Akers and Commissioner of Taxation (Freedom of information)
[2025] ARTA 60
•3 February 2025
Akers and Commissioner of Taxation (Freedom of information) [2025] ARTA 60 (3 February 2025)
Applicant:Bruce Akers
Respondent: Commissioner of Taxation
Tribunal Number: 2024/1566
Tribunal:General Member C Willis
Place:Melbourne
Date:3 February 2025
Decision:The Tribunal affirms the decision under review.
...............................[SGD]..........................................
General Member C Willis
Catchwords
FREEDOM OF INFORMATION – review of decision to refuse access to documents relating to financial information of trusts which were deregistered – claim that documents are exempt because secrecy provisions apply – whether documents contain protected information – whether applicant is the same or primary entity – whether applicant is a covered entity – decision affirmed
Legislation
Freedom of Information Act 1982 (Cth), Sections 11, 38, subsection 61(1), Schedule 3
Income Tax Assessment Act 1997 (Cth), Subsections 960-100(1), 960-100(2), 960-100(3), 995-1
Taxation Administration Act 1953 (Cth), Subsection 3AA(2), paragraph 8WB(1)(c), Division 355 of Schedule 1, sections 355-25, 355-30Cases
Anderson and Federal Commissioner of Taxation [2015] AATA 167
Kline v Official Secretary to the Governor-General [2013] HCA 52
Pratt Consolidated Holdings Pty Ltd and Commissioner of Taxation [2011] AATA 907
Re Christie (As Trustee for Moreton Bay Trading Co) and FCT (2004) AATA 1396Secondary Materials
Heydon and Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis Butterworths, 8th ed, 2016)
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982 (November 2023, updated to July 2024)Statement of Reasons
BACKGROUND
On 20 April 2023 Mr Akers (‘Applicant’) made a request (‘FOI Request’) to the Commissioner of Taxation (‘Respondent’) under the Freedom of Information Act 1982 (Cth) (‘FOI Act’) for access to documents relating to two trusts, the Akers Family Trust and the BR Akers Trust (together, the ‘Trusts’).
The Applicant stated that at various times previously he had been the appointer, a trustee, a director of a corporate trustee and/or a beneficiary of the Trusts. The Trusts had been the vehicles through which businesses were operated by the Applicant and his family, and had also held assets used in those business activities.
Both Trusts previously had Australian Business Numbers (ABNs) and had been registered with the Respondent for goods and services tax (GST) purposes. Around March 2017 the Applicant applied for cancellation of the ABNs and GST tax role registrations of the Trusts. These registrations were cancelled around April 2017.[1]
[1] The term ‘deregistered’ was used by the parties in relation to the Trusts to refer to the cancellation of ABNs and GST registrations of the Trusts and this terminology is adopted for convenience in this decision.
The particular documents sought under the FOI Request were described by the Applicant as follows:[2]
·Akers Family Trust, 2016-2017 Taxation Year (profit and loss, balance sheets, etc…
·B R Akers Trust, 2016-2017, the taxation year 2016-2017, …
·Also Documents that finished the two trusts, which were lodged by Bruce Akers
[2] T3.
On 22 May 2023 the Respondent advised the Applicant that it had located documents that fell within the scope of his request and was able to provide access to two of those documents,[3] but refused access to the remaining documents (‘Requested Documents’). The reason given for refusing access was that disclosure of the Requested Documents by the Respondent would breach the taxpayer secrecy provisions found in Division 355 of Schedule 1 to the Taxation Administration Act 1953 (Cth) (‘TAA 1953’).
[3] This was on the basis that this limited material related to the Applicant’s entitlements as a beneficiary under the Trusts and therefore disclosure was not prohibited by Division 355. The disclosure of this material was not a matter before the Tribunal in this proceeding.
The position of the Respondent was that regardless of any prior association between the Applicant and the Trusts, by the time he made his FOI Request the Trusts were terminated and therefore the Applicant was not an entity to whom the Respondent could disclose information contained in the Requested Documents. As the Respondent was prohibited from disclosing the information under Division 355, the Requested Documents were exempt from production under section 38 of the FOI Act.
The Applicant requested an internal review by the Respondent of this decision on 23 May 2023. The Respondent affirmed its original decision on 20 June 2023 (‘Internal Review Decision’), confirming its position that:
·The documents that were sought by the Applicant related to the Trusts, which had been terminated
·The Applicant did not have authority to deal with the Respondent on behalf of the Trusts
·The Requested Documents were exempt from production under section 38 of the FOI Act, which applies to documents covered by specific secrecy provisions in other legislation, including Division 355.
On 23 June 2023 the Applicant applied to the Office of the Australian Information Commissioner (‘OAIC’) for a review of the Internal Review Decision. The OAIC made a decision on 14 March 2024 under paragraph 54W(b) of the FOI Act that it would not undertake the review on the basis that the interests of the administration of the FOI Act made it desirable that the matter be considered by the Tribunal.[4] The OAIC said that the level of complexity involved with the FOI Request, including the apparent inaccessibility of documents and questions about who was authorised to access them, meant that it would be more appropriately handled through the procedures of the Tribunal.
[4] At that time, the Tribunal was the Administrative Appeals Tribunal established under the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). On 14 October 2024 the Administrative Review Tribunal commenced operation under the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’). Under the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), applications for review to the former Administrative Appeals Tribunal that were not finalised before 14 October 2024 are taken to be applications for review to the Administrative Review Tribunal.
On 14 March 2024 the Applicant made an application to the Tribunal in the following terms:
‘There is no decision, only to have AAT to make a decision that is wrong, taking into account the time of ATO<OAIC making decisions and reviews. I am only requesting my documents. I was requested by Australian Services for documents and the documents may be considered in other concerns.’
Noting the decision of the OAIC under paragraph 54W(b), this application has been received by the Tribunal as a request for review of the Internal Review Decision made by the Respondent.
In accordance with the relevant Practice Direction of the Tribunal[5], the Respondent filed a Statement of Facts, Issues and Contentions (‘RSFIC’), together with an affidavit dated 16 September 2024 of Mr Joseph Fabbro who is the Deputy General Counsel of the Respondent with responsibility for FOI matters. The Respondent sought, and the Tribunal made, an order[6] restricting the publication or other disclosure of certain information in the RSFIC and Mr Fabbro’s affidavit. A schedule of the Requested Documents and unredacted copies of those documents were filed by the Respondent with the Tribunal.
[5] Practice Direction relating to the Freedom of Information Act 1982 dated 30 June 2015 was relevant prior to 14 October 2024.
[6] Order dated 4 October 2024 made under section 35(4) of the former AAT Act.
The Applicant has had access to a version of the RSFIC and affidavit of Mr Fabbro which had been redacted to prevent disclosure of documents or information over which exemption was claimed. Nevertheless this redacted version of the RSFIC confirmed that:[7]
·The Requested Documents comprised records held by the Respondent relating to the 2016-17 financial year with respect to the Trusts.
·The Respondent claimed the exemption under section 38 of the FOI Act over the Requested Documents. Parts of two documents had been released by the original decision maker.[8]
·The 2017 tax returns for the Trusts had been lodged with the Respondent and were included in the documents in issue.
·The Respondent had reviewed relevant customer record databases, internal records systems and the Australian Business Register, from which it could be confirmed that the Applicant had contacted the Respondent on 28 April 2017, and the ABN registration and GST status of both Trusts as cancelled on that day.
[7] See paragraphs 14, 15, 23, 26 and 30 of (the redacted version of) Mr Fabbro’s affidavit, and paragraphs 6 to 9 of (the redacted version of) RSFIC.
[8] The Respondent confirmed to the Tribunal on 4 December 2024 that these two documents were ‘exempt in part’.
Mr Fabbro’s affidavit also annexed a copy of an ASIC & Business Names company information search for a company called BlueChoc Pty Ltd (‘BlueChoc’) which had been deregistered in September 2017.[9] The search indicated that the Applicant had been the company secretary of BlueChoc at the time of its deregistration and his daughter had been its sole director. As this search is from a publicly available source, it was able to be disclosed. Material filed by the Applicant included a Deed of Appointment of New Trustee for the Akers Family Trust[10] which appointed BlueChoc as the new trustee in September 2005.
[9] Annexure JF-05 to Mr Fabbro’s affidavit.
[10] Annexure BRA:006 to the Applicant’s affidavit.
The Requested Documents were referenced in paragraphs 14.1, 14.2, 14.3, 15.1, 15.2 and 15.3 of Mr Fabbro’s affidavit. Mr Fabbro deposed[11] that each of the documents summarised in those paragraphs contained information that was ‘protected information’ relating to the Trusts for the purposes of the TAA 1953 and a number of the documents contained the Tax File Numbers (‘TFNs’) of the Trusts.
[11] Paragraphs 16 and 17 of Mr Fabbro’s affidavit.
By way of context, Mr Fabbro’s affidavit also provided general information about the administration of laws relating to ABNs, GST registration, lodgements and returns as they relate to trusts. A trust, as an entity for Australian taxation purposes, may register an ABN with the Respondent if it is commencing or carrying on an enterprise. Once the entity has an ABN, it is able to register for other tax roles with the Respondent, including in relation to GST. The entity will also be given a TFN when it registers for an ABN, if it does not already have one. If the entity ceases to carry on an enterprise, the entity or its representative may cancel its ABN. When the entity’s ABN and tax roles are cancelled, the entity is assumed not to be carrying on any enterprise and the Respondent will not expect lodgement of activity statements.[12]
[12] See paragraphs 18 to 21 and 24 to 25 of Mr Fabbro’s affidavit.
In compliance with the Practice Direction of the Tribunal and section 64 of the FOI Act, the Respondent provided the Tribunal with a copy of the Requested Documents, for the purposes only of this review by the Tribunal of the Internal Review Decision. An unredacted version of the RSFIC and affidavit of Mr Fabbro was also provided to the Tribunal on this basis.
RELEVANT LAW
FOI rules
A frequently cited passage from the decision of the High Court in Kline v Official Secretary to the Governor-General[13] describes the approach of the FOI Act:
“The FOI Act does not pursue its objects, as legislative purposes, at any cost. The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.”
[13] Kline v Official Secretary to the Governor-General [2013] HCA 52 at [37].
Under the FOI Act, and subject to that Act, a person has a legally enforceable right to obtain access to a document of an agency, other than an ‘exempt document.’: see paragraph 11(1)(a).
An agency must give a person access to a document in accordance with the FOI Act. However an agency is not required to give a person access to a document at a particular time if the document is an exempt document at that time: subsections 11A(3) and 11A(4).
An ‘exempt document’ includes a document that is exempt for the purposes of Part IV (‘Exempt Documents’) of the FOI Act, which in turn includes a document that is an exempt document under Division 2 of Part IV: paragraph 31B(a).
Subsection 38(1) of the FOI Act provides that a document will be an exempt document if:
(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment or a Norfolk Island law; and
(b) either:
(i) that provision is specified in Schedule 3; or
(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that enactment or law or any other enactment or Norfolk Island law.
Where the applicant in relation to the FOI request is the party that applied for the review by the Tribunal, then the agency to which the FOI request was made has the onus of establishing that its decision is justified, or that the Tribunal should give a decision adverse to the applicant: paragraph 61(1)(b).
In making a decision on any FOI request the agency must have regard to any guidelines issued by the Information Commissioner for the purposes of section 93A of the FOI Act: subsection 15(5A). This includes the ‘Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982’ (the ‘FOI Guidelines’).
Where the Information Commissioner makes a decision under paragraph 54W(b), an application may be made to the Tribunal for review of the IC reviewable decision in relation to which the Information Commissioner made its decision: paragraph 57A(1)(b).
The Tribunal generally has power to review any decision that has been made by an agency, and to decide any matter in relation to the FOI request that could have been decided by the agency. However it is important to note that where it is established in proceedings under the FOI Act that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains an exempt matter, is to be granted: see subsections 58(1) and (2).
Taxation secrecy provisions
It is not in contention that the Respondent is an agency for the purposes of the FOI Act.
It is also not controversial that Schedule 3 of the FOI Act specifies paragraph 8WB(1)(c) and section 355-25 of Schedule 1 to the TAA 1953.
The question is therefore whether section 355-25 prohibits disclosure of the documents, or information contained in the documents, sought by the Applicant under his FOI Request.
Subsection 355-25(1) provides that an entity commits an offence if:
·The entity is or was a ‘taxation officer’
·The entity discloses information to another entity (other than the entity to whom the information relates, an entity covered by subsection 355-25(2) or to a court or tribunal)
·The information is ‘protected information’
·The information was acquired by the first-mentioned entity as a taxation officer.
The term ‘taxation officer’ is defined to include the Respondent and individuals appointed or engaged under the Public Service Act 1999 (Cth) and performing duties in the Australian Taxation Office: section 355-30. It was not disputed that provision of documents to the Applicant under the FOI Request would involve disclosure of information by a taxation officer or officers, being one or more of the staff of the Respondent handing the request.
The definition of an ‘entity’ for the purposes of Division 355 is found in subsection 960-100(1) of the Income Tax Assessment Act 1997 (Cth) (‘ITAA 1997’). Relevant to the present circumstances it includes an individual, a body corporate and a trust. Further:
·The trustee of a trust is taken to be an entity consisting of the person who is the trustee of the trust or the persons who are the trustees, at any given time: subsection 960-100(2).
·The entity that is the trustee of a trust does not change merely because of a change in the person who is the trustee (or the persons who are the trustees): Note 2 to subsection 960-100(2).
·A person may have a number of different capacities in which the person does things. In each of those capacities the person is taken to be a different ‘entity’: subsection 960-100(3).
·If a provision of the taxation legislation refers to an entity of a particular kind, it refers to the entity in that capacity, and not to that entity in another capacity: subsection 960-100(4).
‘Protected information’ is defined in section 355-30 to mean information that:
·Was disclosed or obtained under or for the purposes of a law that was a taxation law when the information was disclosed or obtained; and
·Relates to the affairs of an entity; and
·Identifies, or is reasonably capable of being used to identify, the entity.
Subsection 355-25(2) identifies certain entities as a ‘covered entity’ in relation to a ‘primary entity’ such that disclosure to the covered entity of protected information relating to the primary entity is not prohibited by section 355-25. For example, a registered tax agent may be a covered entity in relation to a primary entity which is their client such that a taxation officer could disclose information to the tax agent relating to their client’s affairs.
ISSUES AND CONTENTIONS
The Applicant contends that:
·The Requested Documents are personal to him and his family.
·He was an appointer and trustee of the Trusts. The Trusts are personal to him, his family and their affairs.
·The FOI Act allows for personal documents held by an agency to be provided to him.
·He personally attended to the lodgement of returns for the Trusts (at least for the years from 2013 to 2017) and engaged with the Respondent to deregister the Trusts for GST and ABN purposes. At no time did the Respondent question his authority to undertake these matters for the Trusts.
·The prohibition in section 355-25 does not apply because disclosure to him of the information in the requested documents would be to the ‘primary entity’ (as he is the same ‘entity’ in relation to each Trust) or to a ‘covered entity’.
Regardless of the technical application of section 355-25, the Applicant also believes that he has special circumstances which otherwise override the operation of the legislative provisions. Although a person making a request under the FOI Act is not required to explain their reasons for seeking access to documents and their right of access is not affected by their reasons for doing so,[14] the Applicant told the Tribunal that he wanted to ensure these matters were recorded. This background is also relevant to the operation of section 355-25 to the extent that it describes the capacity in which the Applicant is seeking information about the Trusts.
[14] See subsection 11(2) of the FOI Act.
The Applicant told the Tribunal about a number of events that resulted in him facing health, financial and legal challenges. He said that around 2007, borrowings were undertaken by one of the Trusts which have given rise to a protracted dispute with financiers, including County Court proceedings which also involve his daughter. Around 2010 land held within one of the Trusts became the subject of compulsory acquisition processes by VicRoads, leading to proceedings in the Victorian Civil and Administrative Tribunal.
The Applicant said that he has faced significant financial difficulties, requiring social security benefits to survive. Around 2014 or 2015, Services Australia decided to stop certain benefits. At least in part this appears to have been on the basis that the Applicant held assets above the allowable limit for those benefits due to his beneficial interest in the Akers Family Trust.[15] The Applicant stated that he experienced mental health difficulties.
[15] See exhibit BRA:002 to the Applicant’s affidavit.
The BR Akers Trust carried on business activities related to horse breeding, farming or racing. The Applicant said that he was unable to maintain the horses, as well as himself and his family with the limited financial support he received. In 2016 the Applicant was charged with a number of offences under Victorian legislation relating to the prevention of cruelty to animals. He was convicted and served a six-month term of imprisonment, as well as a 12 month community corrections order. The Applicant has pursued a complaint about his treatment by Victoria Police with the Independent Broad-based Anti-corruption Commission.
In addition to arguing that special circumstances apply to his case, the Applicant believes that if he was not the trustee of the Trusts then he should not have been charged with the offences relating to animal cruelty as he would not have been a person in control of the horses used in his horse farming business. He thinks that the Requested Documents may help him establish that. He also stated that Services Australia requires documentation relating to the Trusts for that period in relation to his claim for social security benefits. The Applicant further believes that the documents may assist him and his daughter in their litigation relating to the debt matters.
The Applicant said that his computer files were hacked in 2023 which resulted in him being unable to access many of his personal records.
The Respondent contends that:
·The ABN and GST registrations of the Trusts were cancelled in 2017. The Trusts ceased to function as entities for taxation purposes when their ABNs and tax registrations ceased.
·The documents sought by the Applicant (other than those previously released to him) contain information that is ‘protected information’ within section 355-30 relating to the Trusts.
·The information does not cease to be ‘protected information’ just because the Trusts have been deregistered.
·Even if the Applicant was previously a trustee of the Trusts, section 355-25 applies to prohibit disclosure to him now of that protected information.
·The Applicant is treated as a separate ‘entity’ to the Trusts for the purposes of Division 355, and therefore not the same entity to which the protected information relates. His FOI Request is made in a different capacity to that of a trustee of the Trusts.
·The Applicant is not a ‘covered entity’ in relation to the Trusts as the ‘primary entities’ such that disclosure would be permitted. No other exception to section 355-25 exists.
·Where the Respondent is prohibited by section 355-25 from disclosing the protected information in the Requested Documents, those documents are exempt from production under section 38 of the FOI Request.[16]
[16] At least to the extent that the documents disclose protected information. Documents redacted to conceal information claimed to be protected information were provided as exhibits to the affidavit of Mr Fabbro.
CONSIDERATION
The FOI Guidelines make the following observations in relation to the exemption of documents to which secrecy provisions apply, including protected information for taxation law purposes:
‘5.135 Section 38 is intended to preserve the operation of specific secrecy provisions in other legislation, including in cases where no other exemption or conditional exemption is available under the FOI Act. The primary purpose of secrecy provisions in legislation is to prohibit unauthorised disclosure of client information. Most secrecy provisions allow disclosure in certain circumstances, such as with the applicant’s consent where the information relates to them, or where it is in the course of an officer’s duty or performance of duties, or exercise of powers or functions, to disclose the information …
5.137 Section 38 does not apply to documents in so far as they contain personal information about the FOI applicant (s 38(2)). The exception applies only to personal information about the FOI applicant and not to ‘mixed personal information’, … If the FOI applicant’s personal information can be separated from any third-party personal information, the FOI applicant’s personal information will not be exempt … and can be disclosed…
5.142 … s 355-25 of Schedule 1 to the Tax [sic] Administration Act 1953, makes it an offence for a taxation officer to record or disclose ‘protected information’. ‘Protected information’ is information relating to and identifying an entity acquired for a taxation law purpose. The effect of this provision on an FOI request for documents is to make a document containing the protected information of a person or entity, other than the person making the FOI request, an exempt document under s 38.
5.143 It may be that consent by a person or entity to disclosure of information protected by a secrecy provision is not a defence to the offence of disclosure. For example, in ‘ADN’ and the Australian Taxation Office the Acting FOI Commissioner found that although a third party had consented to disclosure of their taxation information to the FOI applicant, that information remained protected information because consent is not a defence to the offence of disclosure in the Taxation Administration Act 1953.’
Do the requested documents contain protected information?
The Respondent submitted that the Applicant appeared to accept that the information contained in the Requested Documents was ‘protected information.’ After hearing the Applicant’s submissions, I was not certain that he necessarily accepted the Respondent’s position in full, but rather was expressing the view that to the extent that there was any confidential or secret information in the Requested Documents, this was information that was personal to him.
The Applicant did not dispute that the documents he seeks would contain information relating to the affairs of the Trusts, or that the information was provided to the Respondent under or for the purposes of a taxation law. The Applicant said that he was personally involved in the preparation and lodgement of returns for the Trusts around this time, as well as arranging the cancellation of the ABNs and GST registrations for the Trusts.
Mr Fabbro gave evidence at the hearing in support of the Respondent’s claim for exemption under section 38. The Applicant sought to ask Mr Fabbro questions about the content of the Requested Documents on the basis that he would not ask for the names of any person mentioned in the material, and was concerned that the Respondent might not have met its obligations under the FOI Act. It was necessary to explain to the Applicant that the concept of ‘protected information’ extends beyond the names of persons. Counsel for the Respondent sought to assist the Applicant and the Tribunal by suggesting questions that Mr Fabbro might be able to answer to reassure the Applicant, without disclosing protected information. For example, the Respondent was able to assure the Applicant that according to the Respondent’s records, he did not have outstanding taxation obligations or liabilities.
I have considered each of the Requested Documents, copies of which were provided to the Tribunal in accordance with the Practice Direction and section 64 of the FOI Act, I am satisfied that the criteria for ‘protected information’ were met in relation to the documents. That is, it is apparent on their face, including the nature and content of the documents, that the Requested Documents contain information that was disclosed or obtained (to or by the Respondent) under or for the purposes of a law that was a ‘taxation law’ when that information was disclosed or obtained, the information related to the affairs of one or both of the Trusts and the information identifies (or is reasonably capable of being used to identify) the Trust or Trusts.
There are two exceptions to this finding, being two documents identified at paragraphs 14.3 and 15.3 of Mr Fabbro’s affidavit as ‘2017 tax return’ for the Akers Family Trust and BR Akers Trust respectively. Parts of those documents relate to the Applicant’s personal tax affairs in his capacity as a former beneficiary of the Trusts, and those parts have been released by the Respondent to the Applicant accordingly.
The Applicant’s view that the entirety of the Requested Documents should be released to him because they contain information that is personal to him may be a reference to subsection 38(2) of the FOI Act which provides that where a person requests access to a document, the exemption in section 38 does not apply to the document ‘so far as it contains personal information about the person.’ As noted, the Respondent previously released some documentation to the Applicant which related to him in his capacity as a beneficiary of the Trusts, which in turn related to his personal tax affairs. However, information about the affairs of the Trusts is not personal information about the Applicant, even where there has historically been an association between the Applicant, his family and the Trusts.
Is the Applicant taken to be the same ‘entity’ as either or both of the Trusts?
The Applicant viewed information about the Trusts as being personal to him on the basis of having been a trustee or an appointer of both Trusts. More particularly, the Applicant said that he should be treated as the (same) entity to which the protected information related, or the ‘primary entity’ for the purposes of Division 355, such that disclosure of protected information of the Trusts to the Applicant did not breach section 355-25.
The Applicant included as exhibits to his affidavit material in support of his claim that he was a trustee of the Trusts. This material was very limited in nature, such as documents that covered some years prior to 2016/17, but which in any event referred to two companies as the trustees of the Trusts. The Applicant also argued that because the Respondent did not positively query or challenge certain actions he may have taken in relation to the Trusts, such as preparation and lodgement of returns and deregistration activities, there was acceptance by the Respondent that he was a trustee. Further, he pointed to the Trusts owning property and livestock that was used in businesses conducted by him as evidence that he should be regarded as a trustee. Had it been necessary to determine whether he was a trustee of either or both of the Trusts, the Tribunal would have had difficulty in making such a finding based on this evidence or these contentions alone.
The Respondent neither confirmed nor challenged the Applicant’s view that he was a trustee of the Trusts, whether at the time the Trusts were deregistered or prior.[17] The Respondent presses alternative bases for the Requested Documents being subject to the secrecy provisions of Division 355. Its position is that regardless of whether the Applicant was a trustee at the time of deregistration of the Trusts, at the time of making the FOI Request the Applicant:
·Is a different ‘entity’ to each of the Trusts for present purposes.
·Was not seeking the documents in the capacity of a trustee of the Trusts.
Therefore any prior status as a trustee is not relevant to the question of whether section 355-25 applies in the context of the FOI Request.
[17] To address these matters, it might be necessary for the Respondent to disclose information in the documents the subject of the FOI Request, which would be contrary to the point of this proceeding.
The identification of an entity or entities within Division 355 is to be determined at the time of the disclosure (or proposed disclosure) of information to an entity. As set out above, in identifying and defining entities for the purposes of taxation laws (including Division 355) section 960-100 contains specific rules for arrangements involving trusts. Of relevance to the present matter:
·Each of an individual, a company, and a trust is regarded as an ‘entity.’ Therefore the Applicant and each of the Trusts are each an ‘entity’: subsection 960-100(1).
·A trustee of a trust is taken to be an entity consisting of the person who is the trustee of the trust or the persons who are the trustees, at any given time. Therefore, the Applicant, if the sole trustee of either of the Trusts at a particular time would have been treated as a different entity to that Trust at the time. Similarly, any corporate trustee would also be a (different) ‘entity’ to the relevant Trust, even if the Applicant was an officer of the trustee: subsection 960-100(2).
·As a person may do things in a number of different capacities, with each capacity being taken to be a different ‘entity’, it is necessary to consider the capacity in which the Applicant is seeking the requested documents and information: subsections 960-100(3) and (4). Even if he was previously a trustee of the Trust, he made the FOI Request not in the capacity of a trustee, for matters relating to the administration of the affairs of the trust, but in his personal capacity and unrelated to the administration of the affairs of the trust. Further, the Trusts ceased to be registered for tax purposes in 2017.
The Applicant argued that the definition of an entity found in section 960-100 of the ITAA 1997 should be disregarded as it does not align with general law concepts as they apply to trusts. The Respondent agrees that some of the concepts set out in section 960-100 are not reflective of the general law characterisation and treatment of trusts. However the TAA 1953 expressly states that the interpretational provisions of the ITAA 1997 are to be applied to Schedule 1 of the TAA 1953, which includes Division 355: see section 3AA(2).
The difference between the general law and taxation law treatment of trusts has been highlighted in two previous decisions of the Tribunal. In Re Christie (As Trustee for Moreton Bay Trading Co) and FCT,[18] the application of laws relating to superannuation contributions were considered in the context of salary and wages paid to individuals who were also trustees carrying on the relevant business activities. Deputy President McCabe observed that (at general law) a trust is not a legal person and does not exist independent of the trustees or beneficiaries who are involved in the trust relationship.[19] DP McCabe noted that the position would have been different if provisions of the income tax legislation had been under consideration, due to the operation of section 960-100.[20]
[18] Re Christie (As Trustee for Moreton Bay Trading Co) and FCT (2004) AATA 1396 (‘Christie’).
[19] Ibid, at [22] and [23].
[20] Ibid, at [18] to [20].
DP McCabe revisited this distinction in Anderson and Federal Commissioner of Taxation.[21] Referring to his previous comments in Christie, he said:
‘the tax laws do modify the general law, at least in relation to one’s taxation affairs.’[22]
[21] Anderson and Federal Commissioner of Taxation [2015] AATA 167 (‘Anderson’).
[22] Ibid, at [18].
Although Anderson involved the application of GST laws, the relevant definitional provisions were consistent with the approach taken in section 960-100 to treat a trust as a separate entity and recognise that a person can act in a number of different capacities in relation to which they are treated as different entities.
The Applicant states that he was the Appointor of both Trusts. The trust deed for the BR Akers Trust names him as Appointor.[23] Services Australia appears to have concluded that he was also the appointor of the Akers Family Trust, although the evidence upon which that conclusion was based was not available to the Tribunal.[24] However there is nothing in the definition of ‘entity’ in section 960-100 which treats an appointor of a trust as being part of a single entity comprising the trust and appointor. To the contrary, where the appointor of a trust is an individual, subsection 960-100(1) defines the ‘individual’ and the ‘trust’ to each be an ‘entity’ (that is, separate entities).
[23] Schedule 1 to the trust deed for the BR Akers Trust, BRA:005 to Applicant’s affidavit.
[24] See correspondence dated 15 July 2015 from Services Australia to the Applicant, Exhibit BRA:002 to Applicant’s affidavit.
Based on the clear wording of section 960-100, as explained by DP McCabe in Christie and Anderson, the Applicant cannot be treated as the 'same' entity as either of the Trusts. Therefore, if an officer of the Respondent discloses protected information relating to the affairs of a Trust to the Applicant, they would be disclosing that information to 'another entity.' This would breach section 355-25 unless the Applicant is a covered entity in relation to the Trusts or another exclusion from Division 355 applies.
Is the Applicant a ‘covered entity’ in relation to either of the Trusts?
The Applicant argued that he was a ‘covered entity’ in relation to the Trusts. It is not clear whether he relied on his belief that he was a trustee of the Trusts as providing him with the status of a covered entity in relation to the Trusts, his status as an appointer of the Trusts or another basis.
Subsection 355-25(2) defines the particular entities which will be regarded as ‘covered entities’ in relation to certain primary entities. Many of these categories would be irrelevant to the Applicant. For example, he is not a registered tax agent, BAS agent, or legal practitioner. The Respondent suggested that the Applicant might previously have been able to bring himself within paragraph 355-25(2)(g)[25] if he had been a trustee at a time when the Trusts were still operative for taxation purposes, but this is no longer applicable on the facts. None of the other paragraphs in subsection 355-25(2) will operate in the present circumstances.
[25] A covered entity includes a representative of the primary entity who has been nominated to act on behalf of the primary entity with respect to protected information.
I agree that the Applicant is not a ‘covered entity’ in relation to protected information relating to either of the Trusts.
Did the information cease to be protected information when the Trusts were no longer operative?
The Respondent made submissions to the effect that information held by the Respondent that relates to the affairs of the Trusts did not cease to be ‘protected information’ merely because the Trusts are no longer registered for GST purposes or held ABNs. The Respondent cited observations of Deputy President Forgie in Re Pratt Consolidated Holdings Pty Ltd and Commissioner of Taxation[26] in support of this proposition. That case involved protected information relating to a company that had been deregistered. In summary, DP Forgie found that information ‘relating to [the] affairs’ of the corporation when it was registered and in existence continued to have that characteristic even when the corporation had ceased to exist. DP Forgie said that this reasoning applied to each of the groups or bodies prescribed as an ‘entity’.
[26] Re Pratt Consolidated Holdings Pty Ltd and Commissioner of Taxation [2011] AATA 907, at [129] to [132] (‘Pratt’).
It is not clear whether the Applicant disputed the Respondent’s contentions on this point. In his SFIC the Applicant simply repeated word for word the contentions and analysis from the RSFIC. During the hearing counsel for the Respondent took the Tribunal and the Applicant through the relevant paragraphs of the decision in Pratt. The Applicant did not put any arguments in rebuttal of the Respondent’s contention.
In these circumstances, there is no basis for concluding that the observations of DP Forgie in Pratt are not sound. Therefore they will also apply to information held by the Respondent about the affairs of the Trusts. This information continues to be protected information, even after the Trusts have ceased to be registered with the Respondent for GST or other taxation purposes.
Does the Applicant have special circumstances which can be taken into account?
Unlike other provisions of taxation law which provide the Respondent with a discretion to remit or waive certain matters (for example, the remission of administrative penalties or release of taxation liabilities) where the prohibition on disclosure in section 355-25 applies the Respondent has no discretion. A breach of section 355-25 by a taxation officer is an offence. Unfortunately, no matter how difficult the circumstances of a person making an FOI Request, if the material requested is subject to the prohibition in section 355-25 the Respondent is unable to disclose that information and the documents containing that information are exempt under section 38 of the FOI Act.
Other types of documents may be ‘conditionally exempt’ for the purposes of the FOI Act, in which case ‘public interest’ factors for and against release of the documents would be considered. This does not apply in the Applicant’s circumstances as documents falling within the scope of section 38 of the FOI Act are ‘exempt’ without requiring an examination of public interest or other special factors.
Subsection 58(2) of the FOI Act expressly provides that where it is established that a document is an exempt document, the Tribunal does not have the power to decide that access to the document should be granted.
During the hearing the Respondent acknowledged the Applicant’s frustration at not being able to obtain the documents he was seeking. The Tribunal also appreciates why it might seem unreasonable to the Applicant that he is unable to access documents relating to entities with which he and his family have had a lengthy association historically.
The Respondent also raised a concern that the Respondent had advised him that his former accountant had somehow improperly become the trustee of one or both of the Trusts. He queried why the Respondent did not call the accountant to give evidence to the Tribunal. The basis for his concern is not apparent. The Applicant acknowledges that he requested the cancellation of the ABNs and GST registrations of the Trusts in April 2017. The Respondent was able to confirm that the ABNs and tax roles for the Trusts were cancelled at that time, following a telephone call from the Applicant to the Respondent.[27] The Respondent confirmed that it was not expecting any further activity statements from either Trust. It is not clear whether the Applicant is confusing the concept of a ‘trustee’ with, for example, an adviser who may previously have been an ‘authorised contact’ for particular administrative tasks. This is not a matter which is relevant to FOI Act exemption at issue in this proceeding.
[27] Information on the status of ABN and GST registration of an entity is also publicly available on the Australian Business Register, see file numbers
Separately from the secrecy provisions in Division 355, section 8WB of the TAA 1953 creates offences in relation to the unauthorised recording, use or disclosure of TFNs. Paragraph 8WB(1)(c) provides that a person must not divulge or communicate another person’s TFN to a third person. This paragraph is also specified in Schedule 3 to the FOI Act.
Mr Fabbro deposed that a number of the documents requested by the Applicant include the TFNs of the Trusts. The Applicant did not appear to be seeking information about TFNs, however for the sake of completeness, inclusion of the TFNs of the Trusts within a Requested Document would be another ground for exemption of that document under section 38 of the FOI Act as disclosure of information contained in that document would be prohibited under paragraph 8WB(1)(c). The TFNs are not TFNs of the Applicant. Regardless of any prior capacity or authority of the Applicant in relation to the Trusts, at the time of compliance with the FOI Request there is no apparent basis for the Applicant to be authorised to receive this information from the Respondent.
Matters arising under other legislation
In his submissions to the Tribunal the Applicant raised matters arising under legislation other than the FOI Act and Federal taxation laws.
Broadly, the Applicant said that if he was not regarded as the trustee of, or same entity as, the Trusts then he should not have been charged with the offences under Victorian animal welfare legislation as he was not the person in control of the animals involved. If another person or persons had control of the Trusts, they were responsible for the horses. As a general observation, there will not necessarily be alignment between tests of control in State animal welfare laws and rules identifying parties authorised to access information under Federal taxation laws. The Tribunal can only provide its view on the application of the section 355-25 as it relates to the ground of exemption under section 38 of the FOI Act. Matters relating to the Victorian animal welfare laws are outside the scope of this proceeding, and outside the scope of the jurisdiction of the Tribunal.
The Applicant also cited human rights legislation as a basis for requiring the Respondent to remove all redactions in documents it filed with the Tribunal in this proceeding. These redactions were made in accordance with specific statutory provisions relating to the obligations of the Tribunal in conducting reviews of FOI decisions involving claims for exemption,[28] as well as statutory provisions governing the disclosure of information in Tribunal proceedings more generally.[29] Absent a decision in favour of the Applicant in relation to the exempt status of the documents, the redactions will not be removed.
[28] See Division 5, Part VIIA of the FOI Act. See also the Administrative Review Tribunal (Freedom of Information) Practice Direction 2024.
[29] See subsections 35(4) and (5) of the former Administrative Appeals Act 1975 (Cth) which were the subject of an order by the Tribunal in this proceeding dated 4 October 2024. Equivalent provisions are now found in sections 70 and 71 of the Administrative Review Tribunal Act 2024 (Cth).
CONCLUSION
The Tribunal finds that the Respondent has satisfied the onus under section 61 of the FOI Act of establishing that the Internal Review Decision was justified. The Respondent has demonstrated that the Requested Documents contain ‘protected information’ and disclosure of that information by the Respondent is prohibited by section 355-25 of Schedule 1 to the TAA 1953. Some of the Requested Documents also contain TFNs, the disclosure of which is prohibited by paragraph 8WB(1)(c) of the TAA 1953. The Requested Documents are therefore exempt under section 38 of the FOI Act.
The Internal Review Decision is affirmed.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of General Member C. Willis
.................................[SGD].......................................
Associate
Dated: 3 February 2025
Date of hearing: 19 December 2024 Applicant:
Self-represented Counsel for the Respondent: Samuel Walpole Solicitors for the Respondent:
Australian Government Solicitor
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