Hicks v MIMIA

The High Court of Australia considered an appeal by Mr Hicks against a decision of the Full Federal Court of Australia concerning the validity of a notice issued under section 264 of the *Income Tax Assessment Act 1936* (Cth) (the Act). Mr Hicks had been issued with a notice requiring him to attend before an officer of the Australian Taxation Office (ATO) and produce certain documents. The dispute centred on whether the notice was validly issued, given that it was signed by an officer of the ATO who was not the Commissioner of Taxation or a Second Commissioner, but rather an Assistant Commissioner.

The primary legal issue before the High Court was whether the power to issue a notice under section 264 of the Act could be validly exercised by an Assistant Commissioner of Taxation, or if it was a power that could only be exercised by the Commissioner or a Second Commissioner. This involved an interpretation of section 264 itself, as well as the provisions of the *Public Service Act 1999* (Cth) and the *Acts Interpretation Act 1901* (Cth) concerning the delegation of powers and the exercise of functions by officers of government departments.

The High Court held that the power to issue a notice under section 264 of the Act was not a non-delegable power. Their Honours reasoned that while section 264 conferred a power on the Commissioner, the *Public Service Act* and the *Acts Interpretation Act* permitted the delegation of such powers. They found that the relevant delegation provisions allowed for the delegation of powers to officers of the Commissioner's level, and that an Assistant Commissioner fell within the scope of such a delegation. Consequently, the notice issued to Mr Hicks was valid.