Lovell, A.F. v Ajduk, G
[1991] FCA 156
•15 APRIL 1991
Re: AVON FRANCIS LOVELL
And: GEOFFREY AJDUK and JOHANNES JACOBSEN
No. WA G141 of 1990
FED No. 156
Administrative Law - Taxation
91 ATC 4358
21 ATR 1598
28 FCR 565
52 A Crim R 340
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J.(1)
CATCHWORDS
Administrative Law - judicial review - committal proceedings - magistrate's decision to commit accused - whether evidence to support the decision.
Taxation - meaning of taxation information - meaning of divulging taxation information - coded data.
Administrative Decisions (Judicial Review) Act, 1977, s.3
Crimes Act 1914, s.70
Freedom of Information Act 1982, ss.3, 38
Income Tax Assessment Act 1936, s.16; sub-ss.16(1), 16(1A), 16(2)
Justices Act 1902 (W.A.), s.106
Taxation Administration Act 1953, ss.2, 8XB; sub-ss.3C(2), 3C(3), 8XB(1), 8XB(2), 8XB(5), 8XB(6); para.8XB(2)(c)
Federal Commissioner of Taxation v. Swiss Aluminium Australia Ltd. (1986) 66 ALR 159
Forsyth v. Rodda (1989) 87 ALR 699
Kunakool v. Boys (1987) 77 ALR 435
Lamb v. Moss (1983) 49 ALR 533
Trustees Executors and Agency Co. Ltd. v. Reilley (1941) VLR 110
HEARING
PERTH
#DATE 15:4:1991
Counsel for the Applicant: J. Courtis
Solicitors for the Applicant: Claudio Russo Shaw
Counsel for the Second Respondent: H.D. Seymour
Solicitors for the Respondent: Commonwealth Director of
Public Prosecutions
ORDER
The decision of the first respondent to commit the applicant for trial be set aside.
The matter be remitted to the first respondent to be dealt with according to law.
The second respondent pay the applicant's costs of the application.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") for an order to review the decision of a stipendiary magistrate to commit the applicant for trial upon an offence under s.8XB of the Taxation Administration Act 1953.
The committal proceedings were conducted under the Justices Act 1902 (W.A.) ("the Justices Act").
It is not argued that the magistrate's decision to commit the applicant was other than a decision under an enactment within the meaning of s.3 of the ADJR Act. (See Lamb v. Moss (1983) 49 ALR 533 at pp 559-564.)
The complaint which gave rise to the preliminary hearing before the magistrate alleged that on, or about, 6 November 1989 the applicant:
"did, without authorization, divulge taxation information relating to another person, namely Donald Leslie Hancock, to other persons, such taxation information being disclosed to him in breach of a provision of a taxation law contrary to para.8XB(1)(b) of the Taxation Administration Act 1953."
Section 8XB of the Taxation Administration Act 1953 reads as follows:
"8XB. (1) Subject to subsection (3), a person shall not, except to the extent required or permitted by a taxation law or reasonably necessary in order to comply with an obligation imposed by a taxation law, directly or indirectly:
(a) make a record of any taxation information relating to another person; or
(b) divulge or communicate to another person any taxation information relating to a third person; being information disclosed to or obtained by the person in breach of a provision of a taxation law (including this provision). Penalty: $10,000 or imprisonment for 2 years, or both.
(2) Without limiting subsection (1), a
person shall be taken to have obtained taxation information in breach of a provision of a taxation law if:
(a) the information relates to the affairs of another person;
(b) the form or circumstances in which the information was obtained would have led a reasonable person to believe that:
(i) in the case of information contained in a document - the document had come from an office of the Commissioner or a Deputy Commissioner; or
(ii) in any other case - the information had come from the records of the Commissioner or from an officer; and
(c) the information was obtained by the person in circumstances that gave the person no reasonable cause to believe that the communication of the information to the person was authorised by a taxation law or by a person acting in accordance with such a law.
(3) Subsection (1) does not apply to the divulging or communicating of information to an officer (within the meaning of a taxation secrecy provision) for a purpose connected with the administration of a taxation law.
(4) Except where it is necessary to do so for the purpose of carrying into effect the provisions of a taxation law, a person shall not be required:
(a) to produce in court any document containing information in relation to which subsection (1) applies; or
(b) to divulge or communicate to a court a matter or thing with respect to information in relation to which subsection (1) applies.
(5) This section does not apply to a person in respect of information or a document if the person is an officer within the meaning of a taxation secrecy provision and that provision refers to the information or document.
(6) In this section:
'taxation information' means information with respect to a person's affairs, being information that is, or at any time has been, in the possession of the Commissioner; 'taxation secrecy provision' means a provision of a taxation law that purports to prohibit the communication, divulging or publication of information or the production of, or the publication of the contents of, a document."
In may be noted that s.8XB does not refer to an "authorization" to divulge taxation information and the words "without authorization" used in the complaint must be taken to be referring to the words of qualification contained in sub-s.8XB(1). The complaint alleges that the applicant "divulged" taxation information to other persons and not that the applicant "communicated" such information. For the purposes of s.8XB there may be little difference between the meaning of "divulge" or "communicate". According to the Oxford English Dictionary (Second Edition) "to communicate" is "to give to another as a partaker; to give a share of; to impart (information, knowledge, or the like); to impart or convey the knowledge of, inform a person of, tell; to impart by way of information to a society, the readers of a journal, or the like; to make a 'communication'; to hold intercourse or converse; to impart, transmit, or exchange thought or information (by speech, writing, or signs)" whereas "to divulge" has a broader meaning of "to spread abroad among the people, make common; to make publicly known, to publish abroad (a statement, etc.); to proclaim (a person, etc.) publicly; to publish (a book or treatise); to declare or tell openly (something private or secret); to disclose, reveal; to make common, impart generally".
The complaint alleges that taxation information was "disclosed to the applicant in breach of a taxation law" and does not allege that the applicant "obtained" that information in breach of such a law. Some factual situations will be covered by the meaning given to either of those expressions by s.8XB, but in other circumstances only one or the other of the expressions will be applicable. It is to be noted that the section itself draws a distinction by providing an expanded meaning for the expression "obtained taxation information in breach of a provision of a taxation law". Although sub-s.8XB(2) is not intended to limit the meaning of that expression as used in sub-s.8XB(1), it tends to confirm that the act of obtaining such information must be part of a breach of a provision of a taxation law. Paragraph 8XB(2)(c) refers to the communication of information as part of the circumstance of obtaining that information pointing to the involvement of a person or persons acting in breach of the provisions of a taxation law and suggesting that the expression "obtain" is not intended to extend to serendipitous discoveries of such information. It would be even more clear that an allegation of information being "disclosed to a person in breach of a provision of a taxation law" would require evidence of the circumstances of disclosure to show that such a breach had occurred and that proof of mere possession of such information would not be sufficient to support such an allegation.
The applicant appeared in person when the prosecution presented its case at the preliminary hearing. At the commencement of the hearing the applicant made certain formal admissions. The admissions were contained in two documents received as exhibits. The exhibits were not included in the papers placed before this Court. It does not appear that the applicant admitted that taxation information was disclosed to him in breach of a taxation law.
At the conclusion of the prosecution of the case the matter stood adjourned for several days and upon resumption of the hearing the applicant, then represented by counsel, made a submission of no case to answer. One of the grounds relied upon in that submission was the absence of any evidence that taxation information had been disclosed to the applicant in breach of a provision of a taxation law.
In his reasons for decision the learned magistrate referred to the provisions of sub-s.8XB(2) relating to the "obtaining" of taxation information and stated that there was evidence which, if accepted, could lead a properly instructed jury to conclude "that the criteria in that section have been established on the evidence".
With respect to his Worship I have difficulty in seeing the relevance of sub-s.8XB(2) to the issue of whether taxation information was disclosed to the applicant in breach of a provision of a taxation law, and I have been unable to identify any evidence which related to that issue. Indeed, in his response to the submission of no case, counsel for the prosecution conceded that there was no evidence as to how the relevant document had come into the possession of the applicant. As this issue was not addressed in the applicant's or respondent's submissions, perhaps no more need be said about it.
In opening the prosecution case, counsel made the following succinct summary of the issues to be determined by the magistrate:
"The prosecution case, simply put, will be that on 6 November 1989, the defendant held a press conference at the office of Messrs Claudio Russo and Shaw who were his solicitors, or at least one of his solicitors at that time. It will be alleged that at the press conference the defendant distributed a press release with a number of annexures to that release. One of the annexures, it will be alleged, will be a document that emanated from the Australian Taxation Office.
That document contained a small amount of information regarding the tax affairs of a particular taxpayer. The distribution of that document at the press conference gives rise to the present charge."
The document referred to was described as Document 10 in the hearing of the application. The prosecution called two journalists to give evide nce that they had attended a press conference conducted by the applicant and that they had received a folder of documents distributed at the conference. Neither journalist gave evidence of receipt of taxation information by the distribution of those documents.
The prosecution then adduced evidence from a clerk employed at the Australian Taxation Office conversant with the computer system used by that office to identify one of the documents distributed at the press conference as a photocopy of a printout from the computer system of the Australian Taxation Office printed on 29 July 1987. The witness identified it as an internally created document relating to the affairs of a taxpayer, Donald Leslie Hancock. The data printed out from the computer was mainly in the form of coded references. It was said that the purpose of the encoded data was to enable officers to locate the taxation returns of the taxpayer in the Taxation Office. The officer also stated that with his knowledge of the meaning of the code he was able to ascertain whether debit or credit assessments had been issued to the taxpayer for taxation years between 1983 and 1986. Another officer of the Australian Taxation Office was called to give evidence to similar effect. Counsel for the complainant submitted that it was sufficient for the prosecution to show that a document which had emanated from the Australian Taxation Office had been distributed by the applicant. Alternatively, it was submitted that evidence which revealed that the coded data contained information as to the nature of the assessments issued to the taxpayer would be sufficient to establish the prosecution case in respect of the alleged offence.
The magistrate rejected counsel's submission that the distribution of a document relating to a taxpayer, being a document originating from the possession of the Australian Taxation Office was in itself the divulging of taxation information. However, the learned magistrate accepted the submission that evidence as to the contents of the coded material relating to the nature of the assessments issued to the taxpayer was capable of being taxation information for the purpose of s.8XB if that evidence were accepted by a jury.
The applicant seeks to obtain an order to review the magistrate's decision to commit the applicant for trial on the ground that the decision involved an error of law in the finding that there was evidence capable of being accepted by a jury that taxation information had been divulged by the applicant.
It is well-known that in respect of decisions made at committal proceedings it will require exceptional circumstances before this Court will act to exercise the discretion it has to order the review of decisions made in such proceedings. (See Lamb v. Moss at p 564; Kunakool v. Boys (1987) 77 ALR 435 at p 445; Forsyth v. Rodda (1989) 87 ALR 699.)
However, the grounds of review in this matter raise discrete questions of law involving the construction of s.8XB of the Taxation Administration Act 1953 and the absence of evidence material to the charge. The latter ground in this particular case will not require an intricate consideration of complex material or a determination of the relative adequacy or inadequacy of the evidence adduced at the hearing. It is a short point closely tied to the question of construction.
The first question is what meaning is to be applied to the expression "taxation information" as used in s.8XB. Sub-section 8XB(6) defines the term by the application of two characteristics. Firstly, it is to be information with respect to a person's affairs and, secondly, it is to be information that is, or at any time has been, in the possession of the Commissioner of Taxation. Sub-section 8XB(5) makes it clear that the section is intended to apply to persons other than officers who are employees of the Commonwealth or the Australian Public Service to whom specific secrecy provisions apply under the taxation law. (See Taxation Administration Act 1953 s.2 "officer", "taxation law"; Income Tax Assessment Act 1936 sub-s.16(1) "officer".) Such specific provisions are to be found in sub-s.3C(2) and 3C(3) of the Taxation Administration Act 1953 and sub-s .16(2) of the Income Tax Assessment Act 1936.
It is also clear that the section does not extend to proscribe the mere publication of a document unless such publication amounts to the divulging or communication to another of taxation information relating to a third person. The section may be contrasted against the provisions of s.70 of the Crimes Act 1914 which makes it an offence for a Commonwealth officer to publish a document which comes into his or her possession by virtue of that person being a Commonwealth officer.
No doubt one of the objects of s.8XB is to provide more effective protection against the disclosure of information gathered in a sensitive area. Such protection may be regarded as necessary for the better administration of the revenue collecting activities of the Commonwealth but it is ancillary to specific taxation secrecy provisions.
Section 8XB was inserted in the Taxation Administration Act 1953 in 1988 and counsel were unaware of any judicial interpretation of its terms.
However, some assistance may be gathered from cases which have considered the extent to which the secrecy provisions of the Income Tax Assessment Act 1936 operate to prevent tax related information being disclosed under the Freedom of Information Act 1982 ("FOI Act"). Section 3 of the FOI Act states that the object of the Act is as follows:
"(1)...to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by -
(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(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.
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in sub-section (1) and that any discrestions (sic) conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information."
Section 38 of the FOI Act exempts a document from the operation of the FOI Act if it is a document containing information and an enactment applying specifically to information of that kind prohibits persons from disclosing that information. It has been held that the nature of the information referred to in sub-s.16(2) of the Income Tax Assessment Act is sufficiently specific for that enactment to raise the exemption referred to in s.38 of the FOI Act. (See Federal Commissioner of Taxation v. Swiss Aluminium Australia Ltd. (1986) 66 ALR 159.)
The relevant parts of s.16 are as follows:
"16(1) In this section, unless the contrary intention appears - 'officer' means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax; ...
(1A) For the purposes of this section, a person who, although not appointed or employed by the Commonwealth, performs services for the Commonwealth shall be taken to be employed by the Commonwealth.
(2) Subject to this section, an officer shall not either directly or indirectly, except in the performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of 'officer' in sub-section (1)."
The information referred to in s.16 is that respecting the affairs of a person disclosed or obtained under the provisions of the Income Tax Assessment Act 1936. The information referred to in s.8XB of the Taxation Administration Act 1953 is that with respect to a person's affairs that is, or at any time has been, in the possession of the Commissioner of Taxation. Although the expression "with respect to" may be of wi de meaning (see Trustees Executors and Agency Co. Ltd. v. Reilley (1941) VLR 110 at p 111) the word "affairs" has a particular relevance to activities or interests. According to The Macquarie Dictionary (Revised Edition 1985) the definition of the word includes "anything done or to be done; that which requires action or effort; business; concern" and in the plural relates to "matters of interest or concern; particular doings or interests". In the The Oxford English Dictionary (Second Edition) "affairs" is said to have the meaning of "ordinary business or pursuits of life, transactions between man and man; commercial or professional business; public business, transactions or matters concerning men or nations collectively".
It may be that some information in the possession of the Commissioner in respect of a taxpayer may not be information in respect of a person's affairs and information that is a matter of common knowledge or is freely available to the public may raise the question whether such information may be said to be, or have been, in the possession of the Commissioner within the meaning of sub-s.8XB(6).
After having due regard to those issues, the question for the learned magistrate was whether any part of the contents of Document 10 may be regarded by a jury as taxation information within the meaning of s.8XB of the Taxation Administration Act.
Perusal of the document shows it to be incapable of conveying any information to an untutored eye with the exception of the following:
"Hancock Donald Leslie Mr
C/o Mr L.W. Bandy
PO Box 10
Victoria Park 6100
Last Rtn Ldg 86"
Mr Bandy's occupation is not described but the letters "Tax Ag" do appear in the printed line above the taxpayer's name and address.
The remainder of the material contained in the document was expressed in a code prepared by, and for, the Australian Taxation Office. There is no evidence that any knowledge of the meaning of the code was held by either of the parties to whom the applicant delivered the document. There was no suggestion that any part of the code is known to the public.
It is part of the ordinary meaning of the word "divulge" as used in s.8XB that the act of divulging involves the exposure of information. The mere delivery of a document containing statements prepared by the Australian Taxation Office in code form would not constitute the divulging of information. The disclosure of statements in code would not be a divulging of information unless further disclosure of the meaning of the code was made by an officer of the Australian Taxation Office in breach of a taxation law.
The case presented at the preliminary hearing was not that the applicant had divulged information as to the taxpayer's affairs which had been disclosed to the applicant by the revelation of the meaning of the coded data in breach of a taxation secrecy provision. The simple case against the applicant was that the document distributed by the applicant contained coded data which if decoded would disclose information as to the affairs of the taxpayer in the possession of the Commissioner.
Counsel for the respondent presented his argument most forcefully by way of an analogy, to wit the delivery to a foreign power of top secret and coded data in respect of a matter of national security. Counsel argued that a lack of knowledge of the actual contents or the meaning of terms used in such a document on the part of the person receiving it would not mean that the document or what was contained in it had not been divulged.
But the proposition contained in that analogy draws upon concepts more pertinent to conduct involving a breach of s.70 of the Crimes Act or an offence of treason and it really begs the question to be answered.
The nature of the relevant question in the present case is to be identified from the content and context of the pertinent statutory provisions. It is apparent that s.8XB is intended to provide a second line of protection for sensitive material in the possession of the Commissioner of Taxation and is concerned with the further communication or divulging of information that has been unlawfully obtained or disclosed to another person. The mere delivery of a document by that person to a person unable to extract any information from the document would not meet that requirement.
The learned magistrate's decision to commit the applicant for trial was not founded upon a consideration of what information, if any, was actually divulged by the applicant but upon evidence of what could have been divulged by the applicant if he had knowledge of and had divulged the meaning of the coded material. In reaching that decision his Worship did not consider the sufficiency of the evidence I have referred to above. A jury would be entitled to consider whether the information relating to the lodgement of a return and the identification of the taxpayer's address for tax purposes was information with respect to Mr Hancock's affairs having the character of taxation information within the meaning of the Act.
However, pursuant to s.106 of the Justices Act, it would be a matter for the magistrate conducting the preliminary hearing to determine whether that evidence was sufficient to put the applicant upon his trial for the indictable offence charged. It cannot be said that if the learned magistrate had given due consideration to the relevant evidence he would have concluded that it was sufficient to put the applicant upon trial for the alleged offence, and it may be implicit in his Worship's reasons that he regarded such evidence as insufficient.
Accordingly, the decision to commit the applicant for trial should be set aside and the matter returned to the learned magistrate for further consideration in accordance with these reasons.
0
2
0