Edwards v The Commissioner of Taxation
[1997] IRCA 51
•05 March 1997
DECISION NO:51/97
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - Applicant, a taxation officer, knowingly accessed various taxpayers’ computer records out of idle, unprofessional curiosity, thereby committing an offence under section 8XA of the Taxation Administration Act, 1953 - Application dismissed.
Taxation Administration Act 1953: s.8XA
Taxation Laws Amendment (Tax File Numbers) Act, Act number 97 of 1988
Acts Interpretation Act 1901; s. 15AB(3)
Workplace Relations Act, 1996; s.170DE(1)
Powell - v- Simple Computing Australia Pty Limited (1996) IRCA Patch JR, NI/1977, 7 February 1997, unreported
Briginshaw -v- Briginshaw (1938) 60 CLR 336
EDWARDS -V- THE COMMISSIONER OF TAXATION
NI 4361 of 1995
Before: PATCH JR
Place: SYDNEY
Date/s of hearing: 19 & 20 JUNE 1996, 19 JULY 1996.
Written submissions complete: 13 DECEMBER 1996
Date of judgment: 5 MARCH 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 4361 of 1995
BETWEEN:
RODERICK ST. JOHN EDWARDS
Applicant
AND
THE COMMISSIONER OF TAXATION
Respondent
MINUTES OF ORDERS
5 March 1997 PATCH JR
THE COURT ORDERS THAT:
The application be dismissed.
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 4361 of 1995
BETWEEN:
RODERICK ST. JOHN EDWARDS
Applicant
AND
THE COMMISSIONER OF TAXATION
Respondent
REASONS FOR DECISION
5 March 1997 PATCH JR
The applicant claims that the termination of his employment was unlawful and seeks reinstatement. In the alternative, if the Court were to find that reinstatement is impracticable, the applicant seeks compensation.
BACKGROUND FACTS
The applicant commenced working in the Australian Taxation Office on 28 July 1986. He was employed as a tax officer. At the time of the termination of his employment he was working as an audit officer in the Parramatta office. The technical description of his position was Administrative Services Officer class 3 Small Business Income Group of the Australian Taxation Office, Parramatta.
His employment was terminated on 8 March 1995. At that time his annual salary was $28,500.00.
The events which led to the termination of the applicant’s employment occurred on and between 28 July 1994 and 2 September 1994.
The matter came to the Court after the applicant had unsuccessfully appealed to a Discipline Appeal Committee of the Merit Protection and Review Agency, the decision of which was handed down on 12 May 1995. The documents presented to that Committee, and the transcript of the evidence at the hearing conducted by Committee, became Exhibit 1 in these proceedings.
Although the transcript of the Discipline Appeals Committee hearing was an exhibit before the Court, the matter was conducted, of course, not as an appeal from the decision of the Committee, but as a hearing de novo.
The respondent made no point about the application being filed out of time, and leave was given at the commencement of the proceedings for the application to be filed out of time.
WAS THERE A VALID REASON FOR THE TERMINATION OF THE APPLICANT’S EMPLOYMENT?
The reason for the termination of the applicant’s employment was an alleged breach of section 8XA of the Taxation Administration Act 1953.
At the time of the alleged breaches of section 8XA of the Taxation Administration Act, that section read as follows:
8XA “A person must not knowingly take action for the purpose of obtaining information about another person’s affairs that:
(a) is contained in records in the possession of the Commissioner; and
(b) is held or was obtained by the Commissioner under or for the purposes of a taxation law;
unless that person takes the action:
(c) under the Freedom of Information Act 1982; or
(d) in accordance with the processes of a Court or a Tribunal; or
(e) in the course of exercising powers or performing functions under or in relation to a Taxation Law.
Penalty: $10,000 or imprisonment for 2 years, or both.”
At the time that section 8XA was first inserted into the Taxation Administration Act, by virtue of the Taxation Laws Amendment (Tax File Numbers) Act, Act Number 97 of 1988, s. 8XA read as follows:
“8XA A person must not knowingly take action for the purpose of obtaining information held under or for the purposes of a taxation law unless the person takes the action in the course of exercising powers or performing functions under or in relation to a taxation law.
Penalty; $10,000 or imprisonment for 2 years, or both.”
It is to be noted here that section 8XA (in both its original and amended versions), simply deals with unauthorised access to taxation records. Section 8XB deals with the making of records of information held by the Taxation Office, and the divulging or communication of such information to third persons.
Did section 8XA of the Taxation Administration Act 1953 apply to the applicant?
The applicant submitted that, in any event, section 8XA was not intended to cover officers or employees of the Australian Taxation Office.
The applicant submitted as follows “the general expression “person” in the context in which it is found in section 8XA together with the use of the explanatory notes and the second reading speech of exhibit 3 identified that the section was not intended to cover a person such as the applicant. At no relevant time could it be said that the applicant was an “authorised person”.”
I do not accept the applicant’s submission.
The phrase “authorised person” does not appear in either the original or the amended version of section 8XA. Both versions of section 8XA refer to “a person”. In my opinion the phrase “a person” is an all-inclusive phrase, which includes persons who are officers of the Australian Taxation Office, such as the applicant. In my opinion, that is the ordinary meaning of that part of the Act. It is, therefore, not necessary to use any extrinsic material to interpret that part of section 8XA, such as the second reading speech or any explanatory memoranda. See section 15AB(3) of the Acts Interpretation Act 1901. I add, however, that I have considered that material, and it did not alter my opinion.
It follows that if a person (including a person in the position of the applicant) knowingly takes action for the purpose of obtaining the type of information referred to in paragraphs (a) and (b) of section 8XA of the Taxation Administration Act, and that action is not taken for at least one of the reasons or purposes set out in subsection (c), (d) and (e) of section 8XA, that person commits the offence established by section 8XA.
Did the applicant breach section 8XA of the Taxation Administration Act 1953?
The events which led to the termination of the applicant’s employment concerned a series of actions by the applicant in accessing taxation information and computer records of the Commissioner of Taxation about the taxation affairs of 10 people, allegedly for purposes or reasons other than those set out in subsections (c), (d), and (e) of section 8XA as it was in force at the relevant time in 1994.
There is no dispute that the applicant had, in fact, accessed the records of the 10 persons concerned. There is no dispute that he had knowingly done that. There was no dispute that the information obtained by the applicant was the type of information set out in sections (a) and (b) of the section 8XA. Not only was there no dispute about these matters, but the evidence clearly established them.
There is no assertion by the applicant that he took the action to obtain the information in accordance with subsection (c) or subsection (d) of section 8XA.
The applicant asserted that he obtained the information in accordance with subsection (e) of section 8XA, namely, “in the course of exercising powers or performing functions under or in relation to a taxation law”.
Since he was first questioned by an investigator in the Taxation Department about his access to the taxpayers’ files, the applicant has given a variety of reasons as to why he did that.
In his evidence-in-chief the applicant was asked no questions about why he accessed the taxpayers’ files. However, in cross-examination he initially said, in answer to this question: (see transcript page 54.12)
Q “You acknowledge that what you did was wrong or do you not make that acknowledgment?”
A “I think I was showing initiative in trying to develop a greater understanding of how tax systems work”
Q “Mr Edwards, were you indulging in nothing more that idle curiosity when you accessed a number of records of taxpayers?”
A “No I wasn’t”.
The applicant was then referred to the answers that he had given to Mr Baldock, an officer of the Taxation Office who had first interviewed the applicant concerning the allegations. That interview took place on 20 October 1994. The transcript of that interview is part of exhibit 1.
Initially, when questioned by Mr Baldock, in relation to most of the taxpayers’ files he had accessed, the applicant said he couldn’t remember making the access.
He did, however, assert that when he had accessed the files of his father and his brother, he had done that with their permission, at their request. Although, technically, it might be possible to argue that the access of those files was a breach of the Act, given the fact that the persons concerned were members of his own family, and the fact that the applicant had accessed the information at the particular request of the person’s concerned, I do not propose to have any further regards to those particular actions in this matter, any breach of the rules being of a technical and trivial nature.
After the conclusion of the interview between Mr Baldock and Mr Edwards, they had a short conversation. I am satisfied that, in that conversation, Mr Baldock (in response to questions from the applicant, and not as a threat) made reference to the possibility of further disciplinary or even criminal proceedings being taken against the applicant. After Mr Baldock had made that reference the applicant decided that he would be more forthcoming. The interview then recommenced.
The applicant was then “able” to remember why he had accessed the records all but one of the persons that he couldn’t remember before in the initial stages of the interview.
Without exception, (putting aside his father and brother) in relation to those persons that he could recall, the applicant asserted that the reason that he had accessed the computer records of the taxpayers concerned was, “just curiosity”.
Mr Baldock, towards the end of the interview, asked him this question, “Is there anything further you’d like to tell me about those accesses that you made, Rod?” The applicant replied, “Only what I said earlier on the first on, there was no - no attempt for any financial gain or any other reasons other than curiosity for looking at those, um, taxpayers. I’m very sorry for, uh - for doing that.”
(emphasis added.)
Initially, in respect of a taxpayer who is a well known TV personality and radio presenter who I will call “D” for the sake of protecting his privacy, the applicant told Mr Baldock that the reason he’d accessed that person’s records was “probably just for research for personal research into that sort of tax planning, what sort of - how do you, uh, make a lot of money seem like a small amount of money to avoid paying tax. And that research basically would flow over to any business ordered type activities. We have had people that we sort of have a good belief that they are making quite a lot of money, and, really, look at their tax return, there’s not much in there”.
In cross-examination the applicant was asked “How would accessing (D’s) records possibly be legitimate for your personal research?” He answered “Well, if I became more knowledgable in the way of how business operated, it would help me in business audit activities to understand how these businesses operated.”
The applicant had also accessed the tax returns of a company with the same name as (D). In reference to both of the tax returns he was asked
Q “Well, you looked at the tax returns, what did you do after that to further your research into the tax paying of (D) and his company?”
A “Well his tax returns actually returned quite a large deal of money and here didn’t look to be any way from that, that there would be scope for audit activity.”
The applicant had also been cross-examined about accessing these records when he gave evidence at the Disciplinary Appeals Committee (“DAC”) of the Merit Protection and Review agency. The transcript of his evidence is also part of exhibit 1.
At the trial of this matter he was cross-examined about what he’d said at the DAC.
At the DAC he was asked this (see page 32 of the transcript):
Q “What was it that drove you to look at these records? In asking that I mean there are plenty of successful showbiz types?”
A “I suppose, obviously, he is high profile and, but I mean on the radio you hear him often, sort of, bagging authority or, you know, mentioning, sort of, drugs and other illegal activities. Why would his tax affairs be any more kosher? Maybe there are unscrupulous as well.”
Q “ If you were a case selection officer is that the sort of profile you would have in your mind?”
A “Instinctively, that is probably something instinctively I pulled out, but I think, he has mentioned the Tax Office even. Obviously, on a higher level was he getting a salary, was he a sub-contractor, you know, there may have been other avenues there”.
Q “If you had curiosity about (D) was it purely a professional curiosity as a Tax Officer?”
A “I think so because otherwise I would not have looked up his trading company.”
He was cross-examined about those questions and answers at the trial of this matter. In particular he was asked about the last answer that he’d given. The following questions and answers occurred:
Q “Now your answers to your own counsel did not make reference to anything about personal research, did they?’
A “Well I think it was aiding my professional development to be exposed to that type of information.”
Q “You did not say anything about research into tax planning systems?”
A “No I didn’t.”
The applicant was then referred to some answers he’d given in cross-examination at the DAC (the previous answers had been given during his evidence-in-chief). At the DAC he’d been asked this question and given this answers:
Q “This little brainwave of yours to look up (D), was it on the basis that he had made some comment about the Tax Office on radio?”
A “Well I looked up - perhaps, you know, he has shown a general, I suppose disrespect for law in general. I suppose that is what led me to inquire into him as opposed to anyone else, but he had a - I suppose trying to find out, you know, was he paid salary and wages from this or did he get - was he a sub contractor? As I said in the report, sort of research into how it was done and whether or not it was a legitimate type - a lot of people...”
The applicant then agreed that he’d listened sufficiently to “D” on the Radio to know what kind of show he conducted. He agreed that the kind of show was as a showman and “was to a degree giving you irreverence to various institutions or governments, that sort of thing, is that not right?”
The applicant agreed that he understood that (D) was a showman and added he also referred quite a bit to drugs and alcohol “and all that sort of thing.”
The applicant agreed that his role in the Tax Office, in actual cases, had not been in dealing with the industry in which (D) was involved. A question was then put to him as follows:
Q “I suggest to you that there was no work related purpose whatsoever in your accessing the records of (D) or his company?”
A “In actual case, no, but I don’t think the Tax Office wants uneducated people in the office.”
In respect of (D) I do not accept the applicant’s evidence when he said (T52) “I think I was showing initiative in trying to develop a greater understanding of how tax systems work.”
The applicant was cross-examined in respect of his answer “but I don’t think the Tax Office wants uneducated people in the office,” which had been given as a justification for the accessing of these records. He was asked this question (T66):
Q “And just when, as part of your education process in the Tax Office, have you been given authority to troll through whatever records you may deem fit?”
A “As far as I was aware there was no lack of authority to do that.”
If response to questions from the Court concerning the position before computerisation, the applicant (after what seemed to the Court to be an attempt to evade giving a definite answer) answered “No” to the question, “But was it legitimate to access a file for any reason other than for a work related reason?”
He was then asked this question:
Q “Did anything change with computerisation?”
and answered “No”.
The history of the answers that the applicant gave in response to questions as to why he had access to these records is, at best for the applicant, a sorry history of obfuscation, and at worst, a series of deliberate untruths designed to conceal the fact that he’d accessed these records out of idle curiosity.
In my opinion, the applicant accessed these records out of idle, unprofessional, curiosity, not related in any way whatsoever to his work as an officer of the Australian Taxation Office.
The applicant was also asked about his access to the records of a prominent female athlete who will be described in these reason for judgment as “F”. He was asked these questions and gave the following answers at the trial of this matter:
Q “And the basis upon on which you looked up her records was because you were an amateur athlete and you were interested in the field of athletics?”
A “That’s correct.”
Q “And on the basis of your enquiires was no more, may I suggest, than idle curiosity?”
A “I was curious to see whether the income that was reflected in the return would be consistent with those of such a high profile sports person.”
Q “Is that your explanation today for why you looked up the records of (F)?”
A “That’s correct.”
The applicant was then cross-examined about his evidence at the DAC in relation to this particular taxpayer.
Before the DAC, he was reminded that he’d told Mr Baldock that his reason for looking up (F’s) records was “really curiosity. Myself being an amateur athlete just seeing what kind of money can be made in athletics and so on.”
At the DAC (page 82) the following questions and answers occurred:
Q “Are you saying that in relation to (F), you raised (F) with someone in your office who gave you authority?”
A “No I didn’t, because I - at the time that Golden Girls calendar had just come out and I figured there may have been a business interest there that could have let to an audit situation where the income was declared or undeclared or whatever.”
There was no mention before the Court of the possibility that (F) could be the subject of an audit as a result of the applicant’s examination of her taxation records.
Once again, the inconsistencies between the evidence given by the applicant in the trial of this matter, the evidence given by him before the DAC, and his answers to Mr Baldock, lead to me to reject the applicant as a witness of truth in relation to the reasons he now gives for accessing (F’s) records.
In my opinion, the applicant accessed (F’s) records out of idle, unprofessional, curiosity, spurred by the facts that she is a prominent sportswoman and he had himself had an involvement in athletics.
Another of the taxpayers whose records the applicant accessed, to whom I will give the code name “W”, was a woman that the applicant had known years before when he’d worked at a shopping centre.
At the second stage of the initial interview with Mr Baldock, at the stage when the applicant had reconsidered his position after the short break, Mr Baldock asked him this question in relation to the accessing of her records:
Q “Can you tell me why they were made?”
A “Basically just curiosity, um, being pretty silly at the time, um er, I worked - before I worked in taxation I worked at a shopping centre and, er, I pushed shopping trolleys and she was a check-out girl and, er, just made enquires to, er - just curiosity no other reason just to see what happened to her.”
He went on to repeat that the reason why he’d made those enquiries was “just curiosity or boredom, whatever, got the better of me and I made those enquiries.”
In response to the question “What information was it you were trying to obtain?” He replied “er, just, like, curiosity. Um, she was a good sort, just see what happened to her, did she get married or whatever. See what sort of job she did. Curiosity.”
Those answers given to Mr Baldock cannot, once again, stand with the applicant’s assertion made to the Court that, “I think I was showing initiative in trying to develop a greater understanding of how tax system works.”
I reject, once again, the applicant’s reason, given to the Court, for accessing the records of “W”.
In my opinion, the reason why the applicant accesed this woman’s records was idle, unprofessional, curiosity.
Another taxpayer whose records were accessed by the applicant was a friend of the applicant’s wife. I will give her the code name “K”.
In response to a question from Mr Baldock, once again after the short break during which the applicant had reconsidered his earlier answers, he said “It is someone I know, it’s a friend of my wife’s. Um, I’ve looked at it, just really curiosity, really”.
That answer cannot stand with the answer given to the Court, and I reject that part of the applicant’s evidence.
In my opinion, the reason why the applicant accessed this woman’s records was nothing but idle, unprofessional, curiosity.
In his evidence to the Court the applicant asserted that at the time he made the enquiries the subject of the charges, he was suffering from stress, and that he was suffering from depression.
He did not say that at all to Mr Baldock and only raised it in the submission he put to Mr Robert Foster, the initial decision-maker to whom Mr Baldock had reported. Indeed, the basis of his submission to Mr Foster was that his actions were “sheer stupidity”, to be excused by the fact that he was suffered from quite severe stress and that he was “severely depressed”.
At no time in that submission to Mr Foster did he attempt to say that there had been a genuine, wor- related, reason for his access of the taxpayers’ records. Indeed, he said this in the opening part of his short submission with Mr Foster:
“Basically the charges that have been levelled against me are to do with the fact that I unlawfully accessed the Taxlan Mainframe. This basically means that I accessed information on taxpayers that at the time did not involve administering the Income Tax Assessment Act.
Whilst I can see that I have failed in the responsibilities that I have been given, I know for a fact that the instances of this type of behaviour is widespread throughout the office. However I’m very sorry for my actions for which I can only describe as sheer stupidity.
The submissions to Mr Foster were yet another change of tack by the applicant, another attempt to mislead and obfuscate in relation to his reasons for accessing the information. They too, cannot stand with the assertion in his evidence, which was repeated at page 85 of the transcript, that he was exercising his initiative as a taxation officer, and attempting to gain information legitimately as a taxation officer.
No doubt it was because the applicant had realised the contradiction between what he had said in his submission to Mr Foster and what he had said to the Court that he withdrew, in his evidence to the Court, what he’d said to Mr Foster.
At page 81 of the transcript these questions and answers are recorded:
Q “My question is do you adhere today to the concession that you failed in the responsibility that you have been given?”
A “No.”
Q “And you then went on to tell Mr Foster that you were very sorry for your actions for which you could only describe as sheer stupidity. Do you adhere today to the notion that you’re very sorry for your actions and do you describe them as sheer stupidity?”
A “On reflection I could see that there was a real reason to do that, so, no again.”
These questions and answers are then recorded:
Q “Sir, the submission to Mr Foster, may I suggest to you, was an acknowledgment on your part that you had improperly accessed records for purposes unrelated to your work.”
A “At the time the time that’ what the document appears to do.”
Q “That, Sir, was your intention on 18 January 1995, that is, to submit to Mr Foster that you had done the wrong thing?”
A “My intention at the time with this submission with Mr Foster was to apply one of the penalties under section 62A.”
Q “You were pleading guilty, in effect, to the charges, may I suggest?”
A “To warrant a smaller penalty or the smallest penalty.”
Q “And upon receiving of the harshest of penalties you sought to withdraw your acknowledgment of guilty, in that the position?”
A “That’s correct.”
Slightly further on the cross-examination continues.
Q “Is there any reason for your omitting to Mr Foster the proposition that the accessing of records with which you are charged was in fact for proper, legitimate work purposes?”
A “No that’s not it that wasn’t in the submission.”
Q “I know it is not. My question is, is there any reason for not including that proposition?”
A “I suppose my inexperience at the time.”
Q “In your inexperience doing what?”
A “In preparing submissions of this type to people with legal qualifications that were.....”
Q “You knew full well that you are acknowledging your guilt in making that submission to Mr Foster, did you not?”
A “That’s correct, yes.”
The above questions and answers reveal, once again, that the applicant is a person who is prepared to obfuscate and mislead in order to bolster his case.
It is, in my opinion, not necessary to traverse the applicant’s actions in accessing the records of each and every one of these taxpayers concerned. Suffice it to say that, in my opinion, the applicant, with the possible exception of his father and brother, had no legitimate work-related reason for accessing those records. I reject his evidence that there was such a reason, and, in my opinion, find that the reason why he accessed those records was simple idle, unprofessional, curiosity.
It is appropriate to note at this point that, there being no evidence or suggestion to the contrary, that the Court accepts the applicant’s evidence that there was no element of financial gain or personal benefit, apart from the satisfaction of his curiosity, involved in his access of the various taxpayers’ records.
Furthermore, there being no suggestion or evidence to the contrary, the Court accepts the applicant’s evidence that he made no record of the information he obtained, and did not communicate that to any other persons.
In reaching the conclusions of fact in relation to this matter, the Court has borne in mind what the High Court said in Briginshaw -v- Briginshaw (1938) 60 CLR 336 . The findings of fact reached in relation to the applicant’s alleged beaches to sections 8XA of the Taxation Administration Act, in the opinion of the Court, are established on the clear preponderance of the evidence.
In the opinion of the Court, the evidence clearly establishes the following facts, in relation to each of the taxpayers whose records were accessed by the applicant, with the exception of those record of his father and brother:
The applicant knowingly accessed those records.
Those records were accessed for the purpose of obtaining information about the taxpayers’ affairs.
Those records were in the possession of the Commissioner.
They were held by the Commissioner under or for the purposes of a Taxation Law.
The applicant did not access the taxpayers’ records under the Freedom Of Information Act 1982.
The applicant did not access the taxpayers’ records in accordance with the processes of a Court or a Tribunal.
The applicant did not access the taxpayers’ records in the course of exercising powers or performing functions under or in relation to a taxation law.
It follows from the above findings of fact that the applicant, in the opinion of the Court, breached section 8XA of the Taxation Administration Act, 1953.
WAS THERE A VALID REASON FOR THE TERMINATION OF THE APPLICANT’S EMPLOYMENT?
Section 170DE(1) of the Workplace Relations Act, 1996 provides that a termination of employment is unlawful unless it is done for a valid reason.
This turns on the question of whether or not the applicants’ breach of section 8XA of the Taxation Administration Act constitutes a valid reason for the termination of his employment.
In my opinion, the evidence clearly establishes that, when the applicant accessed the various taxpayers’ records, he knew that he was, in so doing, breaching the policy of the Taxation Office. As noted to earlier in these resons for judgment, the applicant well knew that access for purposes other than work was prohibited.
Over the last 10 years or so there has been a great deal of controversy and concern in the Australian community about the privacy and confidentiality of records held in computer systems by our various governments. It is probably true to say that the most concern, expressed at the most frequent intervals, has been in relation to records held by the Australian Taxation Office.
Section 8XA of the Taxation Administration Act was introduced as part of the “Tax file numbers” legislation in 1988, with the purpose of protecting information obtained by the Taxation Commissioner under the law pertaining to income tax. I agree with what Mr Foster said in his report, that “the section is an important safeguard for our taxation system which depends heavily upon the tax file number system for it’s efficiency and effectiveness.”
The concern of the community was reflected in the second reading speech during which the Treasurer said, “The Government fully shares the genuine concerns in the community for the protection of privacy. My colleague the Attorney General, (Mr Lionel Bowen) is presently near finalising proposals for a revised general privacy Bill. He anticipates introducing this legislation to the Parliament shortly. The revised privacy Bill will include provisions relating to the tax file numbers. More specifically, the Government has also been determined to include very strict privacy safeguards in the present Bill.”
(See Hansard, 1 September 1988 at page 859).
Those “very strict privacy safeguards” included the predecessor to section 8XA as it was in force in 1994.
Furthermore, the maximum penalties for a breach of section 8XA make it clear that it is a serious criminal offence. The penalties include a $10,000 fine or imprisonment for 2 years, or both.
In assessing whether or not the applicant’s breach of section 8XA of the Taxation Administration Act constitutes a valid reason for the termination of his employment, I do not ignore the principle that, when a termination of employment is a penalty out of proportion to the conduct complained of, such a termination is unlikely to be for a valid reason. See my decision in Powell -v- Simple Computing Australian Propriety Limited IRCA NI/1977 1996, unreported, 7 February 1997.
However, in my opinion, what the applicant did constitutes serious misconduct. He knowingly accessed, out of idle, unprofessional, curiosity the records of taxpayers that he selected. Some of those taxpayers were prominent persons, and three of them were persons known to him, either presently or in the past.
In the view of the Court, the integrity of the tax file number system can only be maintained if members of the public can have confidence that, if a Taxation Officer wrongly accesses their records, and is found out, he or she will be dealt with severely. This is not to say that, in each and every case, the unauthorised access of a taxpayer’s taxation records will result in the termination of the officer’s employment. There may well be mitigating circumstances which have to be taken into account by the decision maker.
This is not the most serious of cases. The applicant made no financial gain, and intended to make no such gain. The information was neither copied nor passed on. However, it is serious and sufficient to warrant the termination of his employment.
In the opinion of the Court, the applicant’s breach of section 8XA of the Taxation Administration Act constituted a valid reason for the termination of his employment.
Was there a breach of section 170DC of the Act?
The applicant went through a long process of appeal before his case reached the Court. The final decision in relation to the termination of his employment was made at the end of that appeal process. By that time, he had had ample opportunity both to refute the allegations made against him, and to make submissions that his employment should not be terminated.
It is clear on the facts of this case that there is no breach of section 170DC of the Act.
ORDER
that the application be dismissed
I certify that this and the preceding 25 pages
are a true copy of the reasons for decision of
Judicial Registrar Patch.
Associate: Debra Scott
Dated: 5 March 1997
APPEARANCES
Counsel appearing for the applicant: Mr J Phillips Solicitor for the applicant: Leich Hasson & Dent Counsel appearing for the respondent: Mr B Skinner Solicitor for the respondent: Australian Govenment Solicitors Dates of hearing: 19 & 20 June 1996, 19 July 1996. Written submissions complete: 13 December 1996
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