity” is if the entity is a taxation officer. That being so, so the argument went, the disclosures which were permissibly made by way of exception to what was otherwise rendered an offence by s 355-25 were limited to entities who are taxation officers. That same construction was promoted in relation to “entity” where that word appears in the table under s 355-50(2). In other words, it was permissible for a taxation officer to make a disclosure to another taxation officer who was an entity in the confined sense for which s 355-50 made provision, but not otherwise.

19    That construction of s 355-50 was not one shared by the Australian Taxation Office. Instead, the submission was that, as a matter of construction, the reference in s 355-50(1)(a) to “the entity is a taxation officer” was nothing more and nothing else than a reference to the disclosing entity and had nothing whatsoever to do with the entity to whom or which disclosure was made by an entity that is a taxation officer. Instead, “entity”, so the submission went, bore a much wider meaning.

20    As I have already observed, it is a moot point as to whether subdiv 355-D effects any improvement on that which went before it, in particular s 16 of the 1936 Act. That section had about it its own difficulties which were the subject of noteworthy observation by Dixon CJ in Canadian Pacific Co and related submission which did not prove successful but which were made by the then Mr H.T. Gibbs of counsel (as the later Chief Justice Sir Harry Gibbs then was).

21    Such matters of jurisprudential history aside, it is, with all respect to Ms McEwan, tolerably clear, in my view, that the reference to “entity” in s 355-50(1)(a) is just to the disclosing entity. The constriction “the entity is a taxation officer” has no greater role to play in s 355-50. What follows from this is that it was permissible for officers of the Australian Taxation Office, entities within the meaning of s 355-50(1)(a), to make a record or disclosure without transgressing the offence provision in s 355-25 if the record or disclosure were made in performing the taxation officer’s duties as a taxation officer.

22    On the material before the Information Commissioner, the disclosures were made to prospective witnesses for the purposes of preparing witness statements in conjunction with the investigation of federal offences stemming from a taxation audit. It would be quite contrary, in my view, to the settled approach which counsels a broad construction of what amounts to performing duties as a taxation officer to hold that there was any error of law which infected the Information Commissioner’s decision as to what was or was not permissible under s 355-50(1). In my view, the disclosure was one authorised by s 355-50 because it was one made in performing the officer’s duties.

23    That in itself is sufficient in terms of what was or was not authorised by law. However, s 355-50(2), without limiting subs (1), makes provision for particular authorised disclosures. One is disclosure to an entity for the purpose of administering any taxation law: item 1. Another is disclosure to an entity for the purpose of criminal, civil or administrative proceedings: item 3.

24    In light of the conclusion reached in relation to s 355-50(1), it is unnecessary to express any concluded view about whether the more particular provisions in subs (2) would also be applicable. However, it seems to me that item 1 in the table under s 355-50(2) would extend to the conduct described by the Information Commissioner in the decision of 6 April 2022, as would in all likelihood item 3.

25    It is necessary in construing s 355-50 and in particular the breadth of the exception found in s 355-50(1) to recall that s 355-40 provides that, except as provided by s 355-60 – and that provision is not relevant presently – nothing in this subdivision limits the generality of anything else in it.

26    For completeness, I should mention that, at an anterior stage of the administrative processes within the Office of the Information Commissioner, a view different to that which came ultimately to be expressed on 6 April 2022 was formed. That became the subject of an internal communication, by email, as between a subordinate and the ultimate decision-maker within the Office of the Information Commissioner. Yet further one particular print of that email for a reason not readily apparent, came upon its retrieval and printing into hard copy to bear a year imprint 2001.

27    It is not for me either to investigate or speculate about how such an imprint came to occur, only to recognise that the views of the subordinate came not to be adopted. That is not to say that those views, for reasons which doubtless seemed good to the subordinate, may not have been shared at a consideration stage with Ms McEwan. It would be quite wrong, however, to form any conspiratorial view about the ultimate decision made by the Information Commissioner. There is not a scintilla of evidence whatsoever which would suggest that that decision was made other than in good faith. Further, for the reasons which I have expressed, that decision is not one where the satisfaction formed was infected by the error for which Ms McEwan contends.

28    For these reasons, the application is dismissed.

29    I should add that the Information Commissioner very properly, having regard to R v The Australian Broadcasting Tribunal; ex parte Hardiman & Ors (1980) 144 CLR 13, adopted the stance of abiding the order of the Court.

30    The orders are the application be dismissed and that the applicant pay the costs of and incidental to the application to be fixed in a lump-sum by the Registrar if not agreed.

Associate:    

Dated:    14 December 2022