Hart and Deputy Commissioner of Taxation

[2003] AATA 1153

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1153

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/269

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL JAMES PATRICK HART

Applicant

And DEPUTY COMMISSIONER OF TAXATION

Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date18 November 2003

PlaceBrisbane

Decision

The Tribunal orders that:

§   The decision under review be set aside and the matter remitted to the respondent to give effect to the Tribunal’s reasons for decision;

§   The operation of the above order be stayed for a period of 7 days; and

§   Liberty to apply granted to both parties.

(Sgd)

B J McCabe
  Senior Member

CATCHWORDS

FREEDOM OF INFORMATION - access to documents – taxation information – whether exemptions apply

Freedom of Information Act 1982
Income Tax Assessment Act 1936

Taxation Administration Act 1953

Re Hart and Deputy Commissioner of Taxation [2002] AATA 1190

REASONS FOR DECISION

18 November 2003 Mr B J McCabe, Senior Member  

Introduction

1.      Michael Hart has sought review of a decision made by the Commissioner of Taxation in relation to his request under the Freedom of Information Act 1982.  The respondent identified a large number of documents that might fall within the bounds of the applicant’s request. It was agreed I would deal with the documents in several tranches. The Commissioner wishes to withhold some of the documents, and delete material from other documents. He says some of the documents contain irrelevant material. He also relies on exemptions provided for in Part IV of the Act.

2.      On 19 November 2002, I made a decision in relation to the first two tranches of documents the respondent had identified as falling within the scope of the applicant’s request under the Freedom of Information Act 1982 (see Re Hart and Deputy Commissioner of Taxation [2002] AATA 1190).  The parties agreed with my approach and reasoning in that decision. At the hearing in relation to the third tranche, the parties indicated they were content for me to adopt the same reasoning and approach to the third tranche. I do not propose to repeat the discussion in the course of this decision: I rely instead on the reasons set out in my earlier decision, as they are applicable here. 

The Material Before the Tribunal

3. The Tribunal was provided with documents under s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). It took evidence at the hearing from Michelle Lim, an employee of the respondent. Her affidavit was received into evidence. The affidavit includes a schedule of documents setting out the exemption(s) claimed in relation to each document. Unexpurgated versions of the documents in dispute were provided to the Tribunal pursuant to s 64. I made an order under s 35 of the AAT Act directing that the documents not be disclosed to any person apart from the Tribunal and its staff.

4. At the hearing of this matter on 15 April 2003, the respondent also tendered additional schedules detailing documents in the third tranche that were formally subject to a claim for exemption under s 41. The documents related to named individuals, many of whom might be expected to consent to their details being disclosed to the applicant. I made an order under s 35 of the AAT Act directing that these documents not be disclosed to any person apart from the Tribunal and its staff pending my decision.

The Claims under Section 22(1)(a)(ii)

5.      I am satisfied that material in the following documents should not have been withheld under s 22:

§Document 3, p 56: release information contained in columns 1, 2, 8, 9, 13 and 14 of row 25, as well as the first sentence of column 3 of row 25;

§Document 15: The information in the first claimed exemption (ss 22, 38);

§Document 39, p 611: The name of the firm in row 10;

§Document 49: The exemption claimed under s 22 does not apply however the information is exempt under other provisions of the Act; and

§Document 84, p 1511: The e-mail heading information claimed under s 22.

6.      I am satisfied the claim of irrelevance has been made out in relation to the remaining claimed material in the documents referred to in the schedule.

Section 36

7.      I am satisfied that the material in the following documents should not have been withheld under s 36:

§Document 3, p 56: the first sentence of column 3 in row 25;

§Document 4, p 79: the first sentence of column 3 in row 25, as well as the four words from and including “planning” in column 11;

§Document 5, p 94: the first sentence of column 3 in row 25;

§Document 6, p 153: the first sentence of column 3 in row 25, and the first sentence in column 11 of row 25;

§Document 40, p 723: the remainder of the row relating to Cleary Hoare;

§Document 60, p 1250: the first sentence in column 3 of row 25;

§Document 61, p 1291: the first sentence in column 3 of row 25;

§Document 63, p 1376: the first sentence in column 3 of row 25; and

§Document 64, p 1411: the first sentence in column 3 of row 25.

8.      I am satisfied that the exemption has been properly claimed in relation to the other documents referred to in the schedule to Ms Lim’s affidavit.

Section 37(1)(a)

9.      Ms Lim says in her affidavit the information contained in the documents sought by the applicant relates to an ongoing investigation. She says disclosure of the material in question would forewarn the applicant and others about the extent of the respondent’s knowledge. She claims disclosure of the information would enable individuals to modify their behaviour, making the investigation more difficult.

10.     Mr Davis, for the applicant, criticised Ms Lim’s affidavit on the basis she had no first-hand knowledge of the investigation. In doing so, he echoed the criticism that was levelled at the affidavit of Ms Parcell in the earlier proceedings. Mr Davis said there was no proper evidentiary basis for Ms Lim’s conclusions. He also said the claim that disclosure would expose opportunities for defrauding the Commonwealth was just a bald assertion. He said I should not rely on her evidence. 

11. I have reviewed the documents the subject of the claim for exemption in light of the submissions of the parties. I am satisfied the following material should not have been withheld under s 37(1)(a):

§Document 14: the reference to the names of two High Court cases; and

§Document 15: the reference to the names of two High Court cases.

12.     I am satisfied the exemption has been properly claimed in relation to the remaining documents outlined in the schedule to Ms Lim’s affidavit.

Section 38

13.     The Commissioner has invoked the exemption in relation to a large number of the documents in question. In a number of cases, an exemption is claimed in relation to the same material under s 22.

14.     I am satisfied the exemption has been properly claimed in relation to material identified in the schedule to the affidavit of Ms Lim.  I am also satisfied the following material falls within the exemption (and, also, within the exemption under s 41 of the Act) and should not be released:

§Document 48: the name contained in the subheading (second paragraph);

§Document 76: the identities of the beneficiaries named in the document;

§Document 79: the identities of individuals other than the applicant;

§Document 82: the identities of individuals other than the applicant;

§Document 111, p 1610: individuals other than the applicant identified;

§Document 112, p 1616: individuals other than the applicant identified; and

§Document 118, p 1630: individual other than the applicant identified.

Section 41

15.     I am satisfied the exemption has been properly claimed in relation to all of the documents referred to in the affidavit of Ms Lim and the additional schedules provided at the hearing (Exhibit 3).  I have also identified a number of other documents (in paragraph 14 above) which contain material to which the exemption under s 41 applies.

Conclusion

16.     The decision under review is set aside and the matter remitted to the respondent to give effect to the Tribunal’s reasons for decision.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed:         Denise Burton
  Administrative Assistant

Date of Hearing  15 April 2003
Date of Decision  18 November 2003
Counsel for the Applicant         Mr P Davis
Solicitor for the Applicant          Damien Bourke and Associates
Solicitor for the Respondent     Mr M Belcher, Australian Government Solicitor