JWHL and CFQW and Commissioner of Taxation
[2012] AATA 337
•5 June 2012
[2012] AATA 337
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2362
2011/3444
2011/23632011/3445
Re
JWHL and
CFQW
APPLICANTS
And
Commissioner of Taxation
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 5 June 2012 Place Sydney 1. The following decisions made under s 22 of the Freedom of Information Act 1982 (Cth) on the grounds that not to make the subject deletions, would make each document an exempt document under s 37(1)(a) of the FOI Act, are set aside:
(i) To delete the heading, “Further Proposed Actions” and point 3 under that heading, from Document 31
(ii) To delete the fourth and fifth bullet points from the penultimate page of Document 144
(iii) To delete the final paragraph from page 0294 and the first paragraph from page 0295 of Document 224.
In substitution for these decisions, the applicants are granted access to Documents 31, 144 and 224 without the above deletions, subject to any other claimed exemption upheld by this decision.
The balance of the decisions under review made under s 37(1)(a) of the FOI Act, as set out in the Schedule to the Reasons for Decision (the Schedule), are affirmed.
2. The decisions set out in the Schedule, made under s 22 of the FOI Act, to delete “exempt matter”, on the ground that not to make the subject deletions would make each document an exempt document under s 37(1)(b) of the FOI Act, are affirmed.
3. The decision not to grant the applicants access to Documents 8 and 95 on the ground that each is an exempt document under s 37(2)(b) of the FOI Act, is set aside and remitted to the Commissioner under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) for reconsideration as to whether an alternative exemption might be claimed in respect of parts of the document. The balance of the decisions set out in the Schedule made under s 37(2)(b) of the FOI Act, are affirmed.
4. The decisions set out in the Schedule made under s 38 of the FOI Act, are remitted to the Commissioner under s 42D of the AAT Act for reconsideration in accordance with these Reasons.
5. The decision not to grant the applicants access to Document 21 on the ground that it is exempt under s 42 of the FOI Act, is affirmed.
6. The decision made under s 22 of the FOI Act, to delete from Document 92 information irrelevant to the applicants’ request in accordance with the attached Schedule, is affirmed.
7. The decisions not to grant access to Documents 32, 188, 234, 236 and 241 on the ground that each document falls outside the scope of the applicants’ request for documents under the FOI Act, are affirmed.
8. The decision in this matter takes effect 28 days after the date on which the reasons are delivered.
..................................[sgd]......................................
Senior Member A K Britton
CATCHWORDS
FREEDOM OF INFORMATION - exempt documents - claimed exemptions - prejudice to conduct of investigation - disclosure of confidential source - prejudice to investigative procedures - secrecy - legal professional privilege - irrelevance
LEGISLATION
Freedom of Information Act 1982 (Cth) - ss 3(1)(b), 4, 11(1), 11(2), 18(2), 22, 22(1)(a)(ii), 37(1)(a), 37(1)(b), 37(2)(b), 38, 42, 61, 64, Sch 3
Freedom of Information Amendment (Reform) Act 2010 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) - s 35
Income Tax Assessment Act 1936 (Cth) - ss 16(2), 264
Taxation Administration Act 1953 (Cth) - ss 355-70 and 355-25 of Sch 1
Australian Crime Commission Act 2002 (Cth) - s 59International Tax Agreements Act 1953 (Cth)
CASES
Attorney-General's Department v Cockcroft (1986) 10 FCR 180
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111
Re Walker and Australian Federal police [2010] AATA 965
Re Collie and Deputy Commissioner of Taxation (1997) 45 ALD 556; [1997] AATA 713
Re Richardson and Commissioner of Taxation (2004) 81 ALD 486; [2004] AATA 367
AWB Ltd v Cole (No 5) (2006) 155 FCR 30Re Mickelberg and Australian Federal Police (1984) 6 ALN N176
REASONS FOR DECISION
Senior Member A K Britton
5 June 2012
JWHL and his wife, CFQW, have made a request under the Freedom of Information Act 1982 (Cth) (FOI Act) to the Commissioner of Taxation for various documents relating to their taxation affairs from 1 July 1980. In answer to that request, the Commissioner has granted the applicants access to a large number of documents, however he has refused to grant access to other documents, on the ground that they are exempt under the FOI Act or irrelevant to the request. The applicants now seek review by the Administrative Appeals Tribunal of the Commissioner’s decision not to grant access to documents.
After these proceedings had commenced and the applicants had already been granted access to a number of documents, the Commissioner identified further documents falling within the scope of their request. Apart from those for which an exemption was claimed, the Commissioner granted the applicants access to those documents. In addition, after reviewing the evidence given in these proceedings, the Commissioner abandoned a number of claims and released to the applicants a large number of additional documents, in whole or part. The documents in dispute were further narrowed following the applicants’ decision not to press their claim for access to certain documents. Consent orders reflecting these developments have now been made.
The documents now in dispute between the parties (the disputed documents) are listed in the Further Amended Schedule of Documents handed up by the Commissioner on 5 April 2012 (the Schedule). The documents listed in the Schedule have been produced to the Tribunal under s 64 of the FOI Act and include six additional documents filed on 16 April 2012. The Commissioner claims that each disputed document is exempt under one or more provisions of the FOI Act, namely, s 37(1)(a) (prejudice to conduct of investigation), s 37(1)(b) (disclosure of confidential source), s 37(2)(b) (prejudice to investigative procedures), s 38 (secrecy) and s 42 (legal professional privilege). In addition, the Commissioner has refused to release six documents on the ground that they are irrelevant to the applicants’ request.
The issue to be determined in this review is whether the Commissioner’s decision to refuse to grant the applicants access to each disputed document, in whole or in part, on the ground or grounds as claimed, is the correct and preferable decision. The Commissioner bears the burden of proving that the claimed exemptions were justified or that a decision adverse to the applicants should be made (s 61 of the FOI Act).
CONFIDENTIALITY ORDERS
At the applicants’ request, orders prohibiting the publication of their names and that of a group with which they are involved have been made under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Tribunal Act). In addition, at the request of the Commissioner, I have made orders prohibiting the disclosure of, one of two affidavits prepared by ATO Assistant Commissioner, Mr Gary Marizza (Exhibit R3) and parts of his oral evidence.
BACKGROUND
The applicants are members of a group that since its inception over three decades ago has been involved in various gambling activities (the Group). In 1991 JWHL sought and obtained from the ATO a ruling that neither he nor the Group, was carrying on a business and therefore any winnings from gambling did not constitute assessable income. The ATO repeated that advice in 1991, and again in 1996. In 1995, 2002 and 2003, the ATO conducted audits (or reviews) of the applicants and the Group. On each occasion, the ATO concluded that the applicants’ gambling winnings would not count towards their assessable income.
In the period September 2006 to May 2010, JWHL made several inquiries relating to the status of the audit relating to his tax affairs. He was advised that the audit was ongoing. Throughout this period the applicants provided voluminous material to the ATO.
In 2010, following a number of inquiries made by JWHL about the delay in the completion of the audit being conducted by the ATO, the ATO issued an Audit Management Plan to the applicants. Under the Plan the ATO was required by September 2011, to provide each applicant with an amended assessment for the 2004 to 2009 tax years, and, in addition provide them with an opportunity to comment on an ATO “facts and position paper”, prior to the finalisation of the audit. The timetable was not complied with and nor were the applicants issued with, or given an opportunity to respond to, a facts and position paper prepared by the ATO.
In November last, the ATO issued notices of amended assessment to JWHL for the three years ending 30 June 2006, including in his assessable income an amount for gambling winnings. In the reasons for that decision, the Commissioner stated that “[the Group] is carrying on a business and therefore there is a deemed partnership”. The ATO issued a statement of account to CFQW around the same time. The applicants have lodged objections to the amended assessments.
The applicants contend that these decisions reverse the ATO’s repeated advice, on which they have relied, that their gambling winnings do not constitute assessable income. They assert that over the past two decades they and their representatives have fully co-operated with the Commissioner and provided all information requested.
SCHEME OF THE FOI ACT
The applicants made their request for documents prior to 1 November 2010 and therefore their request must be determined under the FOI Act as it existed prior to the amendments introduced by the Freedom of Information Amendment (Reform) Act 2010 (Cth). All references in these Reasons to “the FOI Act” are to the version of the Act as it existed prior to that amendment.
The object of the Act is to extend as far as possible the right of the Australian community to access information in the possession of the Government of the Commonwealth by:
3(1)(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
…
The Act gives individuals a legally-enforceable right to be given access to a document of an agency, other than an exempt document (s 11(1)). A person’s right of access is not affected by their reason for seeking access or by the decision-maker’s belief as to the motivation for the making of that request (s 11(2)).
An agency is not required to give access to a document if the document is an exempt document (s 18(2)). The Act defines an “exempt document” to include a document which, by virtue of a provision of Part IV, is an exempt document (s 4).
After making an initial determination that a document is exempt, the agency is required to make an assessment as to whether it is “reasonably practicable” to make a copy of the document with such deletions so that it would no longer be an exempt document:
22 Deletion of exempt matter or irrelevant material
(1) Where:
(a) an agency or Minister decides:
(i) not to grant a request for access to a document on the ground that it is an exempt document; or
(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i) would not be an exempt document; and
(ii) would not disclose such information; and
(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
…
Exempt matter is defined in s 4 to mean:
… matter the inclusion of which in a document causes the document to be an exempt document.
SECTION 37(1)(A): PREJUDICE TO AN INVESTIGATION
The Commissioner claims an exemption under s 37(1)(a) of the FOI Act in respect of 17 disputed documents (excluding duplicates). With the exception of Document 182, the Commissioner has granted access to all documents for which this head of exemption is claimed, after deleting “exempt matter” under s 22 of the FOI Act. The exemption is claimed for the whole of Document 182.
Section 37(1)(a) provides:
37 Documents affecting enforcement of law and protection of public safety
(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;
…
The Commissioner must prove, on the balance of probabilities, that disclosure of the material identified in the Schedule as exempt under s 37(1)(a) “would, or could reasonably be expected to, prejudice the investigation … of a possible failure to comply with a law relating to taxation”. The expression “would or could reasonably be expected to” is be construed in accordance with its ordinary meaning, and “requires a judgement … as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous” to expect the prejudicial outcome (Attorney-General’s Department v Cockcroft (1986) 10 FCR 180, at 190, approved in Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111, at 123).
It is common ground that the audit conducted by the ATO in respect of the applicants over the past several years is “an investigation of … a possible failure, to comply with a law relating to taxation” and thus falls within the scope of s 37(1)(a).
The applicants make a number of arguments in support of their contention that the Commissioner cannot rely on s 37(1)(a).
First, they submit that the mere fact that an investigation is on foot is not a ground of exemption. The Commissioner concedes this but says that this is not his position.
Second, they submit that the Commissioner must identify a specific instance or instances of prejudice that could reasonably be expected to result from disclosure. They argue that it is insufficient for the Commissioner to point to a general possibility that the applicants may seek to frustrate or prejudice the investigation by tailoring or concealing evidence or information from the Commissioner.
Third, they argue that the mere risk, possibility or chance of prejudice is insufficient to give rise to the exemption. They argue that the Commissioner must predict the effect of disclosure and that the “prediction must have a factual basis” found in the document itself or in some other form of evidence (see Re Walker and Australian Federal Police [2010] AATA 965 at [146]). The applicants submit that not only is there no evidence of the applicants or other members of the Group tailoring or concealing information, the weight of evidence suggests that they have in fact been co-operative and forthcoming in producing information to the ATO. The applicants point, among other things, to the large volume of material they have provided to the ATO and the repeated invitation extended to the Commissioner to rule on the proper characterisation of their gambling winnings.
Fourth, the applicants submit that, given the length of time the investigation (or various forms of audit) have taken over the last 20 years or so, the prospect of prejudice to the investigation by disclosure must now be remote.
Fifth, they point out that until recently, the Commissioner had not suggested a failure of compliance with tax laws. They suggest that “one explanation” for the length of time taken by the ATO to finalise its assessments is that “delay suits its interests”, as it allows the ATO to observe whether the Group wins or loses. They suggest that the documents may disclose some sort of improper “deferral strategy” on the part of the ATO which is itself prejudicing the audit.
Sixth, they emphasise that an audit conducted by the ATO is not a covert operation and, indeed, under the ATO’s self-assessment scheme is almost always conducted with the involvement of the subject tax-payer.
The documents subject of exemption claimed under this head have been produced to the Tribunal and examined.
Apart from that primary material, the evidence to which I have had regard in relation to this issue is:
·The “open” affidavit of Mr Gary Marizza sworn 28 November 2011 at [18]-[19];
·The confidential affidavit of Mr Marizza sworn 29 November 2011 at [4]-[8];
·The confidential Amended Schedule of Documents, in particular the commentary about the disputed documents;
·The open and confidential oral evidence of Mr Marizza in relation to particular parts of the documents in question.
I accept that there must be a factual basis for a reasonable expectation that an investigation may be prejudiced by the disclosure of information.
The documents for which exemption is claimed singly and taken as a whole reveal that the audit investigations are ongoing and that a number of lines of inquiry are being followed. With the exception of the parts of Documents 31, 144 and 244, discussed below, disclosure of the deleted material, in my view, could reasonably be expected to prejudice the ongoing investigation by forewarning and forearming the applicants about live aspects of it.
Mr Marizza’s open and confidential evidence supports this conclusion. In his open affidavit, he stated that he was concerned that if the material was disclosed prematurely to the applicants, “it would reveal to them the next steps to be taken in the audits which would allow them to frustrate the audits by concealing or destroying relevant documents and information which the audit team intends to seek”.
In his confidential evidence, he provided supporting evidence that went considerably further than mere supposition or speculation about a generalised possibility of prejudice. He provided examples of specific lines of inquiry that the ATO intends to follow and the purpose of those inquiries. It is evident that the fruits of those inquiries may be critical to investigation.
Some evidence was also provided which, if accepted, suggests that the applicants and other members of the Group may tailor their evidence or responses to audit inquiries if forewarned of the intended approaches to be taken by the audit team. This evidence has not been disclosed to the applicants and therefore they have not had an opportunity to address Mr Marizza’s concerns. It may be that the information is ultimately found to be unreliable. If accepted, however, this evidence would contradict the claims that members of the Group have been in all respects helpful to the investigators and have sought at all times to deal with the ATO transparently.
Less contentiously, the evidence also contradicts the suggestion that the ATO has a “deferral strategy” and is somehow lying in wait for the Group. On the contrary, the information contained in the documents indicates that there are still lines of inquiry being actively pursued.
The complaint that the audit has been going on for too long is an argument for another place. The evidence presented confidentially by Mr Marizza goes some way, however, to explaining that the activities of the Group have changed over time, resulting in the lengthening of time taken over this audit.
I have examined each of the documents for which an exemption under this head is claimed. I am satisfied that with the exception of the following, the decisions to claim an exemption under s 37(1)(a) in relation to each of the documents identified in the Schedule, are justified. In addition I am satisfied that it is not possible to make a copy of Document 182 with such deletions so as to render it a non-exempt document. Further, I am satisfied that the entirety of the material deleted from the balance of the documents for which this is exemption is claimed, constitutes “exempt matter”. Regrettably I am unable to provide more comprehensive reasons for these decisions as to do so would disclose “exempt matter” (s 63(2) of the FOI Act).
Document 31 — ATO summary sheet re the investigation into the Group (approx. March 2007)
The claim for exemption under this head is made in respect of two parts of this document.
Point 3 under the heading “Further Proposed Actions” discloses the ATO’s intention to interview a person retained by the applicants in a professional capacity. This person has been in regular contact with the ATO about the applicants’ tax affairs over a number of years. The basis of the anticipated prejudice is not self-evident and nor has it been explained. I am not persuaded that disclosure could reasonably be expected to prejudice the audit.
The decision to delete from Document 31 the heading “Further Proposed Actions” and point three under that heading, is set aside. I am satisfied that the exemption claimed in relation to the balance of the material deleted from Document 31 is justified.
Document 144 — Copy of a power point presentation about the Group given at an ATO taskforce meeting (31/10/2008)
An exemption under this head is claimed in respect of the third, fourth and fifth bullet points of the penultimate page of this document (page 3785).
In contrast to the third bullet point, the fourth and fifth bullet points (for which an exemption under s 38 is also claimed) do not appear to contain material that relates to any live aspect of the audit. Even if that were the case, the basis of any anticipated prejudice is not apparent. The claim for an exemption in relation to the fourth and fifth bullet points is not justified; the claim in relation to the third bullet point is justified.
Document 224 — Draft ATO report re gambling and carrying on a business (circa 2009)
An exemption is claimed in relation to nine parts of this document. I am satisfied that each claim is justified, except those made in respect of page 0294 and the first part of page 0295 (the offending material). The offending material relates to one of the criteria used by the ATO to assess whether gambling activities undertaken by a person constitute a business (Taxation Ruling IT 2655 Income Tax: Betting and Gambling - Whether Taxpayer Carrying on Business of Betting or Gambling). The offending material is unremarkable and sets out in general terms a factor the author considers relevant to that assessment. The Statement of Reasons for the decision to issue JWHL an amended assessment, dated 23 November 2011, (especially pp 7 and 8) squarely raises this factor as relevant to that assessment and contains more detailed information about this issue than that deleted from pages 0294 and 0295. I am not satisfied that the disclosure of the offending information could reasonably be expected to prejudice the conduct of the audit.
SECTION 37(1)(B): INFORMANTS
The Commissioner claims that 30 documents are exempt under s 37(1)(b). The Commissioner has granted the applicants access to each document after making deletions under s 22 of the FOI Act. A document is exempt under s 37(1)(b) if its disclosure “would, or could reasonably be expected to disclose, or enable a person to ascertain, the existence or identity of a confidential source of information … in relation to the enforcement or administration of the law”.
The Commissioner contends that the documents for which this exemption is claimed either identify informant(s) or discuss the informant(s) and/or the information provided by them. The applicants do not seek access to documents that satisfy s 37(1)(b) but ask the Tribunal to scrutinise each document for which this exemption is claimed, to determine whether it meets the description given by the Commissioner in the Schedule and the elements of the provision.
Most of the disputed documents refer to the informant(s) by name (for example, Documents 8, 38 and 50) or contain information which would enable the informant to be identified (for example, Documents 21 and 31). Others detail the information provided by the informant(s) (for example, Documents 40, 47 and 129) in such a way so as to allow the identity of the informant to be ascertained.
Having examined each document for which this exemption is claimed, I am satisfied that the decision to make the deletion under s 22 of the FOI Act, is justified.
SECTION 37(2)(B): PREJUDICE TO INVESTIGATIVE PROCEDURES
The Commissioner claims an exemption under s 37(2)(b) of the FOI Act in respect of 17 documents. Section 37(2)(b) provides:
37 Documents affecting enforcement of law and protection of public safety
…(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or
To rely on this exemption, the Commissioner must establish that disclosure of the subject document:
·would or could reasonably be expected to disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law; and
·the disclosure of the subject method or procedure would, or would be reasonably likely to, prejudice the effectiveness of that method or procedure.
I do not accept the applicants’ primary submission that s 37(2)(b) has no application because, they assert, they have neither breached nor evaded the law. It is not a pre-condition to the operation of the provision that there be evidence of an FOI applicant’s breach or evasion of the law; rather the provision will be enlivened where lawful methods or procedures for preventing, detecting etc. breaches or evasions of the law, are relevantly affected.
To enliven s 37(2)(b) it is not enough that the relevant document merely disclose the fact that the ATO exchanges information with third parties, including law enforcement agencies. As the applicants point out, the ATO’s power to do so is not only a matter of public record but conferred by statute: see for example, the Income Tax Assessment Act 1936 (Cth) (eg, s 264), the Taxation Administration Act 1953 (Cth) (eg, s 355-70 of Schedule 1), the Australian Crime Commission Act 2002 (Cth) (eg s 59) and the Exchange of Information articles in Australia’s Double Taxation Agreements and Taxation Exchange of Information Agreements (see International Tax Agreements Act 1953 (Cth)).
Nor will the exemption be available if the offending document does nothing more than reveal that the ATO has sought or obtained information about the applicants or other members of the Group, from government agencies such as, the Australian Transaction Reports and Analysis Centre (AUSTRAC), the Australian Federal Police and Australian Customs.
Apart from Document 8, the s 37(2)(b) exemption is only claimed for part of each document.
Document 8 (duplicated by document 95): A briefing paper prepared for the AFP by an officer of the ATO
This document outlines allegations received by the ATO about the Group, the history of the investigations into those allegations, the results of those investigations and the preliminary findings made. The relevant method or procedure is the interagency communication between the AFP and the ATO.
The Commissioner concedes that the fact that there is communication between the ATO and the AFP about the applicants’ tax affairs is of itself not a matter that warrants exemption however contends that the exemption is warranted because Document 8 reveals the methodology, extent and depth of the level of that communication, citing in support the following passage in Re Mickelberg and Australian Federal Police (1984) 6 ALN N176 at [19]:
It is of course difficult to discuss adequately the application of this provision to the documents now under review. Perhaps the most useful comments are to say firstly, that in the public interest it is essential that law enforcement agencies have speedy, accurate and secure systems of communication, both within an agency and between agencies especially where agencies have different fields of responsibility. Secondly, it is one thing for observers to deduce, with varying success from everyday experience media reports and other informal sources, what appear to be the methods and procedures employed by such agencies to achieve their objects, but it is quite another thing to have spelt out publicly from the agencies' own documents or in the proceedings of a Tribunal such as this what those methods and procedures are. The risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them.
Apart from disclosing that a communication took place between the AFP and the ATO about the applicants’ tax affairs, the briefing paper does not disclose details of the relationship between the agencies, or any methods or procedures that have or might be employed as a consequence of that relationship. As conceded, the fact that the ATO exchanges information with the AFP about tax payers is unremarkable. Equally unremarkable it seems to me is the fact that the ATO provides the AFP with a high level of detail about its investigation into the subject tax payer’s affairs. While arguably some of the information contained in Document 8 might prejudice the conduct of the audit into the applicants’ tax affairs it does not necessarily follow that disclosure of that information would, or could reasonably be expected to, prejudice the effectiveness of the interagency communication.
The Commissioner has failed in my opinion to justify this exemption. It may be that parts of the document may be exempt under ss 37(1)(a) and/or 37(1)(b) (see, for example reference to informant at page 4, first paragraph). The decision not to grant access to Documents 8 and 95 are set aside and remitted to the Commissioner under s 42D of the AAT Act for reconsideration as to whether an alternative exemption might be claimed in respect of parts of the document.
Documents 21, 27, 50 (p 0045), 53 (1st s 38(2)(b) deletion on p 0330), 94 (duplicate of document 27), 129, 144 (p 3781), 164, 204, 206 (duplicate of document 27), 214, 216, 231 (pp 1401 & 1st s 38(2)(b) deletion on p 1402) and 232 (1st s 38(2)(b) deletion on p 1405)
Unless otherwise stated, where the Commissioner has made multiple claims for exemption under s 37(2)(b) in respect of a single document, the following comments apply to all claims.
The redacted material relates to surveillance operations undertaken by a government agency(s). In contrast to Document 8, the redacted material goes somewhat further than merely disclosing that there has been an exchange of information between agencies about the investigation of the tax affairs of the applicants or other members of the group. In each case, the redacted material discloses the subject of the operation and in broad terms the method employed. The amount of detail contained in each redaction varies — Documents 216 and 27 (page 0051) for example, contain significant detail about the investigative techniques used by the subject agency. In contrast, the material deleted from Document 21 is more general in nature but read in context of the document itself and the disputed documents as a whole, discloses the subject of the operation and the methodology used to obtain further information.
I am satisfied that without the above deletions each document would be exempt under s 37(2)(b) of the FOI Act.
Documents 40, 50 (p 0046), 539 (2nd s 37(2)(b) deletion on p 0330), 144 (p 3782), 158 (duplicate of Document 40), 204, 231 (2nd s 37(2)(b) deletion on p 1402) and 232 (2nd s 37(2)(b) deletion on p 1405)
The redacted material relates to information exchanges. In each case, the method of interchange is revealed. Without revealing exempt material it is not possible to say more about the nature of the exchange. I am satisfied that the exchange constitutes a “lawful procedure for the purpose of s 37(2)(b) of the FOI Act. Given the nature of the procedure I have concluded that its disclosure would reasonably be likely to prejudice its effectiveness. The claims for exemption are justified.
Documents 126 and 147
The material deleted from Documents 126 and 147 refers to an investigation undertaken by a government agency. The deleted material discloses a step in that investigation. According to Mr Marizza, the investigation is unrelated to the applicants. In closed evidence, he explained the basis for his opinion that disclosure could prejudice the effectiveness of the subject investigation. I am satisfied that there is a proper foundation for that opinion. The claims for exemption are justified.
Summary: Section 37(2)(b) – Prejudice to investigative procedures
The decision not to grant the applicants access to the whole of Documents 8 and 95 on the ground that each is an exempt document under s 37(2)(b) of the FOI Act is set aside and remitted to the Commissioner under s 42D of the AAT Act for reconsideration as to whether an alternative exemption might be claimed in respect of parts of the document. The balance of the decisions made in relation to the claims for exemption under s 37(2)(b) of the FOI Act, are affirmed.
SECTION 38: SECRECY PROVISIONS AND MIXED INFORMATION
The bulk of the documents for which exemption is claimed by the Commissioner concern the interaction of s 38 of the FOI Act and s 355-25 of Schedule 1 of the Taxation Administration Act 1953 (Cth) (the TAA).
Section 38 provides:
(1) Subject to subsection (1A), a document is an exempt document if:
(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and
(b) either:
(i) that provision is specified in Schedule 3; or
(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.
(1A) A person's right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.
(2) Subject to subsection (3), if a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person.
(3) This section applies in relation to a document so far as it contains personal information about a person if:
(a) the person requests access to the document; and
(b) disclosure of the document, or information contained in the document, is prohibited under section 503A of the Migration Act 1958 as affected by section 503D of that Act.
…
In short, s 38 exempts documents or information contained in them if disclosure of the relevant information is prohibited under a statutory provision and that provision is listed in Schedule 3 of the FOI Act. Section 355-25 of the TAA is one such provision captured by Schedule 3 of the FOI Act.
Section 355-20 of Schedule 1 of the TAA states that, “The main protection for taxpayer confidentiality is in this Subdivision. It is an offence for taxation officers to disclose tax information that identifies an entity, or is reasonably capable of being used to identify an entity, except in certain specified circumstances”.
Section 355-25 then deals with the offence of disclosure of protected information by taxation officers:
(1) An entity commits an offence if:
(a) the entity is or was a taxation officer; and
(b) the entity:
(i) makes a record of information; or
(ii) discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection (2)) or to a court or tribunal; and
(c) the information is protected information; and
(d) the information was acquired by the first-mentioned entity as a taxation officer.
Penalty: Imprisonment for 2 years.
(2) An entity (the covered entity) is covered by this subsection in relation to * protected information that relates to another entity (the primary entity) if:
(a) the covered entity is the primary entity's * registered tax agent or BAS agent; or
(b) the covered entity is a * legal practitioner representing the primary entity in relation to the primary entity's * tax affairs; or
(c) the primary entity is an * incapacitated entity and the covered entity is a * representative of the incapacitated entity; or
(d) the covered entity is the primary entity's * legal personal representative; or
(e) the covered entity is the primary entity's guardian where the primary entity is a minor or suffers from mental incapacity; or
(f) the covered entity and the primary entity are members of the same * consolidated group or * MEC group; or
(g) the covered entity is a representative of the primary entity who has been nominated by the primary entity in the * approved form to act on that entity's behalf with respect to protected information.
The issue here is whether or not “mixed personal information”, that is, information relating to either of the applicants and to a third party or third parties, is exempt by virtue of the operation of the two provisions.
The concept of “mixed personal information” was developed in Re Collie and Deputy Commissioner of Taxation (1997) 45 ALD 556 at 564 and Re Richardson and Commissioner of Taxation (2004) 81 ALD 486 at 504 by Deputy President Forgie. In Richardson, she said:
The exception in s 38(2) excludes from exemption personal information relating to the person seeking access. It raises, however, the issue of “mixed personal information” that I considered in Re Collie and the Deputy Commissioner of Taxation. By “mixed personal information”, I mean that access to the document under the FOI Act would disclose information or information about a person or persons in addition to information about the person requesting access to it. As I did in that case, I have examined each part of each letter to determine whether the information relating to Mr Richardson can be separated from that relating to other persons. Where it can be separated without disclosing personal information about other persons, I have excluded it from exemption under s. 38. Where it cannot be so separated, I have determined that it is exempt even though it may still relate to Mr Richardson’s personal affairs. I have taken that view for the exception in s 38(2) only applies to personal information about the person requesting the information.
The applicants contend that this approach was based on the Tribunal’s application of the former s 16(2) of the Income Tax Assessment Act 1936 (Cth) (the ITAA) and that the prohibition it contained against the disclosure of “mixed personal information” is not found in s 355-25. They argue that it is permissible for the ATO to disclose information of a mixed personal nature provided that the information relates to the taxpayers who seek that information.
In my view, however, there is no material difference between the prohibitions contained in the former s 16(2) of the ITAA and s 355-25. Section 355-25(1)(b)(ii) could not be clearer in its purpose of preventing tax officers disclosing protected information relating to third parties to any entity other than that person or entity or a limited number of entities specified in s 355-25(2). That point is emphasised, if it needs to be, by the statement of statutory purpose outlined in s 355-20. Taxation officers may not disclose information that identifies or is capable of identifying third party taxpayers to others unless they fall within the statutory exceptions to that rule. It is not argued that the applicants fall within any of the exceptions in s 355-25(2).
The principle established in Collie and Richardson holds good today. It follows that if the information concerning third parties can be separated from the information relating solely to the applicants, that information can remain secret but the rest of the information can be disclosed to the applicants under s 38. If, however, the information cannot be disentangled or unwoven, the document or information contained within the document remains exempt under s 38.
Shortly before the close of proceedings and after the Commissioner had produced all but six documents to the Tribunal under s 64 of the FOI Act, the applicants brought to the attention of the Tribunal that ten members of the Group had appointed JWHL to act as their representative with respect to their taxation affairs. The parties agree that as a result of this appointment, any claim for exemption under s 38 where the deleted material contains information about any of those ten persons can no longer be sustained. The parties also agreed that given the large numbers of documents for which an exemption under this head was claimed, the Commissioner should be permitted to defer the task of revising those documents, consequent upon JWHL’s appointment, until after the ruling on the issue of principle concerning the interaction of s 38 and s 355-25 has been made.
The parties acknowledge that after this task is completed there may still be argument, if the Commissioner decides that some deleted material, containing information about third parties and the applicants, cannot be disentangled. I have decided that the most appropriate course in these circumstances is to remit for reconsideration under s 42D of the Tribunal Act, the decisions made by the Commissioner in relation to those documents listed in the Schedule for which a claim for exemption under s 38 of the FOI Act has been made. In making this decision, I have taken into account the applicants’ concerns about lack of tribunal oversight and further delay. In my view, these concerns are adequately addressed by s 42D which imposes a time limit for the making of the reconsideration decision and for all practical purposes preserves tribunal oversight, unless the applicants decide to withdraw their application for review.
SECTION 42: LEGAL PROFESSIONAL PRIVILEGE
Section 42 exempts a document “of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege”. The Commissioner claims an exemption under this provision for the entirety of Document 21 — a file note of a meeting between ATO officers and a barrister, at which the barrister provided advice in relation to the “Group investigation” undertaken by the ATO. The applicants have requested that the tribunal examine the document to determine whether it answers the description given by the Commissioner of being prepared for the dominant purpose of the barrister providing legal advice to the Commissioner.
It falls to the Commissioner to demonstrate that “the communication was undertaken ... for the dominant purpose of ... obtaining legal advice” (AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at 44 per Young J).
Examination of the document confirms that the content of the document consists of a summary of discussions between the ATO and the barrister and legal advice given by him. The privilege claim for exemption is accordingly justified.
SECTION 22: RELEVANCE
The Commissioner has refused to grant the applicants access to six documents on the ground that they contain material irrelevant to their initiating request — Documents 32, 92, 188, 234, 236 and 241 (duplicate of 236). With the exception of Document 92 the “exemption” is claimed in respect of the whole of each document.
Section 22 applies where a decision-maker has decided that to grant a request for access to a document “would disclose information that would reasonably be regarded as irrelevant to that request”. Having made that initial assessment the decision-maker must consider whether it is possible to make a copy of the document with such deletions so that the copy would not disclose such information and, whether it is reasonably practicable to do so (ss 22(1)(b) and 22(1)(c)). In my opinion, s 22 has no application where all of the information contained in the document could reasonably be regarded as irrelevant to the initiating request. I note that a different conclusion was reached in Re Haneef and Australian Federal Police [2009] AATA 51; (2009) 49 AAR 395 (at [30]).
An agency’s obligation to grant a request for documents made under the FOI Act extends only to those documents that fall within the scope of the class of documents requested (ss 15, 18). Accordingly, where, as in this case, it is claimed that the whole of the document is irrelevant to the applicants’ request it is necessary to, first, identify the class of documents requested, and then decide whether the subject document falls within that class. In approaching this task, consistent with the beneficial nature of the FOI Act, I have broadly construed the class of documents requested and where there is any uncertainty about whether a document falls within that class, made a decision favourable to the applicants.
The documents requested by the applicants in broad terms can be described as all documents relating to any matters “regarding a review of [their] taxation affairs for the period from 1 July 1980”.
Document 32 is an email between ATO officers about an unnamed tax payer who, according to Mr Marizza, is neither linked to the applicants, nor a member of the Group. The email is described in the Schedule as an email “re sports arbitrage trading and taxation”. The sender and recipient are ATO officers identified in the applicants’ initiating request as possibly holding documents about their tax affairs.
As the applicants point out there is evidence to suggest that some ATO officers are of the opinion that there is a link between their tax affairs and sports arbitrage. On the material before me, I am unable to identify with precision the purported scheme the subject of the email and therefore I am unable to exclude the possibility that it is of a type that the applicants are, or are suspected of being, involved with. However I am satisfied that the email relates to a specific issue relating to the affairs of the unnamed tax payer and that the tax payer is not linked in any relevant way to either the applicants or the Group. The possibility that the subject taxpayer and the applicants might be involved in the same class of activity is not enough to bring the document within the scope of the request.
Document 188 relates to any inquiry by a tax payer. The taxpayer is not one of the applicant or a member of the Group. It is irrelevant to the applicant’s request.
Document 234 is described in the Schedule as an “ATO report re settlement guidelines”. It makes no mention of the applicants or the Group or indeed any taxpayer. It is cast in general terms. It is unclear why it was identified as falling with the scope of the request.
Document 236 (duplicated by Document 241) is described in the Schedule as an email between ATO officers “re a spread betting test case”. It consists of a chain of emails between ATO officers, a number of whom were identified in the applicants’ initiating request as having some involvement with their tax affairs. Mr Marizza explained that the subject of the test case bears no relationship to the applicants. That claim is consistent with a reading of the documents.
I am satisfied that Documents 32, 188, 234, 236 and 241 fall outside the scope of the applicants’ request. The decision not to grant access to these documents is affirmed.
Document 92 is a three-page document described in the Schedule as an email between ATO officers “re on line gambling”. The Commissioner has granted the applicants access to part of the document after deleting an email from the ATO to various third parties and a subsequent forwarding email. I accept Mr Marizza’s claim that the deleted email relates to an ATO project that is unrelated to the applicants and the Group.
I am satisfied that the entirety of the material deleted from Document 92 constitutes exempt matter. Accordingly the decision to delete the two emails dated 7 August 2009 from Document 92 is affirmed.
SUMMARY
For the reasons given I have decided that:
1.The following decisions made under s 22 of the FOI Act on the grounds that not to make the subject deletions, would make each document an exempt document under s 37(1)(a) of the FOI Act, are set aside:
(i)To delete the heading, “Further Proposed Actions” and point 3 under that heading, from Document 31
(ii)To delete the fourth and fifth bullet points from the penultimate page of Document 144
(iii)To delete the final paragraph from page 0294 and the first paragraph from page 0295 of Document 224.
In substitution for these decisions, the applicants are granted access to Documents 31, 144 and 224 without the above deletions, subject to any other claimed exemption upheld by this decision.
The balance of the decisions under review made under s 37(1)(a) of the FOI Act, as set out in the Schedule to the Reasons for Decision (the Schedule), are affirmed.
2.The decisions set out in the Schedule, made under s 22, to delete “exempt matter”, on the ground that not to make the subject deletions would make each document an exempt document under s 37(1)(b) of the FOI Act, are affirmed.
3.The decision not to grant the applicants access to Documents 8 and 95 on the ground that each is an exempt document under s 37(2)(b) of the FOI Act, is set aside and remitted to the Commissioner under s 42D of the AAT Act for reconsideration as to whether an alternative exemption might be claimed in respect of parts of the document. The balance of the decisions set out in the Schedule made under s 37(2)(b) of the FOI Act, are affirmed.
4.The decisions set out in the Schedule made under s 38 of the FOI Act, are remitted to the Commissioner under s 42D of the AAT Act for reconsideration in accordance with these Reasons.
5.The decision not to grant the applicants access to Document 21 on the ground that it is exempt under s 42 of the FOI Act, is affirmed.
6.The decision made under s 22 of the FOI Act, to delete from Document 92 information irrelevant to the applicants’ request in accordance with the attached Schedule, is affirmed.
7.The decisions not to grant access to Documents 32, 188, 234, 236 and 241 on the ground that each document falls outside the scope of the applicants’ request for documents under the FOI Act, are affirmed.
8.The decision in this matter takes effect 28 days after the date on which the reasons are delivered.
SCHEDULE OF DOCUMENTS
| No. | Decision sought by Respondent | Exemptions claimed by Respondent | AAT Decision |
| 8. | Wholly exempt | s.37(1)(b) - part | Affirm |
| s.37(2)(b) - whole | Remit | ||
| s.38 - part | Remit | ||
| 9. | Wholly exempt | s.38 - whole | Remit |
| 21. | Wholly exempt | s.37(1)(b) - part | N/A |
| s.37(2)(b) - part | N/A | ||
| s.38 - part | N/A | ||
| s.42 – whole | Affirm | ||
| 24. | Release in part | s.38 - part | Remit |
| 27. | Release in part | s.37(1)(b) - part | Affirm |
| s.37(2)(b) - part | Affirm | ||
| s.38 – part | Remit | ||
| 31. | Release in part | s.37(1)(a) - part | Decision to delete the heading “Further Proposed Actions” and point 3 under that heading, is set aside. Balance of decision affirmed. |
| s.37(1)(b) - part | Affirm | ||
| s.38 – part | Remit | ||
| 32. | Irrelevant to request | N/A | Affirm |
| 36. | Release in part | s.38 - part | Remit |
| 37. | Release in part | s.38 - part | Remit |
| 38. | Release in part | s.37(1)(b) - part | Affirm |
| s.38 – part | Remit | ||
| 39. | Release in part | s.37(1)(a) - part | Affirm |
| 40. | Release in part | s.37(1)(a) - part | Affirm |
| s.37(1)(b) - part | Affirm | ||
| s.37(2)(b) - part | Affirm | ||
| s.38 – part | Remit | ||
| 41. | Release in part | s.38 - part | Remit |
| 46. | Release in part | s.38 - part | Remit |
| 47. | Release in part | s.37(1)(b) - part | Affirm |
| s.38 – part | Remit | ||
| 48. | Release in part | s.37(1)(a) - part | Affirm |
| s.38 – part | Remit | ||
| 50. | Release in part | s.37(1)(a) - part | Affirm |
| s.37(1)(b) - part | Affirm | ||
| s.37(2)(b) - part | Affirm | ||
| s.38 – part | Remit | ||
| 53. | Release in part | s.37(1)(b) - part | Affirm |
| s.37(2)(b) - part | Affirm | ||
| s.38 – part | Remit | ||
| 62. | Release in part | s.38 - part | Remit |
| 64. | Release in part | s37(1)(b) - part | Affirm |
| s.38 – part | Remit | ||
| 67. | Release in part | s.38 - part | Remit |
| 77. | Release in part | s.38 - part | Remit |
| 84. | Release in part | s.38 - part | Remit |
| 85. | Wholly exempt | s.38 - whole | Remit |
| 88. | Wholly exempt | s.38 - whole | Remit |
| 89. | Release in part | s.38 - part | Remit |
| 90. | Release in part | s.37(1)(a) - part | Affirm |
| 92. | Release in part | s.22 - part | Affirm |
| s.38 – part | Remit | ||
| 95. | Wholly exempt | s.37(1)(b) - part | Affirm |
| s.37(2)(b) - whole | Remit | ||
| s.38 – part | Remit | ||
| 97. | Release in part | s.38 - part | Remit |
| 99. | Release in part | s.38 - part | Remit |
| 100. | Release in part | s.38 - part | Remit |
| 103. | Release in part | s.38 - part | Remit |
| 105. | Wholly exempt | s.38 - whole | Remit |
| 109. | Release in part | s.38 - part | Remit |
| 111. | Release in part | s.38 - part | Remit |
| 112. | Release in part | s.38 - part | Remit |
| 114. | Release in part | s.38 - part | Remit |
| 121. | Wholly exempt | s.38 - whole | Remit |
| 126. | Release in part | s.37(2)(b) - part | Affirm |
| s.38 – part | Remit | ||
| 127. | Release in part | s.38 - part | Remit |
| 129. | Release in part | s.37(1)(b) - part | Affirm |
| s.37(2)(b) - part | Affirm | ||
| s.38 – part | Remit | ||
| 131. | Release in part | s.38 - part | Remit |
| 137. | Release in part | s.38 - part | Remit |
| 144. | Release in part | s.37(1)(a) - part | Decision to delete the fourth and fifth bullet points from the penultimate page is set aside. Balance of decision affirmed. |
| s.37(1)(b) - part | Affirm | ||
| s.37(2)(b) - part | Affirm | ||
| s.38 – part | Remit | ||
| 145. | Release in part | s.38 - part | Remit |
| 147. | Wholly exempt | s.37(2)(b) - part | Affirm |
| s.38 – whole | Remit | ||
| 155. | Release in part | s.38 - part | Remit |
| 162. | Release in part | s.38 - part | Remit |
| 163. | Release in part | s.38 - part | Remit |
| 164. | Release in part | s.37(2)(b) - part | Affirm |
| s.38 – part | Remit | ||
| 166. | Release in part | s.37(1)(b) - part | Affirm |
| s.38 – part | Remit | ||
| 168. | Release in part | s.38 - part | Remit |
| 169. | Release in part | s.38 - part | Remit |
| 172. | Release in part | s.38 - part | Remit |
| 175. | Release in part | s.38 - part | Remit |
| 182. | Wholly exempt | s.37(1)(a) - whole | Affirm |
| s.38 – whole | Remit | ||
| 188. | Irrelevant to request | N/A | Affirm |
| 189. | Release in part | s.38 - part | Remit |
| 194. | Release in part | s.38 - part | Remit |
| 198. | Release in part | s.38 - part | Remit |
| 200. | Release in part | s.38 - part | Remit |
| 201. | Release in part | s.38 - part | Remit |
| 204. | Release in part | s.37(1)(b) - part | Affirm |
| s.37(2)(b) - part | Affirm | ||
| s.38 – part | Remit | ||
| 205. | Release in part | s.38 - part | Remit |
| 208. | Release in part | s.38 - part | Remit |
| 209. | Release in part | s.38 - part | Remit |
| 210. | Release in part | s.38 - part | Remit |
| 214. | Release in part | s.37(1)(b) - part | Affirm |
| s.37(2)(b) - part | Affirm | ||
| s.38 – part | Remit | ||
| 216. | Release in part | s.37(2)(b) - part | Affirm |
| s.38 – part | Remit | ||
| 218. | Release in part | s.37(1)(b) - part | Affirm |
| s.38 – part | Remit | ||
| 220. | Release in part | s.37(1)(a) - part | Affirm |
| s.38 – part | Remit | ||
| 221. | Release in part | s.38 - part | Remit |
| 222. | Release in part | s.38 - part | Remit |
| 224. | Release in part | s.37(1)(a) - part | Decision to delete the final paragraph from page 0294 and the first paragraph from page 0295, is set aside. Balance of decision affirmed. |
| s.37(1)(b) - part | Affirm | ||
| s.38 – part | Remit | ||
| 225. | Release in part | s.38 - part | Remit |
| 227. | Release in part | s.37(1)(a) - part | Affirm |
| s.38 – part | Remit | ||
| 228. | Release in part | s.38 - part | Remit |
| 229. | Release in part | s.38 - part | Remit |
| 230. | Release in part | s.37(1)(a) - part | Affirm |
| s.38 – part | Remit | ||
| 231. | Release in part | s.37(1)(a) - part | Affirm |
| s.37(1)(b) - part | Affirm | ||
| s.37(2)(b) - part | Affirm | ||
| s.38 - part | Remit | ||
| 232. | Release in part | s.37(1)(a) - part | Affirm |
| s.37(1)(b) - part | Affirm | ||
| s.37(2)(b) - part | Affirm | ||
| s.38 – part | Remit | ||
| 233. | Release in part | s.37(1)(b) - part | Affirm |
| s.38 – part | Remit | ||
| 234. | Irrelevant to request | N/A | Affirm |
| 235. | Wholly exempt | s.38 - whole | Remit |
| 236. | Irrelevant to request | N/A | Affirm |
| 241. | Irrelevant to request | N/A | Affirm |
| 243. | Release in part | s.37(1)(a) - part | Affirm |
| s.37(1)(b) - part | Affirm | ||
| s.38 – part | Remit |
SUPPLEMENTARY DOCUMENTS
| No. | Decision sought by Respondent | Exemptions claimed by Respondent | AAT Decision |
| S5. | Release in part | s.37(1)(b) - part | Affirm |
| s.38 – part | Remit | ||
| S10. | Release in part | s.38 - part | Remit |
| S18. | Wholly exempt | s.38 - whole | Remit |
| S20. | Wholly exempt | s.38 - whole | Remit |
| S21. | Wholly exempt | s.38 - whole | Remit |
| S22. | Wholly exempt | s.38 - whole | Remit |
| S23. | Release in part | s.38 - part | Remit |
| S24. | Release in part | s.38 - part | Remit |
| S25. | Wholly exempt | s.38 - whole | Remit |
| S26. | Release in part | s.37(1)(a) - part | Affirm |
| s.37(1)(b) - part | Affirm | ||
| s.38 – part | Remit | ||
| S29. | Release in part | s.37(1)(a) - part | Affirm |
| s.38 – part | Remit | ||
| S30. | Wholly exempt | s.38 - whole | Remit |
| S37. | Wholly exempt | s.38 - whole | Remit |
| S41. | Release in part | s.38 - part | Remit |
| S46. | Release in part | s.37(1)(b) - part | Affirm |
| s.38 – part | Remit | ||
| S47. | Release in part | s.37(1)(b) - part | Affirm |
| s.38 – part | Remit | ||
| S49. | Release in part | s.37(1)(b) - part | Affirm |
| s.38 – part | Remit | ||
| S54. | Release in part | s.37(1)(b) - part | Affirm |
| s.38 – part | Remit | ||
| S55. | Release in part | s.37(1)(b) - part | Affirm |
| s.38 – part | Remit | ||
| S57. | Release in part | s.37(1)(b) - part | Affirm |
| s.38 – part | Remit |
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
.................................[sgd].......................................
Associate to Senior Member A K Britton
Dated 5 June 2012
Date final submission received
5 April 2012
Date(s) of hearing 12-15 December 2011, 20 February 2012 and 5 April 2012 Counsel for the Applicant Mr N Williams, SC and Ms C Burnett Solicitors for the Applicant Ms G Lazanas/Mr J Balazs, Balazs Lazanas & Welch Counsel for the Respondent Mr R Beech-Jones SC Solicitors for the Respondent Mr R Baird, Clayton Utz
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