Hanieh and Tax Practitioners Board - [2024] AATA 3251

Hanieh and Tax Practitioners Board [2024] AATA 3251 (9 September 2024)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2024/2562
Re:Anas Hanieh
APPLICANT

AndTax Practitioners Board
RESPONDENT

DECISION
Tribunal:Senior Member D Benk

Date:9 September 2024
Place:Sydney

The applications for stay and confidentiality orders pursuant to ss 41 and 35 of the Administrative Appeals Tribunal Act 1975 (Cth) are refused.
.......................[SGD].............................................
Senior Member D Benk
Catchwords
PRACTICE AND PROCEDURE – application for stay of decision and confidentiality orders – whether discretion of the Tribunal is enlivened to grant a stay – whether a stay is desirable for the purpose of securing the effectiveness of the hearing – whether a stay with conditions is appropriate – whether consequences for applicant and third parties substantiated – public interest considerations – presumption of openness and transparency of proceedings – whether grounds for confidentiality orders made out – reputational damage and financial hardship not sufficient – applications for stay and confidentiality orders refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Tax Agent Services Act 2009 (Cth)
Cases
McLean v Australian Securities and Investments Commission [2016] AATA 22
Oaklands and Australian Securities and Investments Commission [2011] AATA 199
Evans and Tax Practitioners Board [2019] AATA 1408
Scott and Australian Securities and Investments Commission [2009] AATA 798
Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185
Devasahayam and Comcare [2010] AATA 784
Re Lawrance and CRS Australia (2004) 85 ALD 238
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
REASONS FOR DECISION
Senior Member D Benk
9 September 2024
BACKGROUND

On 7 March 2024, the Tax Practitioners Board (‘the Respondent’) terminated Mr Anas Hanieh’s (‘the Applicant’) registration as a BAS and taxation agent. It further determined that the Applicant could not apply for registration for a period of five years. This decision was made following an investigation, in which the Respondent concluded the Applicant had engaged in a number of breaches of the Tax Agent Services Act 2009 (Cth) (‘the TASA Act’) and the Code of Professional Conduct in the TASA. It was determined that breaches occurred on three main grounds;
(i)The Applicant failed to act honestly and with integrity,[1] by:
[1] Subsection 30-10(1) of the Code.
-lodging false BAS statements, which resulted in him receiving significant refunds, to which he was not entitled, and where he knew or ought to have known they were false;
-providing false or misleading statements in his email to the Respondent, dated 26 August 2023; and,
-making a false statement regarding his experience and supervision in his application for agent registration.
(ii)The Applicant failed to satisfy personal taxation obligations, by engaging in the above conduct.[2]
(iii)The Applicant failed the element of fitness and propriety,[3] by:
-receiving a total amount of $231,766 from false BAS lodgements under his ABN, which resulted in significant losses to the ATO;
-demonstrating a pattern of failure to comply with tax laws…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 3251
Decision Date: 9 September 2024

CaseChat Overview and Summary

In the matter of Hanieh and the Tax Practitioners Board, Senior Member D Benk of the Administrative Appeals Tribunal considered applications made by the applicant for a stay of the respondent's decision and for confidentiality orders in relation to the proceedings. The applicant sought to prevent the public disclosure of information and the decision itself.

The Tribunal was required to determine whether its discretion was enlivened to grant a stay of the respondent's decision, and if so, whether a stay was desirable to secure the effectiveness of the hearing. Furthermore, the Tribunal had to assess whether a stay, potentially with conditions, was appropriate, and whether the consequences for the applicant and third parties were sufficiently substantiated to warrant such orders. Crucially, the Tribunal also had to consider the public interest, particularly the presumption of openness and transparency in proceedings, and whether the grounds for confidentiality orders were made out, with reputational damage and financial hardship being specifically considered as potential justifications.

Senior Member D Benk reasoned that the applicant's submissions did not displace the paramount consideration of open justice, as mandated by subsection 35(5) of the AAT Act. The Tribunal emphasised that open justice is a crucial feature of the legal system, enhancing public confidence and accountability, and that departures from this principle are only justified if they would frustrate the administration of justice. The applicant's request for blanket confidentiality was found to be vague and non-specific, lacking compelling material to demonstrate that such orders were actually necessary. The Tribunal noted that the respondent's decision, being that of a public regulator, is ordinarily published openly, and the applicant had not provided persuasive grounds to deviate from this practice, concluding that reputational damage and financial hardship alone were insufficient to justify the requested relief.

Consequently, the applications for a stay of the decision and for confidentiality orders were refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On balance, the Tribunal is not satisfied that the submissions and contentions of the Applicant with regards to his blanket confidentiality relief displace the factors set out in subsection 35(5) of the AAT Act because:i.Such orders would hinder ‘open justice’, which is the paramount consideration in assessing whether such orders are to be made. This, in my view, is a crucial and central feature of our legal system. The reason for the principle of open justice is that, if the proceedings are fully exposed to public and professional scrutiny and criticism, interested observers are able to follow and comprehend the evidence, submissions and reasons for judgment, then public administration of justice will be enhanced and confidence in the integrity and independence of the Tribunal will be maintained. Not only does the conduct of proceedings publicly, and in open view, assist in removing doubts and misapprehensions about the operation of the system, it also limits the opportunity for abuse and injustice by those involved in the process, by making them publicly accountable;ii.Departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice (Pochi).[14] To that end, an order restricting the public availability of information can and should only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms, and do no more than is necessary to achieve the due administration of justice. The submissions before me did not allude to justice being frustrated overall if confidentiality orders were not granted;iii.It is a trite statement that one of the consequences of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. Such matters have rarely been regarded as a reason of itself for the suppression of evidence. Equally, it is common for sensitive issues to be litigated, and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle of open justice. These circumstances are no different;iv.Furthermore, there must be some material before the Tribunal, upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type. Whilst there have been submissions made, none were compelling to bypass or circumvent the foundation of open justice. In fact in this case, the blanket request was vague and non-specific;v.Finally, and possibly repetitively, it is relevant to again mention that there is nothing inherently confidential about the Respondent’s reviewable decision. It is the decision of a public regulator, and in the ordinary course of events is published openly. The Applicant has not referred to any other reason why this should not take place (with the exception of those above) which I have already determined to not be persuasive, nor proper grounds, to grant the relief sought. [14] Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64.DECISION

Ratio Decidendi

Legal Principle Established

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