FYMS and Commissioner of Taxation - [2022] AATA 3790

FYMS and Commissioner of Taxation [2022] AATA 3790 (9 November 2022)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2020/4162
Re:FYMS
APPLICANT

AndCommissioner of Taxation
RESPONDENT

Decision
Tribunal:Deputy President Bernard J McCabe
Date:9 November 2022
Place:Perth

The request for a summons or a direction under s 37(2) of the AAT Act in relation to documents sought by the applicant is refused save with respect to the ACC/CACT documents referred to on page one and paragraph [2.1] of the audit report (further identified in these reasons).
The application for a direction under s 37(2) in respect of the ACC/CACT documents is adjourned pending the receipt of further submissions.
.............................SGD...........................................
Deputy President Bernard J McCabe
Catchwords
RELEVANCE – subjective – objective – privilege – external legal advice – internal legal advice – Australian Crime Commission – Criminal Asset Confiscation Taskforce - summons
Legislation
Administrative Appeals Tribunal Act 1975
Australian Crime Commission Act 2002
Income Tax Assessment Act 1936
Taxation Administration Act 1953
Cases
Australian Prudential Regulatory Authority v VBN (2005) 88 ALD 403; [2005] FCA 1868
BFCB and Federal Commissioner of Taxation (2017) 106 ATR 456; [2017] AATA 1294
Comcare v Maganga [2008] FCA 285
Commissioner of Taxation v ACN 154 520 199 Pty Ltd (in liq) (formerly EBS & Associates Pty Ltd) [2018] FCA 1140
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504
Dimitropoulos and Australian Securities and Investments Commission [2019] AATA 1775
FYMS and Commissioner of Taxation [2022] AATA 456
Hooke v Bux Global Management Pty Ltd (No 3) [2018] FCA 836
QQRK and WHKY and Commissioner of Taxation [2022] AATA 3399
Re Wertheim v Department of Health (1984) 7 ALD 121
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Sibai v Commissioner of Taxation [2021] FCA 1353
Spicer Axle Structural Components Australia Pty Ltd and Secretary, Department of Industry, Tourism and Resources (2005) 83 ALD 104
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
VCA and Australian Prudential Regulatory Authority (2008) 105 ALD 236; [2008] AAT 580
REASONS FOR DECISION
Deputy President Bernard J McCabe
9 November 2022
This interlocutory application raises questions over the extent to which a decision-maker is required to disclose its documents to an applicant in the course of the Tribunal’s review.
The applicant, FYMS, wants to access external legal advice the Commissioner of Taxation obtained during the audit process. The advice was quoted in an audit report which prompted the issue of default assessments against FYMS under s 167 of the Income Tax Assessment Act 1936. The applicant also wants to see documents in the Commissioner’s possession that were provided by the Australian Crime Commission (the ACC) and the Criminal Asset Confiscation Taskforce (CACT). The audit report confirms a referral from the CACT precipitated the audit; ACC and CACT documents may also have been used by the decision-maker when the assessments were issued.
The applicant has asked the Tribunal for a direction under s 37(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) requiring the Commissioner to produce the documents to the Tribunal. The applicant also wants the Tribunal to thereafter make those documents available for inspection. Alternatively, the applicant has asked the Tribunal to issue a summons pursuant to s 40A of the AAT Act with orders for disclosure under s 40B.
The Commissioner says the Tribunal should not compel production and disclosure of the documents under s 37(2), or ss 40A and 40B because it has not been established the documents may be relevant to the Tribunal’s task on review. The Commissioner also:
·claims legal professional privilege in relation to the exchanges with the external legal advisers (the applicant says the privilege has been waived) which means they should not be supplied to the applicant if they are produced to the Tribunal; and
·says the documents provided by the ACC might not be disclosable because of statutory limitations on the dissemination of ACC documents.
The application revisits arguments about many of the same documents that were considered in an earlier interlocutory decision in these proceedings: FYMS and Commissioner of Taxation [2022] AATA 456. In that interlocutory decision, I declined to make the directions for disclosure and production of the documents at that early stage of the proceedings. I indicated the question might be revisited once the issues in the case crystallised following exchange of statements of facts, issues and contentions. That exchange has now occurred. I note the Commissioner has agreed to provide several documents that are mentioned in the application; I need not address those documents in these reasons.
I have decided to reject the applicant’s renewed request for directions under s 37(2) in relation to the legal advice documents because I am not satisfied those documents may be relevant to the review. I am not persuaded it is appropriate to issue a summons in respect of those documents for the same reasons. I am satisfied the ACC and CACT documents identified by the applicant may be relevant to the review, but more is required before they can be produced and accessed. I explain my reasons for these conclusions below.

The issues in the case

It is helpful to know what this case is about because the outcome of this interlocutory application turns on questions of relevance.
The broad outlines of the case put against the applicant are as follows. The Commissioner said that in the 2006-2013 years of income (the relevant years) the applicant, a natural person, was an Australian resident for tax purposes. The applicant was the director of a company that was trustee for his family trust. He was also a director of several other companies involved in the mining industry. The applicant had bank accounts in Australia and in overseas jurisdictions. At [10(c)] of the respondent’s statement of facts, issues and contentions, the Commissioner asserts:
[The applicant’s] bank accounts on their face indicate that his lifestyle was funded by a number of sources, including credit cards that were predominantly paid by funds from [the trustee company] or various mining companies.
The Commissioner conducted a covert audit. The audit report is document T164 in these proceedings. (The Commissioner had earlier asked for that document to be uplifted and returned but I decided against doing that in my earlier interlocutory decision). The report notes on its front cover that it was prompted by a referral from the Criminal Assets Confiscation Taskforce and it was apparent the audit considered some of the ACC/CACT documents. In any event, following the audit, the Commissioner issued amended notices of assessment as well as penalty assessments in respect of the 2006, 2007, 2008, 2009, 2011, 2012 and 2013 years of income. The Commissioner also decided not to remit the shortfall interest charge in all but the 2013 years of income. The Commissioner also made:
·a finding about fraud or evasion that enabled him to issue amended assessments in respect of the 2006-2009 years of income. (Amended assessments would otherwise have been out of time in those years.) That finding is reproduced in document T162; and
·a determination under Part IVA which identified particulars of a scheme.
In due course, the Commissioner also declined to remit the penalties.
The substance of the factual allegations in the respondent’s statement of facts, issues and contentions is as follows:
·the mining company payments (see respondent’s statement of facts, issues and contentions at [14]ff): the applicant’s trustee company entered into agreements with the various mining companies under which it was contemplated the applicant would provide services to each of those mining companies (such as acting as a corporate officer) in return for payments to the trustee company. The Commissioner says the payments received under those agreements should be attributed to the applicant. Mr Peadon, counsel for the applicant, points out there is no express allegation of sham articulated at this point in relation to the mining company payments;
·the deposits into overseas bank accounts (see respondent’s statement of facts, issues and contentions at [19]ff): the Commissioner said amounts lodged in various foreign bank accounts apparently controlled by the applicant during the relevant years should be attributed to the applicant; and
·transactions in a third party’s accounts (see respondent’s statement of facts, issues and contentions at [28]ff): the applicant held a power of attorney with respect to another individual. That individual had several bank accounts which the applicant apparently controlled, but the individual did not have any shares in the mining companies. One of the mining companies involved with the applicant deposited large amounts into the third party’s accounts and the Commissioner said there were transactions on those accounts which ultimately inured to the benefit of the applicant or his trustee company. (The history of these transactions and the relationship with the third party is complicated, but I do not need to engage with the details for present purposes). The Commissioner says various payments should be attributed to the applicant.
The applicant says both the legal advices and the CACT/ACC documents may be relevant to the Tribunal’s deliberations when the matter reaches the final hearing stage. He argues the documents may shed light on aspects of the evidence, including the credit of various individuals (including, potentially, a witness who may have provided evidence that the applicant suspects formed the basis of the fraud or evasion finding) and the reasonableness of the applicant’s argument (given the applicant is seeking remission of the penalties on the basis his case was reasonably arguable).

Relevance

The Tribunal’s review ultimately involves supplying an answer to a question that is divined from a statute. Getting the question right may prove to be the hardest part of the process. The other part of the process involves fact-gathering and fact-finding. The Tribunal is obliged to (a) make findings on material questions of fact and (b) refer to the evidence or other material on which those findings are based, assuming the Tribunal issues written reasons for its decision: s 43(2B) AAT Act.
Our factual enquiry is always directed to material questions of fact. What is material in each case depends on the issue(s) before the Tribunal on that occasion. But materiality or relevance is not the only concern. The evidence or other material must also be probative, and it must be gathered, tested and evaluated in a way that is procedurally fair in all the circumstances. (The reference to ‘material’ in this context reflects the fact the rules of evidence do not necessarily bind the material: s 33(1)(c) of the AAT Act. The Tribunal may, in appropriate cases, rely on material that might not qualify as admissible evidence under the rules of evidence. Whether the Tribunal should make findings based on such material must be considered in the context of the case, with particular reference to the gravity of the finding the Tribunal is asked to make: see, generally, Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [16] per Logan J).
The parties (particularly where they are represented) tend to drive the fact-gathering process in the Tribunal, although the Tribunal as an executive decision-maker may be under an obligation in appropriate cases to take a more inquisitorial role than would be appropriate for a court. To this end, the AAT Act provides court-like forensic tools including the summons and the power to take evidence on oath. While the rules of evidence do not bind the Tribunal, the power to require evidence on oath generally implies the other party or parties will have the opportunity to cross-examine witnesses in the conventional way.
The hearing, where questions of admissibility are decided, does not occur until near the end of the process. The hearing occurs immediately before the Tribunal deliberates, reasons and decides the outcome. While the parties are martialling their respective cases in advance of the hearing, the issues may be less clear.
The materiality or even existence of particular documents or witnesses may not be clearly established early in the review process. The Tribunal’s pre-hearing processes, statements of facts, issues and contentions, conferences and case management directions hearings, are designed to crystallise the issues that are genuinely in dispute and assist the parties to gather the information which the Tribunal needs to consider. As SM Taylor explained in Dimitropoulos and Australian Securities and Investments Commission [2019] AATA 1775 at [9]:
The power and discretion conditionally conferred by AAT Act s 37(2) (and the related discretions in AAT Act ss 37(1AE), 38AA(2) & [s 40A]) are to be exercised against the background statutory intention, and inherent desirability, that the Tribunal, and the parties to Tribunal proceedings, should have regard to all matters that should be taken into account for the purpose of the decision review:- see Re Wertheim v Department of Health(1984) 7 ALD 121 at 154 & AAT Act s 35(5)(c).
The first formal step in the fact gathering process occurs soon after the application for review is filed when the Commissioner is required to produce the s 37 documents. The document-intensive nature of taxation disputes and the information imbalance that often exists between the Commissioner and the taxpayer is reflected in modifications to s 37(1) of the AAT Act which are contained in s 14ZZF of the Taxation Administration Act 1953 (the TAA). The modified obligation refers to:
…every other document that is in the Commissioner's possession or under the Commissioner's control and is considered by the Commissioner to be necessary to the review of the objection decision concerned… [Emphasis added]
That modified obligation is narrower than the requirement imposed on most other decision-makers, but that is probably fair enough given the dynamics of taxation disputes – and given that experience shows 90% of the useful information at a hearing is typically found in a small subset of the documents that were filed throughout the proceedings. Any concerns about the adequacy of the Commissioner’s disclosure can be addressed through an application under s 37(2) of the AAT Act (or, more unusually, by requesting the issue of a summons).
That brings us back to the present application. The issues have to some extent been clarified following the exchange of facts, issues and contentions but doubts may yet remain about the materiality of documents and the availability of material and its relationship to the case.
While the fact-gathering process continues in advance of the hearing, the Tribunal applies a less exacting standard to a request for summons under s 40A or a request for further documents from the decision-maker under s 37(2). Relevance is still the touchstone, but the threshold question which must be answered when considering the issue of a direction under s 37(2) is essentially the same question that arises when considering a request to issue a summons: is the Tribunal satisfied the documents may be relevant to the review, in the sense the documents may shed light on any question or issue the Tribunal must address in the course of its review: see, generally, Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; Comcare v Maganga [2008] FCA 285; see also QQRK and WHKY and Commissioner of Taxation [2022] AATA 3399. I note Colvin J in Hooke v Bux Global Management Pty Ltd (No 2) [2018] FCA 836 said it was enough “if a document or class of documents gives rise to a line of enquiry relevant to the issues before the trier of fact”: at [38]. The Tribunal could be satisfied that material going to credit may be relevant if credit has been put in issue in the proceedings:[1] see Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 where Bell P referred (at [80]) to documents that “have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings” and Brereton JA emphasised (at [89]) the need for the party seeking the documents to establish the request has a legitimate forensic purpose – which might include providing a legitimate basis for cross-examination. The applicant points out credit is almost certainly in issue in this case given there is a finding of fraud or evasion.
[1] The Tribunal will be more sceptical of requests for documents that go only to credit where credit is not otherwise in issue, or where the request is so general as to be speculative: see Re Bird and Military Rehabilitation and Compensation Commission [2006] AATA 109
The Tribunal’s decision on a request for documents ultimately involves a pragmatic assessment of the potential utility of the documents. In making that assessment, the Tribunal will look askance at speculative or poorly targeted requests, and it will be sceptical of requests that impose an undue burden on an entity that is not a party to the litigation.

The legal advice

That brings me to the first category of documents sought in this case which includes communications with external senior counsel and the opinions provided by that counsel. (The discussion which follows is applicable to a request for a direction under s 37(2) of the AAT Act or a request to issue a summons under s 40A). I have already noted extracts from the opinions were referred to or quoted in the final audit report which apparently prompted the issue of the amended assessments in this case. The opinions are not referred to in the objection decision.
It should be said at once that the request for documents is unlikely to be onerous or oppressive. The documents have been identified with reasonable particularity by reference to the audit report. There is unlikely to be any logistical difficulty associated with identifying and producing the documents to the Tribunal. To the extent that the burden on the party charged with producing documents is weighed in the balance, the burden is small.
The question of legal professional privilege also does not arise at this stage of the process. That issue arises at the point where the applicant seeks access to the documents. I reach that view given the provisions of s 37(3) of the AAT Act which provides s 37 “has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.”
The privilege could not be invoked against the Tribunal in any event. The Tribunal is part of the executive, and it forms part of the same continuum of decision-making. The Tribunal member is popularly said to ‘step into the shoes of the decision-maker’ where the Tribunal exercises all the same powers, enjoys all the same privileges, and is subject to the same constraints as the original decision-maker. The decision-maker cannot assert a privilege against itself, and it cannot assert a privilege against the Tribunal on review when the Tribunal makes decisions in the place of the original decision-maker. That proposition should not be conflated with questions over whether the Tribunal should disclose that material to the applicant, or have regard to the undisclosed material for any purpose in the course of its deliberations.
The issue for present purposes is whether the documents may be relevant to issues in the review in the sense I have already described.
The applicant says the fact the decision-maker apparently relied on the advice tendered by counsel inevitably means the documents may be relevant to the task I must undertake on review. Mr Peadon says the individual tasked with compiling the documents required under s 37(1) of the AAT Act obviously thought the opinions were relevant and necessary to the review because the audit report was included in the T-documents. (The Commissioner subsequently asked for the audit report to be uplifted from the T-documents but I declined to do so for reasons I explained in my earlier decision.)

The Commissioner suggested I should not attach too much weight to the decision to include the audit report in the T-documents. I agree that particular decision does not take us far. Mr Peadon did not suggest it was a decisive consideration in any event. His principal submission was that the opinions of external counsel and the supporting documents would shed light on:
·the strength of the legal arguments about the applicant’s liability to taxation;
·evidentiary issues, including, potentially, questions of credit; and
·the extent to which senior counsel thought the applicant’s argument was arguable, which went to questions of penalty and remission.
Mr Peadon says it appears the advice went to the issues agitated in the Commissioner’s statement of facts, issues and contentions.
It is easy to see why the applicant might be interested in these documents. It is possible they might confer a forensic advantage. The documents could provide a roadmap to the Commissioner’s case and his litigation strategy. The documents might reveal vulnerabilities, or provide pointers to subjects of cross-examination. In that sense, the documents might shed light on the Commissioner’s case.
The Commissioner says the documents are irrelevant to the task the Tribunal must undertake on review. Whatever insights the documents might provide into the history of the Commissioner’s position, the documents cannot shed light on or assist the Tribunal’s task on review. In that review, the applicant must establish the taxable facts and the correct amount of tax it should pay on the assessments, and (where relevant) it must establish how a decision that was made – as to remittal, for example – should have been made differently: see s 14ZZK(b) of the TAA. Given this is a de novo review, opinions provided by counsel which might have informed the original decision-maker are irrelevant. Those opinions are just that: opinions, not taxable facts. The fact the Commissioner is entitled to put an applicant to proof on any and all facts in the Tribunal (see, for example, Sibai v Commissioner of Taxation [2021] FCA 1353 at [58]-[60] per Jagot J) underlines the irrelevance of counsel’s historical view.
The submissions of the parties focused on two Federal Court decisions that appear difficult to reconcile. The first is Australian Prudential Regulatory Authority v VBN (2005) 88 ALD 403; [2005] FCA 1868. In that case, the Authority sought judicial review of a direction made by the Tribunal under s 37(2). The Tribunal’s direction was cast in very broad terms. It required the Authority to produce all legal advices it had received which addressed the interpretation and application of the law on the issues before the Tribunal within a particular timeframe. Ryan J concluded the direction was beyond the power of the Tribunal on account of its breadth. His Honour explained (at [32]):
I am prepared to assume that a document of this kind which bears on one of the issues which the original decision-maker had to resolve in arriving at the decision and which was considered by the decision-maker is relevant in this sense. That is so whether the original decision-maker acted on, or adopted, the advice or opinion or rejected it. However, the reach of the sub-section does not extend to expressions of legal opinion or advice which may have been available to the decision-maker but were not considered in the course of arriving at the impugned decision. To hold otherwise would be to oblige the decision-maker to search out and lodge with the Tribunal and supply to the other parties, copies of every document containing a pertinent expression of legal opinion in the decision-maker’s possession or power even if the existence of the document had not been present to the mind of the decision-maker when making the decision under review. That obligation would extend to legal texts or journals which had been available to the decision-maker but not consulted by him or her.
Mr Musikanth, for the Commissioner, noted Ryan J referred to making an assumption that external advice was relevant. Mr Musikanth suggested that apparent diffidence might indicate his Honour was not necessarily committed to that conclusion. But Mr Peadon pointed out Ryan J declined to set aside the direction of DP Forgie in the Tribunal. His Honour concluded (at [58]):
…[the] Tribunal retains the facility, pursuant to s 37(2), to require APRA to lodge with the Tribunal copies of legal advices which may be relevant to the review.
Mr Peadon said that observation should be taken as settled law. He referred to a number of other Tribunal decisions where that approach has been anticipated or followed, including Spicer Axle Structural Components Australia Pty Ltd and Secretary, Department of Industry, Tourism and Resources (2005) 83 ALD 104 at [21] per DP Forgie; BFCB and Federal Commissioner of Taxation (2017) 106 ATR 456; [2017] AATA 1294 at [48] per DP Forgie; and VCA and Australian Prudential Regulatory Authority (2008) 105 ALD 236; [2008] AAT 580 at [133] per DP Forgie and Member Fice.
The Commissioner argues those decisions, to the extent they suggest legal advice is relevant, have been overtaken by the Federal Court’s more recent decision in Commissioner of Taxation v ACN 154 520 199 Pty Ltd (in liq) (formerly EBS & Associates Pty Ltd) [2018] FCA 1140 (the EBS case). In that case, the Tribunal directed the Commissioner to produce advice provided by officers of the Australian Taxation Office in relation to a central legal argument in the case. The direction was taken to be confined to advice provided in respect of the applicant company. In making its direction, the Tribunal relied on only one aspect of the case against the applicant, namely the decision not to remit penalties; the case also involved questions of liability but they were not relied upon by the Tribunal. The Commissioner argued – and the Court ultimately accepted – the Tribunal’s decision was infected by jurisdictional error because the Tribunal could not have formed the required state of mind about the relevance of the documents in question. The formation of that state of mind was required before the Tribunal’s power to issue the direction under s 37(2) was engaged.
Bromwich J recorded the Tribunal’s reasoning as to relevance as follows (at [26]):
The Tribunal…went on to state that internal legal advices produced by officers of the Commissioner on the no refining issue which either support EBS’ position, state that it is arguable or do not support its position at all, “may be relevant” to the Tribunal’s review of the objection decision, in that those advices would address EBS’ “particular circumstances” and would go to the issue of whether EBS’ position on the no refining issue was reasonably arguable, as was in turn relevant to the issue of remission. The Tribunal considered that EBS’ application for the disclosure was not premature or a fishing expedition, and that, given that the category of documents specified was narrow, it was appropriate to issue a direction for the disclosure of the relevant advices pursuant to s 37(2).
After noting the arguments of the parties on appeal, his Honour framed the question before him as follows (at [46]):
The live question to be answered by reference to the well-established analytical approach in Hetton Bellbird Collieries reproduced above is whether the Tribunal’s opinion that the legal advices sought to be produced may be relevant is an opinion that was capable of being, and was, in fact, formed, by reference to a correct understanding of the law applicable to the merits review process. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist in law, the direction was made without jurisdiction and it thus constituted a jurisdictional error.
His Honour pointed out that evaluating whether a taxpayer’s position was reasonably arguable – a central consideration when deciding whether to remit a penalty – is an objective process in which subjective opinions are presumably irrelevant: at [48]. That squarely raised the question of whether legal opinions were of any assistance in the review. Bromwich J concluded (at [49]):
It is impossible to see how…the factors that may be taken into account by the Tribunal on the question of remission of penalties can be expanded to include subjective material, especially if that material was not before the original decision-maker and could not have been known to EBS so as to influence and in some way explain the stance that it took. It is far from clear that such material would necessarily be relevant even if those circumstances did exist. Any internal legal advice held by the Commissioner concerning EBS and the no refining issue cannot be of any relevance to the objective question that the Tribunal is required to ask of itself once the facts have been determined and to answer by reference to the “relevant authorities” in relation to the remittal of penalties. If there is any issue of the non-remittal decision being unreasonable or unjust, that must be determined by reference to EBS’ individual facts and circumstances, as informed by the authorities, and not by reference to the advices of others, even if those advices were written by ATO officers. [Emphasis added]
Mr Peadon said the reasoning in EBS could be distinguished from that in VBN, to the extent EBS suggested a different approach, because:
·the opinions in EBS were not before the decision-maker whereas they were in front of the decision-maker in this case; and
·the reasoning in EBS only dealt with internal advices, whereas in this case the applicant seeks external legal advices which were front-and-centre in VBN.
Mr Musikanth acknowledged the direction in EBS related to internal advices, and he accepted the advices in question were not before the decision-maker. But he pointed to the highlighted portion of the passage which he says makes clear his Honour’s decision in EBS should not be confined to those circumstances. He is right.
The reasoning in EBS directs attention to the issue upon which the documents will shed light. If the issue in question is not one on which subjective opinions are useful because the question must be resolved having regard to the objective facts, then it stands to reason that any subjective opinion or advice will be irrelevant to the Tribunal’s task. That is so whether the opinion is held by an internal or external legal adviser.
That is not to say internal or external legal advice can never be relevant. The relevance in a particular case will depend on the ultimate question or questions the Tribunal is required to answer to resolve the matter. To that extent, VBN and EBS are consistent.
I have already pointed out the applicant in this case seeks opinions of counsel that relate to the question of whether the applicant’s position was reasonably arguable. That material cannot be relevant to my task given the objective nature of the enquiry, as Bromwich J explained in EBS. It has not been established how those advices might reveal legitimate lines of enquiry: cf Hooke. I would reach the same conclusion about opinions and advice that relate to the application and interpretation of the law, or about matters going to the quality of the evidence or the credit of witnesses, or about the finding of fraud or evasion. These are matters that will need to be evaluated by the Tribunal objectively. I am not satisfied the subjective opinions of counsel going to these matters at any earlier stage in the decision-making process have apparent relevance to the questions I must resolve at the hearing, nor is it apparent these documents might suggest appropriate lines of inquiry.
The hearing may form part of the same decision-making continuum as the issue of the assessment and the objection decision, but the Tribunal’s review occurs de novo. The review is, to that extent, a discrete stage of the executive decision-making process which involves doing over that which occurred before, albeit having regard to the material that is properly before the Tribunal. The opinions of counsel are properly introduced into the review by way of submissions at the appropriate time.

The ACC/CACT documents

The applicant has asked for several documents referred to in the audit report that the ACC provided to the Commissioner. These included:
·a document referred to at [2.1] of the report;
·a document referred to at [3.3] of the report;
·a category of documents referred to on the first substantive page of the audit report. The relevant entry refers to documents provided in support of the referral “outlining [the applicant]’s undeclared income from director fees, foreign sources and dividends”; and
·two other categories of documents referred to in the first two rows of a table at [6] of the report. The first row says: “The ATO received a dissemination from the CACT relating to [the applicant]”. The second rows says: “Numerous disseminations were received by the ACC as part of the CACT referral. These disseminations were reviewed and analysed.”
The applicant argues the ACC and CACT documents might be relevant because they may throw light on whether the legal opinions are privileged, or whether that privilege can be maintained or has been waived. As I understand it, that submission rests in part on the possibility the ACC and CACT documents were mishandled in defiance of the statutory regime governing the dissemination of confidential materials. It seems to me that question is (for now, at least) moot given I have decided against making a direction under s 37(2) and the request to issue a summons in respect of the opinions has been refused.
The applicant says there is a further basis on which the ACC and CACT documents might be disclosable under either of s 37(2) or in response to a summons. Mr Peadon points out the Commissioner’s officers clearly had regard to ACC/CACT material when the decision was made to initiate the audit: the front page of the audit report says as much. Each of the documents or categories of documents sought by the applicant in its schedule is referenced in the audit report. The contents of the document were probably considered, even if the audit report did not reveal the contents or indicate what weight should be attached to that material. Mr Peadon also said the fraud or evasion determination may have relied on transcripts or other documents furnished by the ACC relating to the applicant’s former accountant. That possibility is harder to make out from a reading of the fraud or evasion determination, although that determination explicitly relied on a position paper and other documents that were not before me or not explained. While the ACC/CACT documents did not appear to feature in the objection decision, the audit report and its conclusions were discussed.
Mr Musikanth acknowledged individual documents were mentioned in the audit report but said the references were only “fleeting” and there was limited discussion of them so it is difficult to form a view about their relevance. He said there is only a document or set of documents which was discussed in any detail (in paragraph [3.3]ff with companion references at paras [2.2(e)] and [10.1]) but those documents related to an issue (mentioned in [2.1(e)] that is not currently before the Tribunal. As it happens, those documents are some of the very documents mentioned in the applicant’s request.
The applicant has not satisfied me the documents referred to in paragraph [3.3] may be relevant in the sense explained earlier. While I accept those documents formed part of the Commissioner’s deliberations because they related to matters discussed in the audit report, it is not clear those matters in particular are relevant to the current dispute even allowing for the fact the applicant is being put to proof. At this stage, it has not been explained (even allowing for the more relaxed standard that applies at this early stage in the proceedings) how those documents might shed light on matters before me.
The two references to documents in the table at [6] of the report are also problematic. The categories are broad. A direction in those terms would require the Commissioner to produce all of the documents received from the ACC/CACT without establishing how they might shed light on the matters before me. Individual documents might be useful, for sure, but it seems to me the request is too broad and speculative.
The request in respect of documents referred to in [2.1] may have more merit. It is easier to see how a ‘financial profile’ on the applicant and his associates that was generated by the ACC might shed light on issues before me or suggest lines of enquiry. The extent of the supporting documentation included in that reference is unclear; but to the extent the financial profile is a discrete document or documents, it may be relevant in the sense I have already discussed.
The reference on the first page of the audit report to the CACT referral document or documents may also have merit. The reference suggests the referral outlines the applicant’s undeclared income. Questions about the applicant’s undeclared income are squarely before me in these proceedings. While the reference in the heading suggests the documents are potentially relevant, it is unclear whether there is a single referral document which contains information about the applicant’s financial circumstances, or if the reference is a shorthand to a much larger suite of documents that is harder to isolate and identify with precision. That will not be known until the Commissioner is asked to produce the documents.
Mr Musikanth pointed out in written submissions that two classes of ACC/CACT documents were sought by the applicant:
·primary documents provided to the Commissioner which set out factual material; and
·authorising documents which establish the dissemination and use of the documents was lawful.
I have already dealt with the primary documents. The authorising documents do not appear to be relevant to any issue before me because they do not go to taxable facts or any other matter I can decide. They relate to the Commissioner’s document handling processes and his relationship with law enforcement bodies. I do not see any basis for ordering their production. Having said that, those processes and relationships may yet be relevant to a direction under s 37(2) relating to the handful of primary documents that may be relevant to the review. If there are statutory limits on the ability of the Commissioner to disseminate documents found in a statute (most obviously the Australian Crime Commission Act 2002) or any question of public interest immunity that might arise, that issue should be squarely addressed. It seems to me it would be appropriate to afford the ACC and the Commissioner an opportunity to make submissions on those matters. The Commissioner could also take the opportunity to review the documents which I have concluded may be relevant and prepare a schedule which identifies (subject to confidentiality concerns) which documents he has identified which answer the relevant descriptions.

Conclusion

The request for a summons or a direction under s 37(2) of the AAT Act in relation to documents sought by the applicant is refused save with respect to the ACC/CACT documents referred to on page one and paragraph [2.1] of the audit report (further identified in these reasons). The application for a direction under s 37(2) in respect of those two categories of documents is adjourned pending the receipt of further submissions.