OJG Engineering Pty Ltd and Commissioner of Taxation - [2019] AATA 4293

OJG Engineering Pty Ltd and Commissioner of Taxation [2019] AATA 4293 (26 September 2019)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2019/0102
2019/0103

Re:OJG Engineering Pty Ltd
Sandra Stefanovich
APPLICANTS

AndCommissioner of Taxation
RESPONDENT

DECISION
Tribunal:Deputy President Boyle

Date:26 September 2019
Date of written reasons: 15 October 2019
Place:Perth

The Tribunal makes the following orders:
1)Pursuant to subsection 35(4) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) the publication or other disclosure of the information contained in the affidavit of Anand Gokani affirmed on 7 August 2019 is restricted to:
i)the Respondent and any officers of the Australian Taxation Office authorised by the Respondent to have access to the information;
ii) the legal representatives of the Respondent;
iii)a Member of the Tribunal as constituted in this proceeding or a member of staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; and
iv)a member of staff of the Tribunal’s recording and transcription provider in the course of the performance of his or her duties as a member of that staff.

2)Pursuant to subsection 37(1AE) of the AAT Act the Respondent is relieved of his obligation to give a copy of the affidavit of Anand Gokani affirmed on
7 August 2019 to the Applicant.

..........[sgd]..............................................................
Deputy President Boyle
CATCHWORDS
FREEDOM OF INFORMATION – confidentiality orders – s 35 Administrative Appeals Tribunal Act 1975 – s 25 Freedom of Information Act 1983 – neither confirm nor deny documents exist – not appropriate to grant applicants’ legal representatives access – procedural fairness – orders made
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 35, 35(2), 35(3), 35(4), 35(5), 37(1AE), 39
Freedom of Information Act 1983 (Cth) – ss 25, 25(1), 25(2), 37, 37(1), 58, 63, 63(1)(a)(ii), 63(2)(b), 64
CASES
Day v Collector of Customs [1995] FCA 1245
Diamond and Australian Federal Police [2018] AICmr 33
Dunn v Department of Defence (2004) 84 ALD 419
Farrell and the Australian Federal Police [2017] AICmr 113
Fitzgibbon v Turnbull [2017] FCA 968
McKnight and Australian Archives [1992] AATA 225

News Corporation Limited v National Companies and Securities Commission (1984)
5 FCR 88
Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 24
Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534
REASONS FOR DECISION
Deputy President Boyle
15 October 2019
THE PROCEEDINGS

These proceedings involve two applications by which the applicants seek review of the decision of the Australian Information Commissioner (IC) which affirmed the respondent’s decision to neither confirm nor deny the existence or non-existence of any document sought by the applicants.
BACKGROUND
By email dated 25 August 2017 (T3) the applicants, through their lawyer, made a request to the respondent for information under the Freedom of Information Act 1983 (Cth)
(FOI Act). The request sought:
All correspondence, including attachments, between the Australian Taxation Office (ATO) and Williams + Hughes Commercial and Litigation Lawyers

(or John Robertson or Steven Gledich) in relation to the taxation affairs of

Sandra Stefanovich and/or OJG Engineering Pty Ltd (ABN 91 082 134 147), including but not limited to any information provided in connection with (or prior to) the risk review and audit of Sandra Stefanovich and OJG Engineering Pty Ltd.
By decision dated 19 September 2017 (T6) the respondent advised:
Decision
Under section 25 of the FOI Act, I neither confirm nor deny the existence or non-existence of any documents sought in your FOI request dated 25 August 2017.
Section 25 permits an agency to give to an FOI applicant a notice that neither confirms nor denies the existence of a document in certain circumstances. After the consultation with the relevant ATO officers and consideration of the circumstances, I am of the view that the documents sought by you, if they existed, would be exempt under section 37(1) of the FOI Act.
(Original emphasis.)
By letter dated 19 October 2017 (T10) the applicants sought an internal review by the respondent of the decision dated 19 September 2017.
By decision dated 30 October 2017 (T12) the respondent affirmed the decision of

19 September 2017.
On 29 December 2017 the applicants lodged an application (T13) with the Office of the IC for the review of the respondent’s decision of 30 October 2017 affirming the decision of

19 September 2017. I note that that application lodged by the applicants for review by the IC identified the decision review of which was sought as being dated 30 November 2017 (T13, 83). The Annexure to the application to the IC for review, however, identified the relevant decision as being that dated 30 October 2017 referred to in [5] above. The IC’s decision (T2) identified the relevant decision as being the decision dated 30 October 2017 (T2, 14) and I have treated that as being the decision reviewed by the IC.
By decision dated 12 December 2018 (T2) the IC affirmed the respondent’s internal review decision of 30 October 2017. The IC’s decision set out the relevant legislation,

in particular ss 25 and 37 of the FOI Act, reviewed the cases that had been cited by the parties, in particular Farrell and the Australian Federal Police [2017] AICmr 113,

McKnight and Australian Archives
[1992] AATA 225 and Diamond and Australian Federal Police [2018] AICmr 33, summarised the submissions made by each of the parties and concluded at [54]-[57] as follows:
54. I have considered the submissions of the parties. I am satisfied that a document falling within the scope of the request, if it existed, would be of a kind to be exempt by virtue of one of the exemption provisions referred to in s25(1). With this conclusion in mind, it is therefore open to the ATO to apply s25(2) in its response to the applicant’s FOI request, as s 25(1) had been satisfied.
55.The FOI Guidelines explain that agencies and ministers should use s 25 only in exceptions circumstances. This guides the decision maker to further consider whether, in all the circumstances, the use of s 25 is justified.
56.Having regard to the submissions provided by the ATO, I accept that the use of s25 is justified in these circumstances.
57.I am satisfied that the ATO’s response in neither confirming nor denying the existence of documents sought is authorised pursuant to ss25 and 37(1) of the FOI Act.
On 8 January 2019 Ernst & Young lodged applications on behalf of each of the applicants for the review of the IC’s decision of 12 December 2018. They are the applications the subject of these proceedings.
The AAT proceedings
The respondent is represented by the Australian Government Solicitor. The applicants are now represented by Birchstone Tax Law, notices of change in representatives having been lodged with the Tribunal on 8 March 2019.
The following directions were made by consent on 25 June 2019:
1. On or before 19 July 2019 the Respondent to:
a. provide to the Tribunal and to the Applicants a statement of facts, issues and contentions and any evidence on which the Respondent intends to rely and in relation to which the Respondent does not seek orders under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act);
b. provide to the Tribunal any submission and evidence on which the Respondent intends to rely at the hearing of the matter and in relation to which the Respondent seeks orders under s 35 of the AAT Act; and
c.provide to the Tribunal and to the Applicant any application for orders under s 35 of the AAT Act and any submissions in support of that application.
2.In the event that the Respondent provides documents in accordance with paragraphs 1(b) and 1(c) the Applicants are to:
a. advise the Tribunal and the Respondent by 2 August 2019 whether the Applicants agree to or oppose the orders sought by the Respondent under s 35 of the AAT Act; and
b. in the event that the Applicants oppose the Respondent’s application for orders under s 35 of the AAT Act, provide to the Tribunal and to the Respondent any submissions in relation to that application by

23 August 2019.
3.In the event that the Applicants file submissions in accordance with paragraph 2(b), the Respondent has leave to provide to the Tribunal and to the Applicants any submissions in reply by 30 August 2019.
Further orders extending the times set out in the directions of 25 June 2019 were made by the Tribunal on 22 July 2019 and 9 September 2019.
On 2 August 2019 the respondent lodged with the Tribunal certain documents under cover of an email which was copied to the applicants’ lawyer. That email was as follows:
Dear Registry
Please see attached for filing, and in Mr Taborsky’s case service, copies of the following documents:
-    Respondent’s Statement of Facts, Issues and Contentions
-    Affidavit of Nigel Menzies
-    ASIC Historical Extract for OJG Engineering Pty Ltd
-    Extracts from the ATO Annual report 2018-2018 (this document is referred to in paragraph 13 of the respondent’s statement of fact, issues and contentions).
The respondent has also prepared a short affidavit over which he will seek confidentiality orders, along with submissions in support of those orders sought. Unfortunately, the deponent of the confidential affidavit is presently unavailable. We anticipate being in a position to file the confidential affidavit and related document by mid-next week and respectfully request a further extension of time until Wednesday 7 August 2019 to do so. I confirm that I have conferred with

Mr Taborsky prior to making this request, and Mr Taborsky consents to the request.
On 7 August 2019 the respondent lodged and served on the applicants’ lawyer submissions in support of the application for an order under s 35 of the

Administrative Appeals Tribunal Act
1975 (Cth) (AAT Act) in respect of the affidavit of

Mr Gokani.
In accordance with the directions of 25 June 2019 (as amended), on 16 August 2019

the applicants advised that they opposed the making of the confidentiality orders sought by the respondent.
On 16 September 2019 the applicants lodged and served submissions opposing the confidentiality orders sought by the respondent.
On 23 September 2019 reply submissions were lodged and served by the respondent.
On 26 September 2019 I made orders in the following terms:
1)Pursuant to subsection 35(4) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) the publication or other disclosure of the information contained in the affidavit of Anand Gokani affirmed on 7 August 2019 is restricted to:
i)the Respondent and any officers of the Australian Taxation Office authorised by the Respondent to have access to the information;
ii) the legal representatives of the Respondent;
iii)a Member of the Tribunal as constituted in this proceeding or a member of staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; and
iv)a member of staff of the Tribunal’s recording and transcription provider in the course of the performance of his or her duties as a member of that staff.
2)Pursuant to subsection 37(1AE) of the AAT Act the Respondent is relieved of his obligation to give a copy of the affidavit of Anand Gokani affirmed on

7 August 2019 to the Applicant.
On 2 October 2019 the applicants sought written reasons for the making of the orders on 29 September 2019. These are those written reasons.
LEGISLATIVE FRAMEWORK
Section 37 of the FOI Act relevantly provides:
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;
(b)     disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; or
(c)     endanger the life or physical safety of any person.
(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a)     prejudice the fair trial of a person or the impartial adjudication of a particular case;
(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
(c)     prejudice the maintenance or enforcement of lawful methods for the protection of public safety.
Section 25 of the FOI Act relevantly provides:
Information as to existence of certain documents
(1)Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence or non-existence of a document where information as to the existence or non-existence of that document, if included in a document of an agency, would cause the last-mentioned document to be:
(a) an exempt document by virtue of section 33 or subsection 37(1) or 45A(1); or
(b) an exempt document to the extent referred to in subsection 45A(2) or (3).
(2)If a request relates to a document that is, or if it existed would be, of a kind referred to in subsection (1), the agency or Minister dealing with the request may give notice in writing to the applicant that the agency or the Minister (as the case may be) neither confirms nor denies the existence, as a document of the agency or an official document of the Minister, of such a document but that, assuming the existence of such a document, it would be:
(a) an exempt document by virtue of section 33 or subsection 37(1) or 45A(1); or
(b) an exempt document to the extent referred to in subsection 45A(2) or (3).
Section 63 of the FOI Act is as follows:
Tribunal to ensure non-disclosure of certain matters
(1)In determining whether the Tribunal is satisfied that it is desirable to make an order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals Tribunal Act 1975 , the Tribunal must:
(a) have regard to:
(i) the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate; and
(ii) the necessity of avoiding the disclosure to the applicant of information of the kind referred to in subsection 25(1); and
(b) where the proceedings relate to a document that is claimed to be an exempt document under section 33--give particular weight to a submission made by an agency or a Minister that it is desirable to make the order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals Tribunal Act 1975 because disclosure of the document:
(i) would, or could reasonably be expected to, cause damage to the security, defence or international relations of the Commonwealth; or
(ii) would divulge information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
(2) Notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975:
(a) the Tribunal shall not, in its decision, or reasons for a decision,

in a matter arising under this Act, include any matter or information of a kind referred to in paragraph (1)(a); and
(b) the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind referred to in paragraph (1)(a).
Section 35 of the AAT Act, which is headed ‘Public hearings and orders for private hearings, non-publication and non-disclosure’, relevantly provides:
(4)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i)information that comprises evidence or information about evidence;
(ii) information lodged with or otherwise given to the Tribunal.
Section 39 of the AAT Act relevantly provides:
(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
THE PARTIES’ SUBMISSIONS
Respondent
The respondent’s submissions of 7 August 2019 were to the following effect:
(a)
The applicants seek production of documents relating to the respondent’s review and audit of the applicants’ tax affairs. The third parties specified in the FOI Act request by the applicants are a law firm, a lawyer who works for that law firm and an individual who is related to the applicant in matter 2019/0103

(second-named applicant).
(b)The decision under review relates to the respondent’s decision to refuse access under the FOI Act in reliance on s 25 of the FOI Act on the basis that giving information about the existence or non-existence of a document would cause the document itself to be exempt by virtue of s 37(1) of the FOI Act.
(c)The notice of the respondent’s decision was given in accordance with s 25(2) of the FOI Act with the respondent neither confirming nor denying the existence of documents which, if they existed, would be exempt under s 37(1) of the FOI Act.
(d)The affidavit of Mr Gokani, in relation to which the confidentiality order is sought, contains information which effectively discloses whether or not there are documents within the scope of the request. This is the information that the respondent sought to protect by making a decision under s 25 of the FOI Act.
(e)Section 63 of the FOI Act requires the Tribunal, when considering whether to make an order under s 35(2), (3) or (4) of the AAT Act, to have regard to the necessity of avoiding the disclosure to the applicant of information of the kind referred to in subsection 25(1) of the FOI Act.
(f)
If a confidentiality order is not made in relation to the affidavit of Mr Gokani,

the applicants will be privy to the very information that the ATO sought to protect by making the decision under s 25 of the FOI Act, namely, whether one or more of the persons named in the FOI request provided information to the ATO in relation to the taxation affairs of the applicants.
(g)
In relation to the issue of denial of procedural fairness, the respondent cites

Pochi and Minister for Immigration and Ethnic Affairs
(1979) 26 ALR 247 (Pochi) where Brennan J said at 273:
…an applicant’s interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. In R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 Lord Denning MR acknowledged that the public interest in confidentiality can be paramount. He said at 782: ‘When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice.’
In the present case, the public interest in protecting the confidentiality of the sources of information obtained to combat crime conflicted with the interests of the applicant in meeting the case made against him. The public interest prevailed, as it did in Hosenball’s case...
(h)Section 39 of the AAT Act is expressly subject to s 35 of that act.
(i)Section 63(2)(b) of the FOI Act expressly recognises that in Tribunal proceedings under the FOI Act, the Tribunal may receive evidence or hear argument in the absence of an applicant or his or her representative where it is necessary to prevent disclosure of certain types of information, including information of a kind referred to in s 25(1) of the FOI Act.
(j)The respondent cites News Corporation Limited v National Companies and Securities Commission (1984) 5 FCR 88 (News Corporation v NCSC) in which the applicant sought access to a schedule of documents which was said to disclose matters claimed to be exempt under the FOI Act. Part of the hearing before the Tribunal was held in the absence of the applicant and his representative. The applicant appealed to the Federal Court. One of the grounds raised alleged a denial of procedural fairness by refusing to grant access to the applicant’s counsel to the confidential schedule of documents.
(k)The Full Court by majority found that there was no denial of procedural fairness. Fox J said at 96-97:
Section 35(2) of the AAT Act is conditioned by the state of satisfaction of the Tribunal. It seems plain, and must have been the intent of s 63(1), that subs (2) applies, among other situations, to the maintenance of privacy in relation to an exempt document. To that end it can exercise the powers in that subsection (see also s 64(1) of the Act). The particular documents to which access was sought were the schedules produced by way of evidence before the Tribunal, for they contained a description of the documents, one by one. It is apparent from the evidence that to disclose the schedules would disclose the existence of the documents and their nature, would go a long way towards giving access to them (cf s 63(2) of the Act) and might well convey to the applicants, in relation to most documents, all they wished to know. It is not necessary to consider whether the schedules became exempt documents themselves (see s 25(1)).
I am of the view that s 35(2) provided a power which was available to be used, and am not satisfied that there was any error of law affecting its exercise. Section 39, which was relied on, is expressly made subject to s 35. The claim based on denial of natural justice must therefore fail.
(l)In that case Woodward J, at page 106, considered ss 58, 63 and 64 of the FOI Act and found that, in the light of those provisions, there was no scope for the principles of natural justice to apply. Even if the principles of natural justice did apply, his Honour found that there was no denial of procedural fairness as the applicant had a sufficient opportunity to make submissions as to why they should have access to the documents (p 106).
(m)The Court in News Corporation v NCSC also held that the power of the Tribunal in s 35 to prohibit or restrict disclosure to some or all of the parties of evidence given or documents lodged extends to representatives of parties. At pages 96-97 Fox J found:
…the submission of the applicant depended at several points in drawing a distinction between “party” and the legal representative of a party, when considering the statutory language, but in my opinion the distinction is not sustainable’
and at 103 Woodward J found:
… lawyers retained for a particular case should not be put in the invidious position of having to conceal important information from their clients, unless the proper trial of an action admits of no reasonable alternative.
(n)The same approach was applied in Fitzgibbon v Turnbull [2017] FCA 968 by Robertson J at [61].
(o)While s 64 of the FOI Act entails different considerations to s 63, the principle should not limited to review of documents provided under s 64 in circumstances where the authority cited in support of the proposition considered s 63 of the FOI Act.
(p)It is appropriate for the Tribunal to receive the evidence in Mr Gokani’s affidavit in the absence of the applicants and their representative in order to prevent disclosure of information of the kind referred to in s 25(1) of the FOI Act to the applicants: see s 63(2)(b) and Dunn and Department of Defence (2004) 84 ALD 419 (Dunn) at [100].
(q)The content of the affidavit of Mr Gokani is discrete and factual. It is not evidence of a type against which the applicants could adduce counter-evidence, because it is not within their knowledge or public knowledge. It is however information that assists the Tribunal to make its decision and the Tribunal should have that material before it.
(r)The applicants’ legal representatives do not require access to this affidavit in order to make submissions in this matter. The respondent has provided a detailed explanation in its statement of facts, issues and contentions about the reasons the decision under s 25 of the FOI Act is appropriate in this matter.
Applicants

The applicants’ submissions of 16 September 2019 were to the following effect:
(a)The affidavit should not be received into evidence in these proceedings, and therefore directions under s 35(4) of the AAT Act are not necessary. Accordingly, the respondent should not be permitted to rely upon the affidavit and it should be uplifted and returned to the respondent.
(b)Alternatively, if the affidavit is received into evidence and directions under s 35(4) of the AAT Act are made, then such directions should not be made on the terms proposed by the respondent. Rather, any directions should be made on terms that the applicants’ legal representatives be given access to the affidavit.
Onus on the respondent
(c)The onus is on the respondent to establish:
(i)that the affidavit is relevant to the Tribunal’s review of the underlying decision in these proceedings; and
(ii)the confidential nature (if applicable) of the affidavit; and
(iii)that the proposed confidentiality order in the precise terms sought by the respondent is necessary and appropriate; and
(iv)that the affidavit should not be disclosed to the applicants’ legal representatives (subject to an undertaking to maintain the confidentiality of the affidavit and its contents); and
(v)that it is appropriate for the hearing or part of the hearing of this proceeding to take place in the absence of the applicants and their legal representatives.
The affidavit is not relevant or necessary
(d)Ii is not clearly established why the Tribunal should receive the affidavit at all.
(e)The affidavit was not before the IC and is not relevant to the decision under review in these proceedings.
(f)The respondent submits that the affidavit:
(vi)contains information that “effectively discloses” whether or not there are documents within the scope of the FOI request;
(vii)discloses information revealing the existence or non-existence of documents within the scope of the FOI request;
However, this is inconsistent with the way in which the respondent has run its case in the review by the IC, and also in the decision by the respondent at first instance and affirmed on internal review, which was to refuse access to documents without confirming or denying the existence of documents within the scope of the FOI Act request, but indicating that, assuming such documents did exist, those documents would be exempt pursuant to s 37(1) of the FOI Act.
(g)The respondent’s submissions do not otherwise disclose the basis on which it is said (in para 21) that the affidavit contains “information that assists the Tribunal to make its decision”; and “the Tribunal should have that material before it”.
(h)The applicants submit that the affidavit is not required in order for the respondent to make submissions at the hearing of this proceeding, or for the Tribunal to make its decision, based upon the assumption that there are documents within the scope of the FOI request.
(i)Accordingly, the respondent should not be permitted to lead evidence which does in fact confirm whether such documents exist.
(j)In any event, by disclosing the existence of documents within the scope of the FOI Act request, the respondent’s conduct is inconsistent with the maintenance of (any) confidentiality over the contents of the Affidavit and its continued reliance upon s 25(1) of the FOI Act.
Denial of procedural fairness
(k)The proposed confidentiality order over the affidavit, that prohibits access to both the applicants and their legal representatives, would deny them procedural fairness in these proceedings.
(l)The respondent concedes that the making of the confidentiality order would “necessarily impact” the procedural fairness. The respondent’s submissions that:
(i)the making of the Confidentiality Order “will not amount to a denial of procedural fairness in this particular case”; and
(ii)“procedural fairness does not require that the applicant’s legal representative be granted access to the documents”,
are not made out by the respondent.
(m)The applicants refer to ss 39 and 35(5) of the AAT Act and that the usual default position is that evidence and contents of documents should be made available to all the parties and it is only when there are conflicting interests of:
(i)the “confidential nature (if applicable) of the information” (s 35(5)); or
(ii)
relevantly, by extension from s 63(1)(a)(ii) of the FOI Act,

“the necessity of avoiding the disclosure to the applicant of information of the kind referred to in subsection 25(1) of the FOI Act”
that the Tribunal must undertake a balancing exercise to determine whether directions under s 35(4) of the AAT Act are necessary and appropriate in the circumstances of the present case.
(The applicants note their position is that s 25(1) of the FOI Act does not apply to the facts in these proceedings).
(n)
The applicants refer to Dunn v Department of Defence (2004) 84 ALD 419

(at para 90):
The Confidentiality Order should not extend to the applicants’ legal representatives
(o)Section 25(1) of the FOI Act does not apply to the facts in these proceedings.
(p)Section 63(1)(a)(ii) of the FOI Act is concerned with the disclosure of information to the applicant. Accordingly, even if the Tribunal determines that it is necessary and desirable to make directions prohibiting disclosure of the affidavit to the applicants, it does not follow that it is required, or that it is desirable, to extend those directions to the applicants’ legal representatives.
(q)News Corporation v NCSC is not authority for the principle that any directions given under s 35(4) of the AAT Act must extend to the legal representatives of the parties in every case, or that the proposed confidentiality order should extend to the legal representatives of the applicants in the present case.
(r)News Corporation v NCSC can be distinguished on two grounds;
(i)the applicants in News Corporation v NCSC were subject to an ongoing investigation by the respondent and there was a reasonable expectation of prejudice to that investigation if the schedule of documents was disclosed to the applicants. There is no evidence that there is an ongoing investigation in the present matter.
(ii)undertakings offered by the applicants' counsel and his instructing solicitor in News Corporation v NCSC were that they would not act for the applicants in any later proceedings under the various Companies Codes. The applicants are not proposing that form of undertaking in these proceedings.
(s)
The Federal Court of Australia (Day v Collector of Customs [1995] FCA 1245 which referred to News Corporation v NCSC) and the Tribunal (Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534 where Davies J was sitting as President) held that the Tribunal does have the power to make directions under

s 35 of the AAT Act which grants access to documents in question to the applicant’s legal representatives while prohibiting access to the applicant itself.
(t)The applicants cite Beaumont J in News Corporation v NCSC at 121.
(u)
In Dunn, on which the respondent relies (see [24(p)] above), the Tribunal held

(at para 104) that it was appropriate for the applicant’s legal representatives to take part in a closed session of the Tribunal based on the undertaking given by the legal representatives to keep confidential the information given in the closed session.
(v)If the affidavit is to be admitted into evidence, then directions should be made on terms that the applicants’ legal representatives be given access to the affidavit on the condition that they undertake not to disclose the affidavit or its contents to any party not specified in the directions (including the applicants).
(w)In relation to the respondent’s submission that the content of the affidavit is “discrete and factual” and “is not evidence of a type against which the applicants could adduce counter-evidence”, that is not to the point. Even if the content of the affidavit is evidence that could not be directly challenged by the applicants (which is denied), both the respondent’s and the applicants’ legal representatives may invite the Tribunal to draw inferences or conclusions from that evidence and the applicants’ legal representatives should not be denied the ability to make submissions in that regard. Procedural fairness accordingly requires that the applicants (through their legal representatives) be given access to the affidavit and be able to make submissions on it.
CONSIDERATION
By their respective FOI Act requests, the applicants seek production of any documents falling into the categories described in [2] above. The respondent’s decision (see [3] above) under s 25 of the FOI Act was that it could neither confirm nor deny the existence of the documents sought as to do so would make that confirmation or denial come within the operation of s 37(1) of the FOI Act. That decision was affirmed by the IC.
The application presently before me is for confidentiality orders in respect of an affidavit lodged by the respondent. Obviously I have seen that affidavit. The difficulty that I face in setting out my reasons for making the confidentiality orders sought by the respondent is that I am constrained in what I can say, in particular by operation s 63 of the FOI Act, but also by common sense. The reasoning behind s 63 of the FOI Act is obvious and irresistible. Clearly if the decision being reviewed is one made under s 25(1) of the FOI Act, a decision based on the party refusing the request not being in a position to confirm or deny the existence of the documents sought, it would defeat the purpose of the substantial review if material that was lodged in the proceedings did exactly that,
either confirmed their existence or their non-existence.
The affidavit in question, as the respondent says in his submissions, contains information which effectively discloses whether or not there are documents within the scope of the FOI request. If that was all that the affidavit did, then the obvious question would be:
what is its purpose? If that were the case there would be some merit to the applicants’ argument that the affidavit should be excluded. What the affidavit does, however, is also gives some information about procedures of the ATO which does assist me in understanding the background. I am satisfied that the respondent’s characterisation of the information contained in the affidavit, namely that it is discrete and factual and is not evidence of a type against which the applicants could adduce counter-evidence, because it is not within their knowledge or public knowledge.
The applicants respond to that proposition by saying that even if that were the case,
they should have the opportunity to “invite the Tribunal to draw inferences or conclusions from that evidence”. I appreciate the sentiment of the applicants’ submission, however, having the benefit of knowing the contents of the affidavit, I am satisfied that the information in the affidavit is not of a nature that would be amenable to inferences or conclusions. It is much more prosaic.
Denial of procedural fairness
There are certain proceedings that come before the Tribunal which a party will not have access to everything that is put before the Tribunal. The law recognises that in some cases an applicant’s interest in a hearing fair to him can be over-ridden by another and superior interest (see Pochi as cited at [24(g)] above). That is a common occurrence in the Freedom of Information Division, the Social Services and Child Support Division and the Security Division. In fact in the vast majority of FOI matters the Tribunal,
and necessarily the respondent, have before them the documents the subject of the FOI request and the applicant will not. That does not mean that there is a denial of procedural fairness, it is simply an obvious necessity given the nature of the application.
The applicants point to s 39 of the AAT Act (see [23] and [25(m)] above). Section 39 of the AAT Act specifically makes the obligations set out in that section subject to s 35.
The relationship between those sections was considered in News Corporation v NCSC. Both parties made submissions in relation to that case with the applicants seeking to distinguish that case from the present case as set out in [25(r)] above. I do not accept that the matters identified by the applicants cause the principles set out in News Corporation v NCSC not to apply to the present case. The present position is as described by Fox J in the passage quoted at [24(k)] above:
…It is apparent from the evidence that to disclose the schedules would disclose the existence of the documents and their nature, would go a long way towards giving access to them (cf s 63(2) of the Act) and might well convey to the applicants, in relation to most documents, all they wished to know.
The Confidentiality Order should not extend to the applicants’ legal representatives
I am also satisfied, having the benefit of knowing the contents of the affidavit,

that procedural fairness does not require that the applicants’ legal representative be granted access to the documents if the applicant is denied access. Not only is it unnecessary in the present case for the applicants’ legal representatives to have access to the affidavit for them to be able to properly advise their clients or to make submissions on their behalf on the substantive applications, but given that the existence or non-existence of the documents sought under the FOI Act is the central issue in the proceedings, allowing the representatives access to the affidavit would place them,

not just an invidious position, but in an untenable one. As Woodward J noted in

News Corporation v NCSC
at 103:
…And in my view even lawyers retained for a particular case should not be put in the invidious position of having to conceal important information from their clients, unless the proper trial of an action admits of no reasonable alternative.
In the present case the information which the legal representatives would be required to withhold from their clients would not only be critical, it would be determinative of the substantial applications (see also Fitzgibbon v Turnbull [2017] FCA 968 per Robertson J held at [61]).
CONCLUSION
For the above reasons I made the orders sought by the respondent in the terms set out at [17] above.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.......[sgd].................................................................
Associate
Dated: 15 October 2019

Date(s) of hearing: 10 May 2019

Counsel for the Applicant: Mr D Taborsky

Solicitors for the Applicant: Birchstone Tax Law

Counsel for the Respondent: Ms A Ladhams

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	10 May 2019
Counsel for the Applicant:	Mr D Taborsky
Solicitors for the Applicant:	Birchstone Tax Law
Counsel for the Respondent:	Ms A Ladhams
Solicitors for the Respondent:	Australian Government Solicitor