ABCD and Commissioner of Taxation and Australian Securities and Investments Commission (Party Joined) - [2008] AATA 898

CATCHWORDS –

PRACTICE AND PROCEDURE – parties - person made party to proceeding – identifying proceeding – implications of being made party – whether permitted to attend hearing when concerns issues beyond its interests – permitted to attend whole hearing.

PRACTICE AND PROCEDURE - confidentiality order – limitation imposed by requirement that there be a private hearing - effect of order with regard to parties – whether parties can use information to suggest further lines of enquiry outside scope of Tribunal proceedings - whether order can be revoked or varied – implications of disclosure in this proceeding on another proceeding required to be held in private and subject to separate confidentiality order - order revoked.

Acts Interpretation Act 1901 s 33(3)

ASC Law of New South Wales s 19, 64, 709 and 710

Australian Prudential Regulation Authority Act 1998 ss 45
Australian Securities Commission Act 1989
Corporations (New South Wales) Act 1990 (NSW), s 58(1)
Corporations Law ss 721 and 1309

Federal Court of Australia Act 1976 s 50

Income Tax Assessment Act 1936 ss 16 and170

Insurance Act 1973 s 25A

Mutual Assistance in Criminal Matters Act 1987
Taxation Administration Act 1953 ss 3E, 14ZQ, 14ZZE, 14ZZF, 14ZZJ, 14ZZK
Trade Practices Act 1974 s 27
Administrative Appeals Tribunal Act 1975 ss 2A, 3 , 21A, 25, 28, 30, 30A, 32, 33, 34A, 35(2), 36, 36A, 36B, 36C, 37, 39, 40, 41, 42A, 44, 45, 64 and 69A

Australian Securities and Investments Commission Act 2001 ss 7, 8, 9, 11, 12, 13, 127, 102, 119A, 148 and 261

Freedom of Information Act 1982 ss 11, 27, 27A, 28, 33, 34,35, 36, 36A, 36B, 36C, 43, 41, 54, 55, 56, 58, 58B, 58C, 59, 59A, 60, 61, 62 and 63

Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222
Australian Broadcasting Commission v Parish and Ors (1980) 29 ALR 228
Australian Competition and Consumer Commission v FFE Building Services Ltd and Others (2003) 130 FCR 37
Australian Securities Commission v Bank Leumi Le-Israel and Others (1995) 134 ALR 101
Bogaards v McMahon (1988) 80 ALR 342
Boral Resources (Vic) Pty Ltd v Robak Engineering and Construction Pty Ltd and Another [1999] 2 VR 507

Brown v Commissioner of Taxation (2001) 47 ATR 143

Brydges v Brydges and Wood [1909] P 187
Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509
Corporate Affairs Commission v Bradley; Commonwealth of Australia (Intervener) [1974] 1 NSWLR 391
Crest Homes PLC v Marks [1987] AC 829
Director-General of Social Services v Chaney (1980) 31 ALR 571
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577
Eldridge v Federal Commissioner of Taxation (1990) 90 ATC 4907
Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322
Esso Australia Resources Limited v Plowman (1994-1995) 183 CLR 10
Eurovox Pty Ltd v Chief Executive Officer of Customs [2000] FCA 1906
Financial Wisdom Limited v Dale Newman & Ors (2005) 12 VR 79
Hamersley Iron Pty Ltd v Lovell & Others (1998) 19 WAR 316
Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673
Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 17
Inland Revenue Commissioners v National Federation of Self Employed and Small Business Ltd [1982] AC 617
Jebb v Repatriation Commission (1988) 80 ALR 329
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101
Kennedy v Administrative Appeals Tribunal (2008) 103 ALD 238
Kennedy v Australian Securities and Investments Commission & Others (2005) 142 FCR 343; 218 ALR 224
Kennedy v Baker (2004) 135 FCR 520
Kennedy v Baker (No2) (2004) 138 FCR 414
Kennedy v Wallace (2004) 142 FCR 185
Kennedy v Wallace (2004) 208 ALR 424
Levy v State of Victoria and Others (1997) 189 CLR 579; 146 ALR 248
MacDonald v Australian Securities & Investments Commission [2007] NSWCA 304
Marr v Chaplin (1986) 66 ACTR 31
Minister for Immigration and Multicultural and Indigenous Affairs v X (2005) 147 FCR 243
Pilato v Metropolitan Water Sewerage & Drainage Board (1959) 76 WN (NSW) 364
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; 104 ALR 317
Re An Applicant and Australian Prudential Regulation Authority and a Party Joined (2005) 89 ALD 643; 42 AAR 206
Re Becker and Minister for Immigration and Ethnic Affairs and Another (1977) 1 ALD 158; 15 ALR 696
Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority (1999) 58 ALD 581
Re Kanina Banner Pty Ltd and Minister of Health and Ageing (2002) 66 ALD 663

Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment (1986) 10 ALD 262

Re Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; 2 ALD 33
Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558
Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656; 76 ALR 36
Re VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747; 41 AAR 97
Re VC and Australian Federal Police (1985) 8 ALD 587
Sandtara Pty Ltd v Abigroup Ltd (1997) 42 NSWLR 5
Scott v Scott [1913] AC 417; [1911-1913] All ER 1
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 110 ALR 685
Tedeschi v Legal Services Commissioner (1997) 43 NSWLR 20
United States Surgical Corp v Hospital Products International Pty Ltd (1982) NSW Supreme Court Procedure, p 8571
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs and Another (1996) 189 CLR 1; 138 ALR 220

DECISION AND REASONS FOR DECISION [2008] AATA 898

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2006/1220
GENERAL ADMINISTRATIVE DIVISION )
Re:ABCD

Applicant

And:COMMISSIONER OF TAXATION

Respondent

And:AUSTRALIAN SECURITIES AND
INVESTMENTS COMMISSION

Party Joined

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  18 September 2008
Place:  Melbourne

Decision: The Tribunal directed on 18 September 2008 that:

1.the confidentiality orders dated 12 February 2007 and 27 August 2008 be revoked;
2.Australian Securities and Investments Commission be permitted:
(1)to attend the hearing by its counsel, solicitors or Ms Judith Birch or other officer as it sees fit; and
(2)to take part in the hearing but only to the extent which was directed by Deputy President McDonald and which is
“…limited to adducing evidence and making submissions in respect of the following eight documents 174, 175, 363, 397, 460, 472, 489, 585 and any other documents which refer to, or contain extracts or information from those documents.”

AND also directed on 19 September 2008 that:
1.there be a stay of the order made on 18 September 2008 (the variation order) by which the Tribunal varied the Orders of the Tribunal made on 27 August 2008 until the close of the next business day following the delivery of the Tribunal’s written reasons for making the variation order;
2.if the applicant applies to the Federal Court of Australia for review by that Court of the variation order within the time period referred to in paragraph 1, the stay referred to in order 1 be continued until the Federal Court of Australia determines the application and the resolution of any appeals resulting from such determination.
3.that the hearing in this Tribunal of the application for review be adjourned to be listed for directions no earlier than 2 business days after the Tribunal’s delivery of its written reason for making the variation order.
4.if the applicant applies to the Federal Court of Australia for review by that Court of the variation order within the time period referred to in paragraph 1, the hearing in this Tribunal of the application for review be adjourned to be listed for a directions hearing after the Federal Court of Australia gives judgment on the application to that Court and the expiry of any appeal period following that judgment.

S A Forgie
Deputy President

REASONS FOR DECISION

ABCD’s affairs have been the subject of an audit investigation by the Commissioner of Taxation (Commissioner) and an investigation by the Australian Securities and Investments Commission (ASIC). In proceedings separate from these, he has applied to the Tribunal for review of reviewable objection decisions made by the Commissioner. Those decisions relate to amended assessments issued by the Commissioner for the income years ended 30 June 1993 to 1996 and 1998 to 2000 inclusive. The Commissioner included in ABCD’s taxable income amounts of income which he, the Commissioner, claimed ABCD had not declared in his returns of income for those years. ASIC’s investigation related to possible failure to comply with substantial shareholder notice provisions as they related to shareholdings in Offset Alpine Printing Group Ltd (OAP). ABCD has instituted various legal proceedings in relation to that investigation.

In 2005, solicitors acting on behalf of ABCD made a request under the Freedom of Information Act 1982 (FOI Act) to the Australian Taxation Office (ATO) for access to eight categories of documents referred to in a Position Paper. The Commissioner had prepared the Position Paper in respect of ABCD’s taxation liability and given it to him. His delegate granted the request in part but denied access to a number of documents. ABCD applied to the Tribunal for review of the decision to deny access after it had been internally reviewed within the ATO. ASIC was made a party to the application for review “… limited to adducing evidence and making submissions in respect of … eight documents … and any other documents which refer to, or contain extracts or information from those documents.” Confidentiality orders were made giving ABCD his pseudonym and restricting publication of the evidence given before the Tribunal and matters contained in documents lodged with the Tribunal or received in evidence.

ASIC presented evidence and made submissions regarding the eight documents in the initial days of the hearing of ABCD’s application for review of the Commissioner’s decision under the FOI Act. At the conclusion of its evidence and submissions, I gave leave to its counsel, Mr Pearce SC and Mr Pizer, to withdraw and for it to be represented by Ms Birch, the Administrative Law Co-ordinator of ASIC. The understanding was that ASIC was a party to the proceeding and entitled to be represented at it. Ms Birch would have a watching brief for the remainder of the proceeding. Should a matter arise that affected ASIC’s interest in the eight documents or in extracts of information from those documents, she would participate in the hearing or seek instructions and, if necessary, an adjournment so that Mr Pearce and Mr Pizer could return. On behalf of ABCD, Ms Davies SC with Ms McNicol raised concerns about Ms Birch’s watching brief in light of the confidentiality orders I had made. ASIC, supported by the Commissioner, sought to have the confidentiality orders set aside.

The submissions that were made extended to the role of a person made a party to a proceeding in the Tribunal, to the scope of the confidentiality order and to the use of evidence that is subject to a confidentiality order as well as to whether the confidentiality order should be revoked. I decided in the course of the hearing on 18 September 2008 that the confidentiality orders should be revoked. These are my reasons for doing so as well as my reasons for permitting Ms Birch to attend the hearing on the basis that she had a watching brief and for permitting ASIC to take further part in the proceeding at all.

BACKGROUND

In this section, I have attempted to place events in their broad chronological order. Overlap of various activities has meant that it has not been always possible to maintain that order.

Australian Securities Commission’s 1995 investigation into possible failure to comply with substantial shareholder notice provisions regarding shareholdings in Offset Alpine Printing Group Ltd

The facts in this section of my reasons are drawn from the judgment of Sackville J in Australian Securities Commission v Bank Leumi Le-Israel and Others[1] and to that of the Full Court of the Federal Court in Kennedy v Australian Securities and Investments Commission & Others.[2] OAP was previously known as Oilmet Resources NL. Its principal activity is printing. On 5 April 1995, the Australian Stock Exchange (ASX) informed the ASC of its investigations into the trading of OAP securities. The ASX was concerned that there had been a failure to comply with the substantial shareholder notice provisions of the Corporations Law. Its concern arose from the fact that Bank Leumi-Le Israel (Leumi) and EBC Zurich AG (EBC) had sold 720,000 shares into an on-market buy-back scheme for shares in OAP between 1 September 1994 and 28 February 1995.
[1] (1995) 134 ALR 101
[2] (2005) 142 FCR 343; 218 ALR 224

Both Leumi and EBC are incorporated in Switzerland as stock corporations. Leumi is a bank permitted to carry on business under the Swiss Federal Law on Banks and Savings Banks and EBC is a finance company. As a result of issuing primary notices to the top 40 shareholders, the ASC understood that 16.97% of the issued capital was held on behalf of Leumi and 22.25% on behalf of EBC. The ASC issued secondary notices to each of Leumi and EBC requiring details of their relevant interests in the shares and the interests and circumstances of every other person who has an interest in them or who has given instructions relating to them. Leumi made a request under s 721(1) of the Corporations Law stating that, except in relation to 80,000 shares it held as principal, it should not give information. It stated that provision of the information would contravene Art 47 of the Swiss Federal Law on Banks and Savings Banks and Art 271 of the Swiss Penal Code. EBC declined to provide the information on the basis that Swiss Secrecy Regulations did not permit it to do so.

On 3 May 1995, the ASC commenced proceedings in the Federal Court seeking various relief. Among the relief sought were declarations that Leumi and EBC had contravened the Corporations Law by failing to comply with the secondary notices served on them by the ASC and orders that the registered owners of shares in OAP held on behalf of Leumi and EBC divest themselves of the shares. In December 1995, Sackville J granted ASC certain declaratory relief and ordered that Leumi and EBC instruct the sale of the shares on certain conditions. An appeal from his Honour’s judgment was dismissed. In a subsequent matter, Gyles J noted that:
“… the shareholdings had been sold prior to the appeal coming on for hearing. Atanaskovic Hartnell had acted for Bank Leumi during this proceeding. In part the reason for not ordering disclosure or framing an order to encourage disclosure was Art 47 of the Swiss Banking Law which prohibits a bank or its officers from divulging secrets entrusted to them. The upshot was that the identity of the beneficial owner or owners of the parcel of shares was not disclosed.”[3]
[3] Kennedy v Wallace (2004) 208 ALR 424 at 428

Examinations conducted under s 19 of the ASC Law of New South Wales

On or about 16 May 1995, the ASC issued a notice to Mr Kennedy requiring him to attend an examination under s 19 of the ASC Law of New South Wales (ASC Law) i.e. the Australian Securities Commission Act 1989 as it was then known and applied as a law of New South Wales.[4] During the examination held on 18 May 1995, Mr Kennedy denied having any interest in the OAP shares that were the subject of the ASC’s investigation at the time.[5] Mr Rene Rivkin also denied having any interest in those shares when he was required to attend examinations on 6 June 1995 and 6 September 1995.[6]

Newspaper article reproducing claims that Mr Kennedy, Mr Rivkin and Mr Richardson the ultimate beneficiaries of the shares

[4] Corporations (New South Wales) Act 1990 (NSW), s 58(1)

[5] Kennedy v Australian Securities and Investments Commission & Ors (2005) 142 FCR 343; 218 ALR 224 at 348; 228

[6] (2005) 142 FCR 343; 218 ALR 224 at 348; 228

The Full Court summarised the revelations made in the article in the Australian Financial Review on 30 October 2003 in this way:
“… The article reproduced extracts from transcripts of interviews with Mr Rivkin that had been conducted by the District Attorney of Zurich, Switzerland, in which Mr Rivkin identified himself, Mr Kennedy and Mr Graham Richardson as the ultimate beneficial owners of certain shares in Offset.”[7]
[7] (2005) 142 FCR 343; 218 ALR 224 at 348; 228

ASIC instigates further investigation Mr Kennedy further in 2003

On 31 October 2003, ASIC decided to investigate possible contraventions of s 64(1) of the ASC Law by Mr Rivkin during the examinations held on 6 June and 6 September 1995. ASIC has that power under s 13 of the Australian Securities and Investments Commission Act 2001 (ASIC Act).

On 10 November 2003, ASIC decided to extend its investigation to suspected contraventions of four statutory provisions: ss 709 and 710 of the ASC Law by Messrs Kennedy, Rivkin and Richardson; s 64(1) of the ASC Law by Messrs Rivkin and Kennedy; s 35 of the Crimes Act 1914 by Messrs Rivkin and Kennedy in relation to their testimony during their examinations; and s 1309 of the Corporations Law by the Board of Directors of OAP in relation to statements it had made to ASX on 4 May 1995 and clarified on 11 May 1995.[8]
[8] Kennedy v Australian Securities and Investments Commission & Ors (2005) 142 FCR 343; 218 ALR 224 at 348; 229

On 19 November 2003, ASIC gave Mr Kennedy a further notice requiring him to attend an examination to answer questions in relation to the investigation. Mr Kennedy attended on 24 November 2003 as required but the examination was adjourned to 1 December 2003 at his request. The examination proceeded on 1 and 2 December 2003.

If the investigation revealed evidence that Mr Kennedy had committed offences, the Director Public Prosecutions (DPP) would be responsible for deciding whether to proceed by instituting any prosecution proceedings against him in respect of the offences alleged. On or before 22 January 2004, the DPP requested the Attorney-General to request the competent authority in Switzerland for documents that may be relevant to any such prosecution. The Attorney-General did so under the Mutual Assistance in Criminal Matters Act 1987 (MACM Act). His request was dated 22 January 2004 and, following a further request from the DPP received on or before 2 April 2004, the Attorney-General supplemented the request with a further request dated 2 April 2004.

Mr Kennedy’s challenge to the validity of the investigation, notices to attend examinations

A Full Court of the Federal Court heard Mr Kennedy’s applications for injunctions, declarations and other orders under the Judiciary Act 1903. He challenged the validity of the notices requiring him to attend the examinations and the requests made to Switzerland under the MACM Act. The Full Court decided that Mr Kennedy had failed to establish any invalidity in relation to the two decisions on 31 October and 10 November 2003 to conduct an investigation or in relation to the notices requiring him to attend for examination. He had also failed to establish that the requests made by the Attorney-General were beyond power.

Search warrants executed at Mr Kennedy’s residence and place of business

Gyles J considered Mr Kennedy’s application for orders for the return of certain documents seized by officers of the Australian Federal Police (AFP) when executing a search warrant of his residence on 13 November 2003. In the course of his judgment on that application,[9] Gyles J noted that Mr Kennedy had denied having any beneficial interest in the OAP shares held by either Leumi or EBC and claimed that his only interest was held through a company which was related to him and which was registered as a shareholder. Those documents included notes relating to a meeting he had with his Swiss lawyer, Mr Benno Hafner. Gyles J said of that meeting:
“… The overwhelming inference to be drawn in all of the circumstances is that Kennedy’s dominant underlying purpose in meeting with Hafner on 4 November was to take all available steps to preserve or enhance the secrecy from Australian authorities, including ASIC, of his dealings in or relating to Switzerland including all facts and circumstances in relation to the Brampton entities and any dealings he may have had in Switzerland directly or indirectly with [Renee] Rivkin generally and in relation to proceeds of the Offset Alpine shares in particular.”[10]
[9] Kennedy v Wallace (2004) 208 ALR 424
[10] (2004) 208 ALR 424 at 445

His Honour noted that Mr Kennedy had claimed that the “Brampton entity” was established on the advice of London lawyers and accountants on the basis that it would be strictly legal and have nothing to do with him. Mr Kennedy claimed that he took no interest in its affairs, had no knowledge of its beneficiaries and had no association with it at all. The structure of the Brampton entity changed following a fraud at EBC when money was stolen or defrauded from it.[11]
[11] (2004) 208 ALR 424 at 429

Gyles J said in his judgment:
“ It is obvious that the successive Swiss Brampton entities were established in order to take advantage of Swiss secrecy laws and thereby hide assets and transactions with which Kennedy had a connection from the Australian authorities including the Australian Taxation Office. It is also obvious that the entities were structured by Hafner and administered by him in such a fashion as to minimise the risk of any disclosure of any association with Kennedy. The fact that Kennedy has kept no records in Australia relating to any Swiss transactions with which he was directly or indirectly connected over nearly 15 years underlines the difficulty of any effective scrutiny of those transactions by Australian authorities.”[12]
[12] (2004) 208 ALR 424 at 445

Although Gyles J considered Mr Kennedy’s claim for legal professional privilege on two grounds. He concluded that the Mr Kennedy had not demonstrated that the notes had been made for the dominant purpose of obtaining legal advice. In any event, the purpose of the communications between Mr Kennedy and Mr Hafner was not a purpose that entitled them to legal professional privilege.[13] He went on to consider a notepad that had been seized but which he found did not fall within the description in the warrant. The appeal from the judgment of Gyles J was dismissed.[14]
[13] (2004) 208 ALR 424 at 446
[14] Kennedy v Wallace (2004) 142 FCR 185

A separate warrant was executed at Mr Kennedy’s business premises and a forensic image made of the entire hard drive of the personal computer ordinarily operated by his personal assistant. Mr Kennedy sought orders preventing ASIC from examining or otherwise dealing with the image and requiring it to be delivered to him. Branson J found that the principal issue to be decided concerned the extent of the power given to an officer executing a search warrant to copy data accessed by operating electronic equipment. She concluded that Mr Kennedy had not established an entitlement to a declaration that the officer was not entitled to create that copy or to remove that copy from the premises.[15]
[15] Kennedy v Baker (2004) 135 FCR 520

In separate proceedings, her Honour considered Mr Kennedy’s claim that the creation of, and removal from the premises of, the copy of the hard drive was unlawful because its contents included communications to which legal professional privilege applied. Branson J refused to make the orders. Mr Kennedy did not claim legal professional privilege to the copy or to anything in the copy of the hard drive at the time it was seized but was given an opportunity to claim it. Branson J rejected Mr Kennedy’s claim.[16]

[16] Kennedy v Baker (No2) (2004) 138 FCR 414

ATO’s audit investigation

The Australian Taxation Office (ATO) is also conducting an audit investigation in relation to the affairs of certain taxpayers. For the purpose of the audit investigation, the ATO has requested information from ASIC under s 127 of the ASIC Act and, for the purpose of its investigation, ASIC has requested information from the ATO under s 3E of the Taxation Administration Act 1953 (TA Act).

The request for access under the FOI Act

On 19 October 2005, solicitors acting on behalf of ABCD requested the Australian Taxation Office (ATO) for access to eight categories of documents. In summary, they requested access to documents created by any person, whether or not an officer of the ATO, in relation to, concerning or referred to in the Position Paper and in relation to or concerning any issue or matter referred to or raised in that Position Paper.[17]
[17] Documents lodged under Administrative Appeals Tribunal Act 1975, s 37, (T documents) at 75-80

The Commissioner’s amended assessments, objections and objection decisions

On the basis of the affidavit of Mr Paul Edward Sokolowski sworn on 18 September 2008, I note the Commissioner has amended assessments of ABCD for the income years ended 30 June 1993 to 1996 and 1998 to 2000. The amended assessments included in ABCD’s taxable income amounts of income which he, the Commissioner, claimed ABCD had not declared in his returns of income for those years. He gave notice of those amended assessments on 2 June 2006. ABCD lodged objections against the amended assessments on 6 July 2006 but the Commissioner disallowed them in full on 19 December 2006.

The Commissioner’s decisions on the FOI request and ABCD’s application to the Tribunal for review

The ATO identified a considerable number of documents as coming within the scope of the request. It made decisions whether or not it would grant access to those documents, or parts of them, over a period of time. This meant that it made interim decisions and gave ABCD access to groups of documents in four separate decisions made between 14 February 2006 and 14 March 2007.

During the decision-making process, ABCD requested access to a further three categories of documents. He did so in a letter dated 28 July 2006.[18] On 11 August 2006, ABCD applied for review of the first three decisions made in relation to his earlier request. He applied under s 54 of the FOI Act (internal review).[19] A delegate of the Commissioner reviewed the decisions on 13 November 2006.[20]
[18] T documents at 238-240
[19] T documents at 242-257
[20] T documents at 261-311

Before the internal review decision was made, ABCD made a further request under the FOI Act for a further three categories of documents. This was in a letter dated 20 October 2006 referred to in a letter from the Australian Government Solicitor to ABCD’s solicitors dated 13 November 2006.[21]
[21] T documents at 312-313

On 20 December 2006, ABCD lodged an application for review of the internal review decision. He also applied for review of decisions deemed to have been made by the ATO refusing access to two categories of the documents he had requested in his request dated 28 July 2006 but about which he had not received a decision.

Application to review decisions under FOI Act: consideration under s 35(2) of the AAT Act on 1 February 2007

In the letter accompanying his application, ABCD’s solicitors advised that they intended to seek an order under s 35(2) for the “hearing and evidence to be in private”. The Tribunal gave notice to the Commissioner’s solicitors who responded that he did not object to an order “that the application and attachments be kept confidential by the Tribunal and the parties”.[22] Whether the order should be made was considered during the course of a directions hearing held on 1 February 2007. ABCD’s solicitors put forward two reasons for restricting public access: review was being sought of objection decisions made by the Commissioner and did not need to be dealt with in the public arena and the matter had been the subject of some scrutiny. The Commissioner’s solicitors advised that it was not appropriate to oppose it as long as a decision was available in some form. Issues discussed included the scope of s 14ZZE of the Taxation Administration Act 1953 (TA Act) in protecting confidentiality of the Tribunal’s proceedings to review the objection decisions as well as the practical issues that the Commissioner faced in undertaking any necessary third party consultations under the FOI Act should a confidentiality order be drafted too restrictively. During the course of that discussion, my Associate’s note records my saying “Order in short term → so we can think about issues. Protecting I.D. & that H in private. But need to go into this in more detail.”
[22] Letter dated 12 January 2007, T documents at 322-323

On 1 February 2007, and so before ASIC was made a party to the application for review of the decision, I made an order in the following terms:
“1. the applicant be described by the letters ‘NCMG’ for the purposes of the application;
2.publication of the name of the applicant and of any material tending to identify him and any entities in which he has an interest be restricted to members and staff of the Tribunal, the parties and their representatives and professional advisers, staff of Auscript and, for the purposes of consultation under the Freedom of Information Act 1982, with officers of other Commonwealth agencies;
3.evidence given before the Tribunal and matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal be restricted to members and staff of the Tribunal, the parties and their representatives and professional advisers, staff of Auscript and, for the purposes of consultation under the Freedom of Information Act 1982, with officers of other Commonwealth agencies;
4.the hearing shall be held in private; and
5.liberty to apply.”[23]
[23] The written order is dated 12 February 2007 as the Tribunal’s procedures require the use of a pseudonym that is automatically generated by its computerised case management system. A problem with the system would not permit generation of a pseudonym before that date.

Further consideration of documents subject of deemed refusal decisions under FOI Act

In a letter dated 12 January 2007, the Commissioner applied for further time within which to reach a decision in respect of the two categories of documents in relation to which he was deemed to have refused request. His application was implicitly granted when I extended the time within which he was required to comply with s 37(1) of the AAT Act[24] and it was again extended on a later occasion.[25] The decision was made on 14 March 2007.[26] By virtue of s 56(5) of the FOI Act, the Tribunal may treat the proceedings as extending to a review of the decision.

ABCD’s application to the Tribunal for review of objection decisions and requests for private hearing and confidentiality order

[24] T documents at 329

[25] T documents at 334

[26] T documents at 342-436

ABCD applied to the Tribunal for review of those objection decisions under Part IVC of the TA Act. As they came within the definition of “reviewable objection decisions”,[27] then:
“Despite section 35 of the AAT Act, the hearing of a proceeding before the Tribunal …:
…
is to be in private if the party who made the application requests that it be in private.”[28]
[27] TA Act, s 14ZQ
[28] TA Act, s 14ZZE

ABCD made that request and so the proceedings in the Tribunal are to be conducted in private. That fact does not prevent the Tribunal from publishing its reasons for decision[29] provided that, if an appeal has not been lodged with the Federal Court, “… the Tribunal must ensure, as far as practicable, that its reasons for decision are framed so as not to be likely to enable the identification of the person who applied for the review.”[30]
[29] TA Act, s 14ZZJ(2C)
[30] TA Act, ss 14ZZJ(2D)

Perhaps mindful of arguments relating to the limits on the confidentiality that a private hearing may afford,[31] ABCD asked the Tribunal to make orders under s 35(2) of the AAT Act restricting the publication or availability of his name, any material tending to identify him and the entities with which he is associated, he names of witnesses, evidence before the Tribunal and material contained in documents lodged with the Tribunal or received in evidence by it. The Commissioner neither consented to nor opposed the making of the order which ABCD requested and which Deputy President Walker made on 17 May 2007.

[31] Scott v Scott [1913] AC 417; [1911-1913] All ER 1 at 483; 34 per Lord Shaw

Application to review decisions under FOI Act: conferences and directions hearings

The T documents were lodged on 15 March 2007 and the application was referred for conferences until I held a directions hearing on 21 December 2007. I set a timetable for the filing and service of the parties’ Statements of Facts, Issues and Contentions and witness statements and any other material on which they wished to rely. The Commissioner filed affidavit and other material on 15 February 2008. It filed two versions of one affidavit with one version excluding [82] and [87] in view of the Commissioner’s contention that the material they contained would negate exemptions claimed under s 37 of the FOI Act.[32] He asked for an order to be made under s 35(2) of the AAT Act to protect the confidentiality of that material. Deputy President McDonald made that order on 20 February 2007 upon being satisfied “on the face of the document that it was desirable to do so but without the applicant’s having been given an opportunity to make submissions”.
[32] Affidavit of Paul Edward Sokolowski sworn 18 September 2008, Exhibit PES-3

On 3 March 2008, Deputy President McDonald extended the date by which ABCD was required to comply with that direction to 14 March 2008. When ASIC advised the ATO that it would seek to be made a party to the proceeding, the Commissioner’s solicitors asked the Tribunal to reconsider the timetable it had set.[33]

ABCD’s application to the Tribunal for review of objection decisions: request that the Tribunal require the Commissioner to lodge documents under s 37(2)

[33] Affidavit of Paul Edward Sokolowski sworn 18 September 2008, Exhibit PES-5

ABCD asked the Tribunal to exercise its power under s 37(2) of the AAT Act, as modified by s 14ZZF(1)(b) of the TA Act . It refused and an appeal from its decision was dismissed by the Full Court of the Federal Court in Kennedy v Administrative Appeals Tribunal.[34] I return to the Full Court’s judgment below.[35]
[34] (2008) 103 ALD 238
[35] See [168]-[172] below

Application to review decisions under FOI Act: ASIC is made a party

On 20 March 2008, ASIC applied to be made a party to the proceeding No. V2006/1220.[36] It was supported by Ms Birch’s affidavit. ABCD opposed the application. The Commissioner did not oppose it and set out five reasons for his position:
“a) ASIC advised the Respondent’s FOI decision-makers that the disclosure of certain documents in the ATO’s possession would impact on an ongoing ASIC investigation;
b)the Respondent has made certain exemption claims over those documents on the basis of ASIC’s contentions;
c)the Respondent is not in a position to provide evidence about the nature of the impact of the documents’ disclosure on the ASIC investigation;
d)through it solicitors, the Respondent approached ASIC to provide evidence to the Tribunal about the impact of the documents’ disclosure on the ASIC investigation; and
e)in the Respondent’s view, ASIC is in the best position to provide evidence and submissions about the possible application of exemptions under the Freedom of Information Act 1982 to those documents.”[37]
[36] Affidavit of Paul Edward Sokolowski sworn 18 September 2008, Exhibit PES-6
[37] Affidavit of Paul Edward Sokolowski sworn 18 September 2008, Exhibit PES-7

On 18 April 2008, Deputy President McDonald heard the application and, upon being satisfied that ASIC was a person whose interests are affected by the decision under review, ordered that:
“… ASIC is to be joined as a party to the application limited to:
1.8 documents for the purposes only of adducing evidence and making submissions in respect of documents number 174, 175, 363, 397, 460, 472, 489, 585 and any other documents which refer to, or contain extracts or information from those documents.
…”

In a further order dated “18 April 2008 and 25 June 2008”, he expressed the order in this way although there is nothing in Mr Sokolowski’s affidavit or on the file to suggest that the order was revisited at the directions hearing held on that date:

“ASIC is to be joined as party to the application limited to adducing evidence and making submissions in respect of the following eight documents 174, 175, 363, 397, 460, 472, 489, 585 and any other documents which refer to, or contain extracts or information from those documents.”

Application to review decisions under FOI Act: request to vary confidentiality order

Clause 4 of Deputy President McDonald’s order dated 18 April 2008 was to the effect that the Commissioner lodge with the Tribunal and give to ABCD and ASIC:
“… An amended Statement of Facts Issues and Contentions and Amended Affidavit evidence in light of the applicant’s knowledge of ASIC as an author or source of information in the documents.”[38]
[38] Affidavit of Paul Edward Sokolowski sworn 18 September 2008, Exhibit PES-9

In a letter dated 13 May 2008 to the Tribunal, the Commissioner’s solicitors advised that he abandoned his claims for exemption and no longer sought to rely on certain references in four paragraphs of Mr Phillip Long’s affidavit dated 14 February 2008 and in two paragraphs in Mr Ian Shaw’s affidavit of the same date. They also wrote:
“Phillip Long’s affidavit is subject to a Confidentiality Order by the Tribunal dated 20 February 2008. The Order was made at a time when the Applicant was not aware that certain documents concerned ASIC and the Order was obtained to protect ASIC’s identity. The Respondent now seeks to lift that Order so that the affidavit can be disclosed in full to the Applicant, with a copy of the marked-up version at Attachment A. ASIC consents to this request.”

The Tribunal does not appear to have considered that request although Deputy President McDonald made another order under s 35(2) on 26 February 2008. He restricted access to various documents lodged as part of the T documents but did not vary the order in relation to Mr Shaw’s affidavit.

Application to review decisions under FOI Act: issues relating to obligations under ss 59 and 59A of the FOI Act

Sections 27 and 27A of the FOI Act oblige an agency or Minister to give a person a reasonable opportunity to make submissions that a document is an exempt document under s 43 or 41 as the case may be if two criteria are met. The first is that the request relates to documents containing information concerning, in summary, that person’s business, commercial or professional affairs or personal affairs. The second is that the agency or Minister decides to grant access to the documents under the FOI Act. If, after considering the submissions, the agency or Minister decides that the documents, or those parts containing that information, are not exempt under ss 43 or 41 as appropriate, it must give written notice of its decision to the person.[39] The purpose of the notice is to enable the person to apply to the Tribunal for review of the decision.[40]
[39] FOI Act, ss 27(2) and 27A(2)
[40] FOI Act ss 59(1) and 59A(1)

Sections 59(3) and 59A(3) are concerned with the situation in which the agency or Minister has decided not to grant access to a document containing a person’s business or personal information but the person requesting access has applied to the Tribunal for review of the decision. Those sections oblige the agency or Minister to take all reasonable steps to notify those persons of the application.

These obligations arose in this case and they were raised by the Commissioner’s solicitors in a letter dated 18 August 2008. They were raised as notification of the parties would be a breach of the confidentiality orders. I made an order on 27 August 2008 varying the confidentiality order to enable notification to be given. Substantive issues associated with that notification were the subject of my further order made on 10 September 2008.

WHAT DOES IT MEAN TO BE MADE A PARTY TO A PROCEEDING IN THE TRIBUNAL?

As the initial concerns of Ms Davies SC and Ms McNicol of counsel were focused on the role of ASIC in these proceedings, I will start with a consideration of the role of what is often referred to in the Tribunal as the “party joined”. That is a short hand and convenient way to describe a person or entity in the position in which ASIC finds itself in this case. I am mindful, though, that the correct description of ASIC’s position is that of a “person who has been made a party to the proceeding”[41] where the “proceeding” is a “proceeding before the Tribunal for a review of a decision”.[42] I think that it is important to bear the proper description in mind for the descriptor “party joined” has connotations in civil proceedings in the courts that are not necessarily applicable in a matter before the Tribunal. That is a matter to which I will return.
[41] AAT Act, s 30(1)(d)
[42] AAT Act, s 30(1)

The AAT Act has various provisions relating to persons other than the person applying for review of a decision and the decision-maker who made the decision. Although it will require me to analyse those provisions in some detail, I think it necessary to do so in order to understand the various ways in which a person may participate in a hearing and the extent of that participation.

The parties to a proceeding before the Tribunal for review of a decision

I will start with s 30(1) of the AAT Act which identifies the parties. It provides:
“Subject to s 42A(2)(b), the parties to a proceeding before the Tribunal for a review of a decision are:
(a)any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;
(b)the person who made the decision;
(c)if the Attorney-General intervenes in the proceeding under section 30A – the Attorney-General; and
(d)any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A).”

The Attorney-General is deemed to be a party to certain proceedings[43] and in others a State Attorney-General.[44] I will return to these provisions below.[45]

[43] AAT Act, ss 36(3A) and 36A(2A)

[44] AAT Act, ss 36B(4) and 36C(3)

[45] See [64]-[74]

Section 60 of the FOI Act makes particular provision in respect of the parties to proceedings under Part VI for the review of decisions. It provides that:
“For the purposes of this Part and of the application of the Administrative Appeals Tribunal Act 1975 in respect of proceedings under this Part:
(a)a decision given by a person on behalf of an agency shall be deemed to have been given by the agency;
(b)in proceedings by virtue of section 56,^[[46]] the agency or Minister to which or to whom the request was made shall be a party to the proceedings; and
(c)in proceedings for the determination of a question referred to in subsection 58(4), (5) or (5A)^[[47]] in relation to the document, the Minister who is the appropriate Minister for the purposes of section 58A in respect of that document shall, upon application to the Tribunal, be entitled to be a party to the proceedings.”
[46] For the purposes of s 55 of the FOI Act, s 56 deems a decision refusing a request to have been made when the person making the request has not received a decision within the prescribed time. The person may apply to the Tribunal for review of the deemed decision.
[47] Sections 58(4), (5) and (5A) relate to applications in which a certificate is in force under ss 33, 33A, 34, 35 or 36.

Given the fact that no reference is made to the applicant’s being a party to an application made to the Tribunal for review of a decision as provided for in s 55 of Part VI of the FOI Act, s 60 must be read as supplementing s 28 of the AAT Act and not as varying its provisions.

Identifying a proceeding before the Tribunal for review of a decision

It is apparent from its opening words that s 30(1) is identifying those who are “the parties to a proceeding before the Tribunal for review of a decision”. Taken alone, the word “proceeding” is given a very broad definition by s 3(1)[48] but, when read with those opening words, it is clear that it is used in s 30(1)(d) in the sense given in (a) i.e. of “an application to the Tribunal for review of a decision”.[49] That is to say, the reference in s 30(1)(d) to the “proceeding” to which “the person who has been made a party” must be read as a reference to the words preceding all four paragraphs i.e. as a reference to “a proceeding before the Tribunal for a review of a decision”.
[48] “proceeding, in relation to the Tribunal, includes:
[49] Paragraph (a) of the definition of “proceeding” in AAT Act, s 3(1)

Are the terms in which the Tribunal is given power to join a party consistent with the way in which a party is identified in s 30(1)(d)? Section 30(1A) provides:
“Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interest may be affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.”

Four criteria must be satisfied before a person becomes a party to a proceeding by virtue of the Tribunal’s order. First, an application must have been made for review of a decision. Second, a person claiming to have interests that may be affected by the decision must have applied in writing to be made a party to the proceeding. Third, the Tribunal must be satisfied that the person is a person whose interests are affected. If it is so satisfied, and not otherwise, it must decide whether it should exercise its discretion to make an order. That is the fourth criterion.

Each criterion is essential and their order cannot be varied. The upshot is that the Tribunal can only exercise its power to make a person a party, and, apart from a decision-maker, a person can only be a party to a proceeding that is properly characterised as “a proceeding before the Tribunal for a review of a decision”. That will be the proper characterisation of applications made when as provided in s 25(1) of the AAT Act:
“An enactment … [provides] that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”[50]
[50] Section 25(4) of the AAT Act complements s 25(1) by giving the Tribunal power to review a decision in respect of which such an application is made.

The FOI Act is an enactment under which the application for review of decision in this case was made. The application is properly characterised as “a proceeding before the Tribunal for a review of a decision” as referred to in the opening words of s 30.

The proper characterisation of some other applications referred to in the definition of “proceeding” are less clear. The AAT Act itself comes within the definition of an “enactment” in s 3(1) and it could be argued that s 25(1) may be read as providing that applications may be made to the Tribunal for review of decisions made in the exercise of powers it confers. The AAT Act does make provision of that sort. There are several instances in which it has provided for review by the Tribunal of what could be described as “decisions” made under the AAT Act.

One occurs when s 28(1AC) provides that the Tribunal shall, on an application’s being made, decide whether the applicant was entitled to be given a statement of reasons for a particular decision even though the decision-maker has expressed an “opinion” given under s 28(1AA) that he or she is not so entitled. The person will have requested the statement under s 28(1) if he or she was “entitled to apply to the Tribunal for a review of the decision” concerned. The statement he or she requests will be “a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision”.[51] When the person’s request for a statement is refused and he or she applies to the Tribunal, the question that the Tribunal must decide is “whether the applicant was, or was not, entitled to be given the statement”.[52] The application is not made for review of the decision in respect of which the person seeks the statement or even of the decision to refuse to give the statement. That will be the subject of a separate application should the person decide to seek review of it. The only question that the Tribunal can decide and so review is the applicant’s entitlement or otherwise to the statement.
[51] AAT Act, s 28(1)
[52] AAT Act, s 28(1AC)

Another instance in which the AAT Act itself provides for review occurs when the Registrar, a District Registrar or a Deputy Registrar has taxed costs under s 69A(1)(d). Either party may apply to the Tribunal under s 69A(2) for review of the amount taxed under s 69A(1)(d).[53]
[53] AAT Act, s 69A(2)

Although both applications made to the Tribunal could be said to have been made in respect of a decision, be it a decision to have a particular opinion or a decision that costs should be taxed at a certain amount, neither ss 28(1AC) nor 69A(2) is framed in terms of review of a “decision”. One is of an opinion and the other of the amount taxed. Different wording is used in (c) of the definition of “proceeding” to describe the subject matter of s 69A(2) when it describes it as:
“an application to the Tribunal for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid”.

The difference in wording is concerning. A consideration of the power in s 69A(2) itself suggests that Parliament’s careful avoidance of the word “decision” and its separate identification of a proceeding in s 69A(2) in (c) of the definition of “proceeding” in s 3(1) from that of an application for review of a decision would lead to the conclusion that they are indeed separate types of proceedings. That would appear to be the conclusion that is applicable in relation to s 28(1AC). The nature of the enquiry or review that arises from applications under s 28(1AC) and 69A(2) when compared with those seeking review of a decision of the substantive sort envisaged by an application for review of a decision of the sort provided for in s 25(1) is necessarily limited. It leads me to conclude that an application made to the Tribunal under either s 28 or 69A is neither an “an application to the Tribunal for review of a decision” nor a “proceeding before the Tribunal for review of a decision” of a sort encompassed within s 30.

Paragraph (e) concerns an application made to the Tribunal under s 62(2) of the FOI Act. It differs from an application made under s 28(1AC) of the AAT Act. Rather than being called on to make a decision whether the applicant was entitled to be given a statement of reasons as required by s 28(1AC), s 62(2) calls upon the Tribunal to consider the adequacy of a statement of reasons furnished under s 26(1) of the FOI Act. If it considers the statement inadequate in the ways provided for in s 62(2), it may make a declaration accordingly. Despite the differences, the reasoning relating to s 28(1AC) is equally applicable and leads to the same conclusion. An application for a declaration under s 62(2) of the FOI Act is not a proceeding for review of a decision of the sort referred to in s 30(1) of the AAT Act.

The specific reference to s 62(2) of the FOI Act in the definition of “proceeding” in the AAT Act brings into focus the lack of specific reference in that definition to an application made under s 28(5) of the AAT Act. This is the provision that mirrors s 62(2) by enabling an applicant to make an application for a declaration that the statement of reasons given in respect of a decision is inadequate for a reason stated in the section. Its lack of reference means that it is encompassed within the more general catch all provision of (f) of the definition of “proceeding” i.e. “any other application to the Tribunal under this Act or any other Act”. Even so, it will not be a proceeding for review of a decision but an application for a declaration.

What of the other applications referred to in the definition of “proceeding” in s 3(1) of the AAT Act? An application for a costs certificate under s 10A of the Federal Proceedings (Costs) Act 1981 is not a proceeding for a review of a decision but an application to make a decision in the first place. That is the subject of (d) of the definition of “proceeding”. Applications referred to in (f) (“any other application to the Tribunal under this [AAT] Act or any other Act”) and (g) (“any other matter referred to the Tribunal for inquiry and/or review under this Act or any other Act”) will depend on their subject matter and the purpose for which the application was made.

Referring to (f) of the definition of “proceeding”, I will give two examples. Provision is made in s 21A(1) of the AAT Act for a party to a proceeding to apply to the Tribunal that it be reconstituted. That is not an application for review of a decision. Provision is made in s 42A(8) for a person to apply to the Tribunal for reinstatement of an application dismissed under s 42A(2). That is not an application for review of a decision and the power given to the Tribunal under s 30(1A) does not extend to joining a person as a party to it. In both cases, the application would be an application to the Tribunal under the AAT Act so that it is a “proceeding” within the meaning of (f) but in neither case could it be said to be either an application or a proceeding for a review of a decision.

An incidental application referred to in (h) cannot, by its very nature be a proceeding before the Tribunal for a review of a decision. Its purpose is necessarily incidental to the purpose sought to be achieved by the application seeking review of the decision. It is not itself an application for review of a decision and s 30(1A) does not give the Tribunal power to entertain an application to be made a party to an incidental application of that sort.

Attorney-General and State Attorneys-General may be a party to a proceeding otherwise than by an order made under s 30

A. Intervention

It is clear from s 30(1) that the Attorney-General is a party to a proceeding before the Tribunal for review of a decision if intervening under s 30A of the AAT Act. Section 30A does not apply to a proceeding in the Security Appeals Division of the Tribunal.[54] Section 30A(1) provides that “The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding before the Tribunal.” Section 30A(2) goes on to provide that:
“Where the Attorney-General intervenes under subsection (1) in a proceeding for a review of a decision, the Attorney-General may authorize the payment to a party to the proceeding by the Commonwealth of such costs as he or she considers were reasonably incurred by that party in relation to the proceeding as a result of that intervention.”
[54] AAT Act, s 30(1AA)

Reading ss 30A(1) and (2) together suggests that the Attorney-General may intervene in a proceeding other than a proceeding for review of a decision but his power to authorise the payment of costs is limited to the situation in which he intervenes in a proceeding for review of a decision. It is possible to envisage a situation in which the Attorney-General may want to intervene in a proceeding other than a proceeding for review of a decision. Although it may never happen, he may, for example, want to intervene in a proceeding to hear an application for a declaration under s 28(5) that a statement of reasons is inadequate in circumstances in which he has certified that disclosure of certain information would be contrary to the public interest under s 28(2) of the AAT Act. A reading of s 30A suggests that the Attorney-General would be a party to the proceeding to hear the application under s 28(5). That would be consistent with the position in civil proceedings in the courts. It was explained by Hutley JA in Corporate Affairs Commission v Bradley; Commonwealth of Australia (Intervener):[55]
“ A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Thus he can appeal, tender evidence and participate fully in all aspects of the argument. His position is quite different from that of an amicus curiae. Interveners have been allowed to appeal. Thus the Attorney-General of the Commonwealth appealed to the Privy Council in Attorney-General (Cth) v R (the Boilermaker’s case) (1957) 95 CLR 529; [1957] AC 288, though he was only an intervener in R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 in the High Court.”[56]
[55] [1974] 1 NSWLR 391
[56] [1974] 1 NSWLR 391 at 396

Reference to s 30(1)(c) casts some doubt on the conclusion that s 30A is intended to permit the Attorney-General to intervene in a proceeding other than an application for review of a decision. Certainly, the Attorney-General’s intervention in a proceeding for review of a decision is enough to make him a party to it according to s 30(1)(c) but, if s 30A is intended to have a wider focus, why is no reference made to that in s 30? The answer may be that s 30 is intended to make provision only for parties in relation to a proceeding for review of a decision and the situation in other proceedings that may arise under s 30A is to be left to be decided that intervention, if permitted, necessarily leads to the intervener’s becoming a party to the proceeding concerned. That is consistent with the role that the court regards the intervener as playing. That role is apparent from the basis upon which the court decides whether to give a person leave to intervene. The principles guiding the exercise of the Court’s discretion were expressed by the High Court in Levy v State of Victoria and Others[57] were:
“…[W]here a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene. The grant may be limited, if appropriate, to particular issues and subject to such conditions, as to costs or otherwise, as will do justice as between all the parties. In that situation, intervention may prevent an error that would affect the interests of the intervener. Of course, if the intervener’s submission is merely repetitive of the submission of one or other of the parties, efficiency would require that intervention be denied …”[58]
[57] (1997) 189 CLR 579; 146 ALR 248
[58] (1997) 189 CLR 579; 146 ALR 248 at 603-4; 258-259 per Brennan CJ

Those principles do not apply to s 30A for the Attorney-General may intervene as of right but they illustrate the role that he would play if he chooses to intervene. There is no reason why the Attorney-General might not want to play that role in a proceeding other than a proceeding that is an application for review of a decision. The nature of the Attorney-General’s intervention would have to be examined in each case to determine whether he is a party to the proceeding for review of the decision by virtue of s 30(1)(c) or a party to another type of proceeding by virtue of choosing to exercise the right to intervene.

B.Certification that disclosure of information or matter in a document contrary to the public interest

Sections 36 and 36B of the AAT Act provide for situations in which the Attorney-General in the former or a State Attorney-General in the latter have certified that the disclosure of information concerning a certain matter or the disclosure of a matter contained in a document would be contrary to the public interest for a reason stated in s 36(1) in one case or 36B(1) in the other. One reason common to both is that disclosure would disclose deliberations or decisions of the Cabinet or of a Committee of Cabinet[59] but the Attorneys-General are not limited to reasons specified under those provisions. They may formulate other reasons why disclosure would be contrary to the public interest. As s 36(1)(c) provides, the Attorney-General may state that disclosure would be contrary to the public interest:
“for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the document should not be disclosed.”[60]
[59] AAT Act, ss 36(1)(b) and 36B(1)(a)
[60] See also AAT Act, s 36B(1)(b) in relation to State Attorneys-General.

Where the Attorney-General gives a reason within the compass of s 36(1)(c) but not within that of ss 36(1)(a) or (b), the Tribunal is required to consider whether the information or the matter should be disclosed to all or any of the parties to the proceeding. In doing so, it must have regard to the matters specified in s 36(4). If it decides that the information or matter should be disclosed, the Tribunal must make the information available or permit inspection of the part of the document containing the information. Section 36(3A) then provides:
“Where, in relation to a proceeding to which the Attorney-General would not, but for this subsection, be a party, the Attorney-General certifies in accordance with subsection (1) that the disclosure of information, or of a matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a) or (b), the Attorney-General shall, for the purposes of this Act, be deemed to be a party to the proceeding.”[61]
[61] See also AAT Act, s 36B(4) in relation to State Attorneys-General.

No reference is made to a proceeding before the Tribunal for review of a decision and so no suggestion that the proceeding to which the Attorney-General is deemed to be a party is necessarily that type of proceeding. It can easily be conceived that information of the sort that the Attorney-General might want to protect could be relevant in a proceeding such as that under s 35 regarding confidentiality, s 41 regarding a stay of the operation or implementation of a decision or an alternative dispute resolution process under Division 3 of Part IV of the AAT Act (ADR process). All would be incidental applications within the meaning of (h) of the definition of “proceeding” in s 3(1).

C.Opinion of Attorney-General or State Attorneys-General that answering question in course of giving evidence contrary to the public interest

Sections 36A and 36C of the AAT Act provide for the situation in which a person is asked a question in the course of giving evidence. The former does in relation to the Attorney-General and the latter in relation to the State Attorneys-General. They are drafted in similar terms to the same effect and I will refer only to the provisions of s 36A.

The Attorney-General is permitted to inform the Tribunal that, in his opinion, the person’s answering the question would be contrary to the public interest for a reason given in s 36(1). The person is excused from answering the question unless, in a case in which the Attorney-General has relied on a reason in ss 36(1)(a) or (b), a court decides on an appeal under s 44 or a reference under s 45 that answering the question would not be contrary to the public interest or, in any other case, the Tribunal decides that it would not be.[62]
[62] AAT Act, s 36(2)

Section 36A(2A) provides:
“Where the Attorney-General informs the Tribunal that, in his or her opinion, the answering by a person of a question at the hearing of a proceeding would be contrary to the public interest, being a proceeding to which the Attorney-General would not, but for this subsection, be a party, the Attorney-General shall, for the purposes of this Act, be deemed to be a party in the proceeding.”

This section is very similar to that in s 36(3A) and so would appear to suggest that the Attorney-General may be deemed to be a party to a proceeding other than simply an application for review of a decision. It appears to be the case even more strongly when regard is had to the fact that one of the effects of s 40(7) is to authorise the person holding a directions hearing or conducting an ADR process to take evidence as well as summons persons to give evidence and/or produce documents.

There is, though, a difference between ss 36 and 36A. Under s 36, information certified to be confidential for a reason given in ss 36(1)(a) or (b) must be kept confidential without recourse to review. Section 36A does permit recourse to review. Confidentiality of information of the sort that would be disclosed in response to a question asked in a hearing of a proceeding can be challenged but the challenge is specifically said to be an appeal under s 44 or a referral under s 45. Although appeals under s 44 are generally limited to final decisions on applications for review of decisions,[63] s 44(2) makes it clear that Parliament envisaged an appeal from a decision in relation to a preliminary proceeding to decide whether interests are affected by the decision in respect of which an application has been made to the Tribunal. In light of that, the provision for an appeal under s 36A(2)(a) should not be read as limiting the meaning of the word “proceeding” to a proceeding for review of a decision. It should be read in its wider sense to include a proceeding of the sort at which a person may be required to give evidence before the Tribunal. That would certainly include a proceeding to give directions under s 33 of the AAT Act and an ADR process as well as a proceeding for the review of a decision.[64]
[63] Director-General of Social Services v Chaney (1980) 31 ALR 571 at 593-594 per Deane J and 596 per Fisher J, Northrop J dissenting
[64] AAT Act, ss 40(1), (1A) and (7)

Section 60 of the FOI Act

Section 60 of the FOI Act supplements s 30(1) of the AAT Act. Section 60(b) does so by requiring that the agency or Minister to whom the request for access was made is a “party to the proceedings”. Putting aside the reference to “proceedings” and not to “proceeding” for the moment, that is necessary because s 56 is predicated upon their not having made a decision on the request. It deems a decision to have been made for the purpose of enabling an application for review to be made to the Tribunal. But for s 60(b), neither would be a party to that application for s 30(1)(b) of the AAT Act applies only to the person who made the decision and not to the person deemed to have done so.

Section 60(c) provides that a Minister is “entitled to be a party” to the proceedings for the determination of a question referred to in ss 58(4), (5) or (5A) of the FOI Act. Its drafting is different from that used in s 30(1) of the AAT Act. The difference between the two may suggest that the Minister does not become a party unless he or she wishes to do so. If that is his or her desire, he or she becomes a party by virtue merely notifying the Tribunal that he or she wishes to do so without the Tribunal’s exercising its power under s 30(1A) of the AAT Act. Whether that is so is a question for another day.

Sections 60(b) and (c) are each expressed in terms of “proceedings” rather than in terms of “proceeding” as favoured by s 30 of the AAT Act and, except where used in the plural or referring to “proceedings” other than in the Tribunal, by the AAT Act generally. The word “proceedings” does not seem to be used in its plural sense in s 60(1)(b). Instead, it seems to be used in the sense of “legal action”.[65] If that is the case, presumably it is intended to be read in s 60(b) as a reference to the proceeding before the Tribunal for review of the decision deemed to have been made by virtue of s 56.
[65] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

The reference in s 60(c) is more problematic. It relates to applications made to the Tribunal for review of a decision when a Minister has issued what is generally called a “conclusive certificate”. In that situation, the role of the Tribunal is limited to determining the question whether there exist reasonable grounds for the claim that the document is exempt as provided in one or other of ss 33, 33A, 34, 35 or 36 of the FOI Act. Determination of that question occurs only after an application is or has been made. The particular question that the applicant asks the Tribunal to determine when a certificate has been issued in respect of a document claimed to be exempt is either:
whether there exist reasonable grounds for the claim that the document is exempt in the case of ss 33, 33A, 34 and 35 or whether disclosure would be contrary to the public interest in the case of s 36; or
whether, in the case of a certificate in force under ss 33(4) or 33A(4), there exist reasonable grounds for the claim that information as to the existence or non-existence of the document described in the request would, if contained in a document of the agency cause the document to be exempt for a reason referred to in s 33(1) or, in the case of 33A(4), cause the document to be exempt for a reason referred to in s 33A(1) and not cause the document to be a document containing matter the disclosure of which would be, on balance, in the public interest.
No provision is made for an application to be made to the Tribunal for review of the decision to issue the certificate. “[P]roceedings for the determination of a question referred to in subsection 58(4), (5) or (5A)” must be read as referring to the limited part of the proceeding that is directed to the determination of the question. The Minister is entitled to be a party to the proceedings in that sense but not to the proceeding that is the proceeding for the review of the decision in its entirety.

The distinction between the proceeding for determination of the question and for the review of the decision to refuse access in accordance with the request is maintained in the special constitution provisions relating to the determination of the question. Section 58B of the FOI Act is concerned with the constitution of the Tribunal. Without going into detail, I note that s 58B(1) provides:
“Where a request is made to the Tribunal in accordance with subsection 58(4), (5) or (5A), the Tribunal shall be constituted in accordance with subsection (2) for the purposes of any proceeding for the determination of the question to which the request relates.”

Section 58C regulates the procedure of the Tribunal at “the hearing of a proceeding referred to in subsection 58B(1)”.[66] It dictates that the Tribunal “shall hold in private the hearing of any part of the proceeding during which evidence or information is given, or document is produced, to the Tribunal by …” the agency or Minister or a submission is made on their behalf.[67] The Tribunal may direct those who may be present where “the hearing of any part of a proceeding is held in private” in accordance with s 58C(2).[68] These provisions seem to me to support the conclusion that the “proceeding” to which 58B(1) refers is the proceeding for the determination of the question to which the request relates. In view of that, the reference in s 60(c) to “proceedings for the determination of a question referred to in subsection 58(4), (5) or (5A)” must be read as proceedings of the type referred to in s 58B(1). They do not encompass the proceedings that are application to the Tribunal for review of decisions although, for all practical purposes, they will take place in the course of those proceedings.
[66] FOI Act, s 58C(2)
[67] FOI Act, s 58C(2)(a)
[68] FOI Act, s 58C(3)(a)

Provisions of the AAT Act relating to person’s being a party

Section 32 of the AAT Act provides that:
“At the hearing of a proceeding before the Tribunal, a party to the proceeding may appear in person or may be represented by some other person.”

On its face, this section does not limit itself to a proceeding before the Tribunal for review of a decision.

The AAT Act does not expressly describe the role of a party in general terms. There are some guides, though. One is directed to the party who is the person who made the decision. That person:
“In a proceeding before the Tribunal for a review of a decision, … must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.”[69]
[69] AAT Act, s 33(1AA)

The provisions of s 42A do not impose express obligations on the parties but they implicitly require attendance at certain proceedings. They do so by providing consequences if they do not appear in certain circumstances. Section 42A(2) provides:
“If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant – dismiss the application without proceeding to review the decision; or
(b)in any other case – direct that the person who failed to appear shall cease to be a party to the proceeding.”

It is clear from the opening words that the provision applies to certain circumstances concerning “a proceeding … in respect of an application for the review of a decision” (emphasis added). Two of the three failures described in s 42A(2) go on to focus upon that application for review of a decision. One is the application for review of decision itself. The other is a referral to an ADR process. That there is an ADR process at all is dependent upon there having been an application made to the Tribunal for review of a decision.[70] If that is so, s 34A(1) provides that:
“… the President may:
(a)direct the holding of a conference of the parties or their representatives in relation to the proceeding, or any part of the proceeding or any matter arising out of the proceeding; or
(b)direct that the proceeding, or any part of the proceeding, or any matter arising out of the proceeding, be referred for a particular alternative dispute resolution process (other than conferencing).”
[70] AAT Act, s 34A(1)

The third failure described in s 42A(2) centres on the directions hearing. Section 33(1)(a) provides that:
“In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal.”

It is broad enough to provide for the Tribunal to give directions in relation to any proceeding of the sort defined in s 3(1). If a party to a proceeding in respect of an application for review fails to appear in person or by a representative at a “directions hearing”, the Tribunal’s power under s 42A(2) is enlivened. Such a proceeding would encompass a directions hearing in relation to a proceeding such as those arising under ss 35 and 41 of the AAT Act for they could be said to be “in respect of an application for review”. Failure to appear at a proceeding that is the hearing of the sort arising under ss 35 and 41 would not, however, enliven the Tribunal’s power under s 42A(1) for the hearing could not be said to be a “directions hearing”. It is, instead, a hearing directed to assisting the Tribunal to decide whether or not it should make an order of the sort provided for in those sections.

If the Tribunal makes a person a party to the proceeding under s 30(1A) must it do so in relation to the whole proceeding or may it do so in relation to part of the proceeding?

I have spent a little time in reviewing the position of the Attorney-General and of the State Attorneys-General under ss 36 to 36C as those sections make clear that it is feasible that there are circumstances in which they may be deemed to be a party to a proceeding other than a proceeding that is the application for review itself. The intervention provision in s 30A also makes clear that the Attorney-General may, by virtue of an intervention, become a party to a proceeding that is an application for review of a decision or a party to another proceeding within the meaning of (b) to (h) of the definition of that term in s 3(1) of the AAT Act. That is background that is a relevant factor when examining the scope of the power given by s 30A(1). So too is the drafting of s 60 of the FOI Act. On my understanding of s 60(c), it entitles the appropriate Minister to be a party to the proceeding that that is proceeding for the determination of a particular question rather than to the proceeding that is the application for review of the decision within whose context the question arises for determination.

Section 30(1A) of the AAT Act is not a deeming provision but a source of power. That power is expressed in terms of making a person a party to “the proceeding” and, as I have already said, it seems clear that this is the proceeding for an application for review of a decision. It is suggested that the power may be exercised to make a person a party to “part” only of the proceeding in some way or to be a party in relation to some only of the issues that it raises and that must be decided by the Tribunal on review of the decision.

An examination of s 30(1A) and of the provisions of the AAT Act as a whole lead me to a contrary conclusion. As I have found, ss 36 to 36C as those sections make clear that it is feasible that there are circumstances in which they may be deemed to be a party to a proceeding other than a proceeding that is the application for review itself. Having specified that the applicant to be made a party must be a person whose interests are affected by the decision, it would have been simple for Parliament to take a similar approach and to give the Tribunal the power to make it a party to the proceeding only to the extent that its interests were affected. It did not do so and there is nothing on the face of s 30(1A) specifically or of s 30(1) generally that suggests that Parliament intended the power to be read in that way. Equally, there is nothing in the provisions of s 42A(2)(b) that suggests that the Tribunal may direct that the person who failed to appear shall cease to be a party to a part only of the proceeding. The power is to direct that the person who failed to appear shall cease to be a party to “the proceeding” and not to “the proceeding or part of it”.

Although I appreciate that the principles that underpin merits review of administrative decisions are different from those underpinning the resolution of civil cases in the courts, I have spent a moment considering the position in the courts. After all, it is clear from many of the reasons for decision given in earlier years that the provenance of many of the principles underpinning the AAT Act lies in the general law.

A court is concerned with claims in its civil jurisdiction. Looking to the Supreme Court of Victoria (Supreme Court) as an example and intending to give only a flavour of the position that prevails in it, I note that a plaintiff may join any number of claims against a defendant.[71] Rule 9.02 provides that two or more persons may be joined as plaintiffs or defendants in any proceeding:
“(a) where:
(i)if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; and
(ii)all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions;
(b)where the Court, before or after the joinder, gives leave to do so.”

Rule 9.02(b) would permit the joinder of a claim by a plaintiff against a defendant with claim by another plaintiff against another defendant. Order 18 applies if a plaintiff or defendant represents some or all of the persons having the same interest.

[71] Supreme Court (General Civil Procedure) Rules 2005 (SCV Rules), r 9.01

A defendant may raise a claim for relief in the same proceedings by a counterclaim against the plaintiff alone in accordance with r 10.02. The defendant is then treated as the plaintiff and the plaintiff as the defendant for the purpose of the joinder of claims under r 9.01.[72] The defendant may join another person with the plaintiff as defendant to the counterclaim.[73]
[72] SCV Rules, r 10.02(2)
[73] SCV Rules, r 10.03

Rule 11.01 refers to a claim by a defendant against what is called a third party i.e. a party not already a party to the proceeding. It provides that, where the claim is for:
“(a) any contribution or indemnity;
(b)any relief or remedy relating to or connected with the original subject matter of the proceeding and substantially the same as some relief or remedy claimed by the plaintiff; or
(c)that any question relating to or connected with the original subject matter of the proceeding should be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party –
the defendant may join the third party as a party to the proceeding and make the claim against that third party by filing and serving a third party notice.”

Although the precise proceeding in which ABCD is involved in the Tribunal is protected from public scrutiny, the fact that he has applied for review of the Commissioner’s objection decisions is not confidential. The general nature of the enquiry that the Tribunal will conduct in reviewing that decision is not confidential but found in the TA Act. When reviewing a reviewable objection decision, the Tribunal is, unless it otherwise orders, “… limited to the grounds stated in the taxation objection to which the decision relates”.[158] If the taxation decision concerned is an assessment other than a franking assessment, the applicant for review has the burden of proving that the assessment is excessive.[159] Foster J explained its task in the following way:
“ It is abundantly clear, of course, that even though the Tribunal does over again the work of the Commissioner, it does it in a significantly different way. Although it could be said to be part of an administrative hierarchy, its functions partake far more of the Court than of the office desk.
It is clearly not cast in the role of the inquisitor. Although it does not act within the confines of formal pleadings, it is constrained in its inquiries and deliberations by the ambit of the taxpayer’s objections. Although it is not bound by the rules of evidence (sec. 33(1)(c)) in reaching its decision it must act upon the evidence which is placed before it. …”[160]
[158] TAAct, s 14ZZK(a)
[159] TA Act, s 14ZZK(b)(i). A “taxation decision” includes an assessment against which a taxation objection has been made: TA Act, s 14ZQ.
[160] Eldridge v Federal Commissioner of Taxation (1990) 90 ATC 4907 at 4,921

Confidentiality surrounding ABCD’s application for review of the Commissioner’s reviewable objection decisions was lost when he appealed to the Federal Court from a decision of the Tribunal refusing to exercise the power given by s 37(2) of the AAT Act. The judgment of the Full Court of the Federal Court was published without restriction. Reference was made to the fact that the Tribunal’s decision and reasons for decision remain unavailable to the public but, once ABCD requested that the proceedings be held in private, a reading of ss 14ZZE and 14ZZJ(2D) means that is the inevitable result. Section 14ZZJ(2D) only requires the Tribunal to ensure “as far as practicable” that its reasons are framed so as not to be likely to identify ABCD but, in light of the distinctive facts of the case, it is difficult to imagine a way in which it could do so without identifying ABCD if it published its reasons. There may be other reasons for maintaining the confidentiality in the Tribunal’s proceedings but I will not speculate on them.

Section 37(2) permits the Tribunal to require the person who made the decision under review to lodge further documents if it is of the opinion that they may be relevant to that review. When ABCD challenged the Tribunal’s refusal to require the Commissioner to lodge further documents, he sacrificed the confidentiality that he had enjoyed in the Tribunal. The fact that he had applied for review of the objection decisions and his identity were lost. The precise years of income in respect of which the Commissioner had issued amended assessments became known to the public as did the approximate amount of taxation and penalties in those amended assessments. Also revealed to the public was a summary of the documents on which the Commissioner relied in making the amended assessments and disallowing ABCD’s objections to those amended assessments. The Full Court of the Federal Court said:
“… the Commissioner relied on a number of documents which have been described throughout the proceeding as ‘foreign documents’. These included a transcript of examination of Mr Kennedy in Switzerland, a transcript of examination of another person and a number of letters. …”[161]
[161] Kennedy v Administrative Appeals Tribunal & Anor (2008) 103 ALD 238 at 240

Its judgment also gives the public an indication of the grounds on which ABCD objected to the amended assessments. Essentially there are two. First, the assessments were not made in good faith or were made for an improper purpose. Second, the material on which the Commissioner relied is of “doubtful authenticity”. Those grounds related both to the Commissioner’s assessment of the amount upon which, in his judgment, income tax ought to be levied under s 167 and to his amending the assessments, of which he had given ABCD notice more than two years before, because he was “of the opinion that there has been fraud or evasion”.[162]
[162] ITA Act, s 170(1), item 5

Also revealed by the Full Court’s judgment are the Tribunal’s decisions on these two matters and its reasons for them. On the first, the Tribunal decided that ABCD could not raise his challenge to the validity of the assessments on the ground that they were made in bad faith.[163] On the second, the Tribunal concluded that “… none of the additional documents sought by Mr Kennedy were relied on by the Commissioner for the purpose of forming the judgment as to the amount on which the tax ought to be levied. …”.[164] At the hearing of the appeal, the Commissioner acknowledged that the foreign documents had been relied on to make the amended assessments, form the opinion about fraud or evasion and to disallow his objection. ABCD’s submission to the Full Court was that:
“… the Tribunal is not confined to the material before the Commissioner as primary decision-maker or the events which occurred up to the time of the Commissioner’s decision. He says that the Tribunal must form its own judgment about the reliability, authenticity and probity of the material before it and is not bound by any laws of evidence. The foreign documents were among the documents which the commissioner lodged with the tribunal under s 37(1) of the AAT Act, and therefore it is said the commissioner clearly considered those documents necessary to the determination of the proceedings. Accordingly, Mr Kennedy argues, it would be procedurally unfair not to lodge the additional documents, which explain the provenance of the foreign documents, with the tribunal as they would assist the tribunal and Mr Kennedy assessing the reliability, authenticity and probity of the documents on which the Commissioner relied. …”[165]
[163](2008) 103 ALD 238 at 242-243
[164] (2008) 103 ALD 238 at 242
[165] (2008) 103 ALD 238 at 244

As to ABCD’s challenge to the validity of the amended assessments, the Full Court rejected it saying:
“… The Tribunal has jurisdiction to hear and determine the present review under Part IVC of the TAA because each assessment purports to have been made in exercise of powers conferred by that enactment. Whether or not the assessments were, as a matter of law, validly made does not attenuate this finding. …
… [I]f the Tribunal in this case were to make an administrative ruling that the Commissioner’s assessments were valid, this would not take effect as a binding determination of law, and the Commissioner would remain entitled to collect tax pursuant to the assessments subject to any determination by a court that those assessments were not valid. In this case, Mr Kennedy has elected to have the objection decisions referred to the Tribunal, yet he complains that the Tribunal cannot decide whether the assessments were correctly and validly made and does not have the jurisdiction which he has invoked. …”[166]
[166] (2008) 103 ALD 238 at 245

The Full Court noted that ABCD’s allegation that the assessments were made in bad faith is made without any evidentiary basis or any pleadings to substantiate the claim in relation to specific documents. He sought additional documents in order to explore whether there is any possible basis on which the claim could be substantiated. In doing so, he cast too wide a net and his request for the documents should be refused. As to ABCD’s submission directed to what he described as the documents’ “doubtful authenticity”, the Full Court said:
“… the application in this case which go to the provenance or authenticity of the documents already provided is premature. Those additional documents may or may not be eventually admitted into evidence. Given that Mr Kennedy has not explained how the documents sought would relate to the issues of authenticity or provenance (or any other matter), the content and relevance of those documents is the subject of mere speculation at this stage.”[167]
[167] (2008) 103 ALD 238 at 246

Ms Davies said in her submissions that, in the proceedings to review the Commissioner’s objection decisions regarding the amended assessments, the Tribunal:
“… will determine whether the assessments were properly made against the taxpayer. That is to say, it is in those proceedings that the Tribunal would determine whether the facts as found by the Tribunal by reference to the evidence support the conclusion that the taxpayer was wrongly assessed.
This Tribunal in these FOI proceedings does not discharge that function. This Tribunal in the FOI proceedings is not concerned with whether the documents which the applicant seeks access to support/contradict his liability to the tax as assessed. No findings are made about that. … Very different principles apply in respect of the determination under the FOI Act to what is to be determined under the Tax Act.
So the disclosure of those documents in these Tribunal proceedings is done so in a vacuum of there being no determination by this Tribunal as to whether those documents do or do not support the assessments which the taxpayer is challenging in the Part IVC proceedings. This is how it comes that there is a great deal of unfairness, and there is a great deal of prejudice to the applicant by disclosure in these proceedings. Disclosure in these proceedings leads to no resolution in the public domain about his liability in respect of the assessments one way or the other, that something is going to happen in later proceedings down the track.”[168]
[168] Transcript at 192

Relying on the decision of Deputy President Thompson in Re VC and Australian Federal Police,[169] Ms Davies submitted that:
“… we are being discouraged and deterred from exercising our statutory right of seeking access. We are being so discouraged and deterred by reason of the actual jeopardy to confidentiality in our part IVC proceedings, which is a statutory right. If ever there were an occasion for putting a case that people might be discouraged or deterred from making application to the Tribunal under the FOI Act because of removal of confidentiality, this is one such case. So if it is in those situations where a taxpayer seeks access to justice both under the part IVC process and under the FOI Act, in future taxpayers potentially could be substantially discouraged or deterred from exercising their rights under FOI if it has the consequences of undermining confidentiality in part IVC.”[170]
[169] (1985) 8 ALD 587
[170] Transcript at 194

When I suggested that the fact of ABCD’s having sought review of the Commissioner’s objection decisions relating to the amended assessments was already in the public arena as was his identity, Ms Davies responded that:
“… The Full Federal Court decision does not deal with the subject matter of the dispute. That is to say, apart from identifying the fact that there are assessments, and apart from identifying that the grounds upon which the taxpayer is challenging the assessments as propositions of statements of principle, there is no detail at all, there is no reference to the facts underpinning the assessments. That is to say, the Federal Court does not identify in any way the basis of the assessments.
It does not identify in any way how it is that the Commissioner supports those assessments. It does not identify in any way how it is that the taxpayer puts his case by reference to the facts that the assessments are excessive, or that the assessments are invalid. It identifies the fact that the taxpayer is challenging the validity of the assessments on certain grounds. …”[171]
[171] Transcript at 194-195

The way in which ABCD’s request has been formulated, Ms Davies submitted, means that the facts supporting those grounds are liable to be divulged in the course of the hearing to review the Commissioner’s decision to refuse access on the basis that the documents are exempt under s 38 of the FOI Act. ABCD’s argument centres on the Commissioner’s decision in respect of some documents to which he has already given him access on the basis that access assisted him to understand the basis of the amended assessments. Ms Davies continued:
“… What has been withheld are documents that concern the assessments, but which have not been released because it is not the decision-maker’s view that these documents are necessary to be given. That means an issue in these proceedings. There is a legal issue … as to whether there is such a qualification in respect of section 38 that only those – the secrecy provisions only apply insofar as a document is necessary to assist the taxpayer in understanding assessments.
… [T]hese documents are in dispute before this Tribunal because they do relate to the amended assessments: that is, they do concern how it is that the Commissioner supported the making of those assessments. An issue will be, does it contain third party information relating to those assessments. That requires consideration of who the third party is, how it impacts upon the assessments, considerations of who the third party is, how it impacts upon the assessments, considerations as to whether it is necessary or not necessary, those kinds of things.
… It will be part of these proceedings the Tribunal will be asked to consider whether the third party information is information which properly should be released in performance of the Commissioner’s duties so that the secrecy provisions do not apply. That requires going into each of the documents in detail in evidence.”[172]
[172] Transcript at 195-196

If ABCD were to be required to explore that issue in a public hearing, he would suffer a serious disadvantage. He has rights afforded to him by Part IVC of the TA Act and lifting the confidentiality order in the FOI proceedings would be inconsistent with those rights. Lifting it would deter him from exercising his rights under the FOI Act in order to protect those under Part IVC of the TA Act.

I am mindful that part of Ms Davies’ submission rests on the interpretation of s 38. This was not a matter on which either she or Mr Pearce or Mr Hanks made full submissions and this is not the time for me to attempt to express a concluded view. Despite that, I will make a couple of observations. It could be thought that, for all practical purposes, Ms Davies’ submission requires me to consider whether the Commissioner should produce the documents under s 37(2) of the AAT Act as modified by s 14ZZF(1)(b) of the TA Act. If the Commissioner were to decide that he should produce them and did produce them, he would not be in breach of s 16(2) because he would have done so “in the performance of the person’s duties as an officer” and so come within the qualification to s 16(2) found in s 16(3) of the ITA Act. What I will need to explore in due course is whether it is appropriate for the Tribunal to ask itself whether the Commissioner should produce them when deciding whether or not access should be given under the FOI Act.

As part of its exploration, the Tribunal would need to look to s 11(1) of

the FOI Act, which provides that:
“Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.”

That right is not affected by:

“(a) any reasons the person gives for seeking access; or
(b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access.”[173]

[173] FOI Act, s 11(2)

An enquiry of the sort that I understand Ms Davies to be suggesting could arguably lead me down the track of taking ABCD’s reasons for seeking access into account. Those reasons would be that the documents are relevant to the review in separate proceedings of the Commissioner’s objection decisions regarding the amended assessments. Arguably, the statement in s 11(2)(a) that the right of access is not affected by any reasons the person gives for seeking access means that they are not matters to which I am permitted to have regard. If that is so, then, except in two cases, the decision that is made on a request made under the FOI Act will be the same regardless of the identity of the person making the request and regardless of that person’s reasons for making the request. The exceptions occur under ss 41 and 43 when the person requests personal information or information relating, in summary, to his or her professional, business or commercial affairs.

It is also possible that the enquiry envisaged by Ms Davies could take me into an exploration of the provenance of the documents or even the veracity of the statements made within them. If such matters are relevant, I would think that their relevance would be in the context of the particular exemption claimed under Part IV of the FOI Act rather than in the context of ABCD’s application to review the Commissioner’s objection decisions. As I have said, these matters were not fully argued by the parties and I express no concluded view.

Ms Davies drew my attention to my decision in Re Kanina Banner Pty Ltd and Minister of Health and Ageing[174] and to the passage from the judgment of Brennan J in Re Pochi in which he said that “There must be a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public …”. My decision to make the initial order under s 35 in that case was based on the grave threat to the applicant’s continued existence should it be identified. That threat also represented a threat to the Tribunal’s ability to carry out its review function effectively if the applicant ceased to exist as the review would be rendered pointless. A similar, although not identical, threat was under consideration in the related decisions beginning Re VBJ and Australian Prudential Regulation Authority[175] and including Re An Applicant and Australian Prudential Regulation Authority and a Party Joined.[176] The threat under consideration in each case was essentially the impact that public knowledge of the decision and of the Tribunal’s proceedings would have on the applicants’ good names and on their ability to work in their chosen field in the future should the Tribunal ultimately set aside the decisions under review.
[174] (2002) 66 ALD 663
[175] (2005) 87 ALD 747; 41 AAR 97
[176] (2005) 89 ALD 643; 42 AAR 206

These cases do not reflect ABCD’s position in this. The public already knows that ABCD has lodged applications for review of the objection decisions made by the Commissioner in relation to the amended assessments. It knows the broad grounds on which ABCD challenges them. If it should be correct that I am required to consider whether the Commissioner should properly release certain information, I would be doing so in the course of the FOI proceedings. It is difficult to see how the enquiry would not be revealing the content of the proceedings to review the objection decisions. Although Ms Davies has submitted that he would be deterred from continuing those proceedings were I to revoke the confidentiality order, ABCD has not given any evidence to that effect. This is not a situation in which deterrence is a self evident consequence of my revoking the order.

I have also considered the issues raised by ss 33(1)(b), 37(1)(a), 37(2)(b), 40(1)(d), 41, 42 and 45. The enquiry that is required in reviewing the exemption decisions made under those sections is not dependent on the interest that ABCD may have in obtaining access to the documents. As with the consideration of the exemption claim made under s 38, the Tribunal must avoid “… the disclosure to the applicant of … exempt matter contained in a document to which the proceedings relate”.[177]
[177] FOI Act, s 63(1)(a)

Although I have not yet formed a concluded view regarding the proper interpretation of the secrecy provision in s 16(2) of the ITA Act, I do not think that the confidentiality order should be continued at this stage. The enquiry involved in reviewing the Commissioner’s reviewable objection decisions is directed to resolving issues that are quite different from the issues that must be resolved in the proceedings to review the Commissioner’s decisions under the FOI Act. In so far as the questions raised by s 16(2) reveal the fact that ABCD has already made an application for review that is already a matter in the public arena. So too is the general nature of the issues that will be raised in that proceeding. While I have a submission that ABCD will be deterred from pursuing his application for review of the reviewable taxation objections, I do not have any evidence to that effect. I have also considered Ms Davies’ submission that ABCD would wish to avoid further public disclosure at this stage. She put it this way:
“… [I]t’s not the fact that so much is in the public arena already. It’s the fact that the media are very excited by anything to do with my client, so that any aspect of this, any whiff coming to their attention, has the potential to cause another media frenzy. And it’s something that we wish to avoid at this point in time.”[178]
[178] Transcript at 113

It may be that vacating the order under s 35 will lead to media interest. It may be intense media interest as it would appear to have been in the past. Even if it is, I have difficulty in understanding how that will impinge upon the parties’ having a reasonable opportunity to present their cases as they are entitled to do. Members of the media who attend would be expected to behave like any member of the public and would not be permitted to disrupt the proceedings. On the information that I have to date, I see no reason why reports of the proceedings would impinge on the way in which the proceedings are conducted, on the parties’ ability to present their cases or on my ability to reach a decision unaffected by comments made by those who are not parties to ABCD’s application. Publicity of itself does not impinge in any of those ways and nor does public speculation during the course of a hearing. We are not taking part in a jury trial where some may have concern that jurors are not able to perform their task in a manner unaffected by public comment. Over the years, members of the Tribunal have dealt with cases in an environment in which media interest is not unusual. They have become used to confining themselves to reviewing decisions on the evidence and material presented at the hearing according to the law uninfluenced by what may or may not be reported in the press. I would not see this case as any different from those heard against a background of media interest in the past.

Taking these and all the matters to which I have had regard and the principles I have identified in these reasons, I am not persuaded that the reasons that have been put forward justify my continuing the orders that there be a private hearing or the orders prohibiting the publication or disclosure of the evidence and matters contained in documents.

I understand that ABCD may have prepared its case on the basis that it will explore the question whether third party information that is the subject of a claim for exemption under s 38 should be released in performance of the Commissioner’s duties so that the secrecy provisions do not apply. If he is correct, he may or may not wish to renew his application for an order under s 35 and support it with evidence. In view of that, there may be some merit in reaching a view of the proper interpretation of s 38 as a preliminary issue so that ABCD, the Commissioner and ASIC can consider their options in the future conduct of the proceedings.

Decision not to make order under s 35(2) precluding ASIC from the remainder of the hearing

At the hearing, I declined the request made on behalf of ABCD that ASIC should not be permitted to take part in the remainder of the hearing in any sense whether represented by an officer, solicitor or counsel. I have already expressed my view that ASIC is a party to the whole proceeding and so cannot be precluded on the basis that it was, in some way, a party to only that part of the proceeding that concerned its producing evidence and making submissions about eight of the documents in issue. The powers in s 33 are insufficient as they are procedural. A power to direct procedure cannot be used to curtail the right of a party to attend a hearing even if it can be used to limit the evidence that a party may give.[179] Only by exercising the power under s 35(2), could I prevent a party from attending part of the hearing. That would be achieved by an order effectively prohibiting disclosure of the evidence and submissions to it.
[179] See [86] above and, as an example of how I understand the limits on the powers in s 33 see Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558 at [101]-[102]

In view of my decision to revoke the order under s 35(2) so that the hearing is to be held in public, my decision to decline ABCD’s request to make an order under s 35(2)(c) to limit ASIC’s attendance at the hearing is irrelevant for all practical purposes. ASIC could attend as a member of the public even if I had not declined to make the order. Should I be found to be incorrect in my decision to revoke the order under s 35(2), I have set out my reasons for declining to make an order restricting ASIC’s attendance at the remainder of the hearing.

In Re Pochi and Minister for Immigration and Ethnic Affairs, Brennan J made some observations on the consequences of an order under s 35(2):
“ Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interest is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny a full opportunity to cross-examine upon, to comment on or to controvert the case against him – a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal. In Commissioner of Police v Tanos (1958) 98 CLR 383 at 395, 396 Dixon CJ and Webb J said: ‘For it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard …’ … There are, however, exceptions to the general rule which requires a party to have a fair opportunity of meeting the case against him – exceptions of varying content turning upon a variety of circumstances and statutory provisions. The exceptions are referred to by Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1962-1963) 113 CLR 475 at 503, 504: ‘And notwithstanding what Lord Loreburn said in Board of Education v Rice [1911] AC 179 at 182 about “always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view” the books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject matter: cf Ridge v Baldwin [1963] 2 WLR 935 at 947. As Tucker LJ said in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 in a passage approved by the Privy Council in University of Ceylon v Fernando [1960] 1 All ER 631 at 637, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: “the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth”. What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends on the circumstances.’”[180]
[180] (1979) 26 ALR 247; 2 ALD 33 at 271; 54-55

As Brennan J highlighted, I must have regard to the task in hand. That task is to review the Commissioner’s decisions that various documents are exempt under the FOI Act. ASIC has been found to have an interest in respect of eight of those documents and the information or matter they contain.

I have considered Ms Davies submission that:
“… these are closed proceedings, that the matters raised in these proceedings are confidential so that whatever knowledge Ms Birch derives from being present in these proceedings is not knowledge, in out submission, that she is at liberty to disclose to anyone and for any purpose except to the limited extent of obtaining instructions, if necessary, concerning the particular ASIC documents the subject of the exemption claims by ASIC and then to use the information solely for that purpose and furthermore, in our submission, that restriction would apply to the persons with whom Ms Birch seeks instructions – from whom she seeks instructions.”.[181]
[181] Transcript at 144

The basis of Ms Davies’ submission is not entirely clear to me. If it is that ASIC will attempt to disclose evidence or material contrary to the confidentiality order, I have no basis on which I could find that is so. If it is that ASIC may use evidence given or matters alluded to at the hearing to inform further enquiries that it may wish to make, I am not persuaded on the material that I have in this case that I should restrict the rights that it has as a party to protect its interests on the chance that it might do so.

There are two aspects to my reasons for my conclusion. The first is that I am not prepared to assume that the issues relevant to the eight documents and any other documents which refer to, or contain extracts or information from those documents have necessarily been raised and dealt with. There is the possibility that issues relating to the eight documents will arise. As a party, ASIC is entitled to remain at the hearing of the proceeding should that occur. It cannot rely on another party, the Commissioner, to protect its interests. One party in a civil proceeding in a court would not be expected to rely on another party to protect his or her interests and the situation is no different in the Tribunal. The fact that the Commissioner has been prepared to tie his colours to ASIC’s mast for the purposes of the eight documents does not necessarily mean that ASIC sees its interests or the reasons for its arguing for exemption in the same way as the Commissioner sees his interests or reasons.

The second aspect is that the fact that ASIC may use information that it gains as a party is not inconsistent with its being a party in a proceeding for the review of the merits of an administrative decision. As I have explained, merits review is not the resolution of a claim in light of the pleadings made by the parties. It is a search for the correct decision or, if there is more than one correct decision in the circumstances, the preferable decision. Although the Tribunal is concerned only with the continuum of administrative decision-making immediately affecting the decision under review, it cannot be unmindful of the wider continuum of administrative decision-making in the Commonwealth. In that wider continuum, unacceptable inconsistencies would arise if the information given to one agency for the purposes of its decision-making were quarantined from another. Such inconsistencies are unacceptable as those who enter certain arrangements to minimise their taxation find out when they are refused payments of income maintenance. Consistency demands that the character of the financial arrangement maintains that character and cannot be put to one side because the person now wants something different from that he or she wanted when it was entered. A situation of this sort may never arise in this case but the fact that ASIC’s presence may lead it to make enquiries is consistent with this wider notion of the continuum of administrative decision-making. It is not inconsistent with its role as a party to the proceeding that is the application for review of the decision.

I have also considered whether there is a possibility of doing injustice to, or inflicting a serious disadvantage on ABCD, were ASIC permitted to continue to be represented at the hearing to watch over its interests even if it never sought to play any further active role. The disadvantage that is put forward as affecting ABCD centres on his application for review of the Commissioner’s amended assessments in separate proceedings in the Tribunal. Those proceedings are held in private and are the subject of a confidentiality order. ASIC is not a party to those proceedings but it has had access to all of the documents claimed by the Commissioner to be exempt.[182] Putting aside the issue regarding s 38, the issues raised in these proceedings and those are different. It is difficult to see how ABCD’s interests would be affected. If Ms Davies’ interpretation of s 38 should prove to be correct and if there were evidence produced as to any adverse effect upon ABCD, the matter could be revisited. In the meantime, I am not persuaded by the reasons put forward to exclude ASIC from the remainder of the hearing. They should be permitted to the hearing of the proceeding to which it is a party in order to ensure that it may play an active role should any matter arise regarding the eight documents or information or extracts from them.
[182] Affidavit of Ms Birch sworn on 20 March 2008

For the reasons I have given, I decided on 18 September 2008, until further order, to make a direction to:
1.revoke the confidentiality orders dated 12 February 2007 and 27 August 2008; and
2.permit the Australian Securities and Investments Commission:
(1)to attend the hearing by its counsel, solicitors or Ms Judith Birch or other officer as it sees fit; and
(2)to take part in the hearing but only to the extent which was directed by Deputy President McDonald and which is
“…limited to adducing evidence and making submissions in respect of the following eight documents 174, 175, 363, 397, 460, 472, 489, 585 and any other documents which refer to, or contain extracts or information from those documents.”
As the parties asked for reasons for my directions and as an immediate outcome of my directions and the subsequent publication of my reasons would be to disclose that which ABCD seeks to keep confidential, I made orders staying the operation of my directions. They were made at the request of the parties. I have made them as it is imperative that ABCD’s right to seek judicial review should not be compromised for all practical purposes by disclosure before he has an opportunity to consider whether he wishes to exercise his right. Therefore, I directed on 19 September 2008 that:
1.there be a stay of the order made on 18 September 2008 (the variation order) by which the Tribunal varied the Orders of the Tribunal made on 27 August 2008 until the close of the next business day following the delivery of the Tribunal’s written reasons for making the variation order;
2.if the applicant applies to the Federal Court of Australia for review by that Court of the variation order within the time period referred to in paragraph 1, the stay referred to in order 1 be continued until the Federal Court of Australia determines the application and the resolution of any appeals resulting from such determination.
3.that the hearing in this Tribunal of the application for review be adjourned to be listed for directions no earlier than 2 business days after the Tribunal’s delivery of its written reason for making the variation order.
4.if the applicant applies to the Federal Court of Australia for review by that Court of the variation order within the time period referred to in paragraph 1, the hearing in this Tribunal of the application for review be adjourned to be listed for a directions hearing after the Federal Court of Australia gives judgment on the application to that Court and the expiry of any appeal period following that judgment.

I certify that the preceding two hundred paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,

Signed: .......................................................................
Jayne Haydon Associate

Date of Hearing        15-19 September 2008
Date of Decision  18 September 2008
Date of Written Reasons  8 October 2008
Counsel for the Applicant     Ms J. Davies SC with Dr S. McNicol
Solicitor of the Applicant                   Arnold Bloch Leibler

Representative for the Respondent Mr P. Hanks QC with Mr D. Reed
Solicitor of the Applicant Australian Government Solicitor

Representative for the Joined Party Mr M. Pearce SC with Mr J. Pizer
Solicitor of the Respondent Ms J. Birch

(a) an application to the Tribunal for review of a decision; and
(b) an application to the Tribunal under subsection 28(1AC); and

(c)an application to the Tribunal for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid; and

(d)an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981; and

(e) an application to the Tribunal under s 62(2) of the Freedom of Information Act 1982; and
(f) any other application to the Tribunal under this Act or any other Act; and

(g)any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and

(h)an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.”