PRATT CONSOLIDATED HOLDINGS PTY LTD and COMMISSIONER OF TAXATION
[2011] AATA 907
•16 December 2011
CATCHWORDS – FREEDOM OF INFORMATION – internal working documents - documents setting out possible settlement scenarios – whether access contrary to the public interest – public policy underlying encouragement of settlement of disputes without litigation – exempt.
FREEDOM OF INFORMATION – secrecy provisions – meaning of “disclosure” – applicant’s knowledge of documents or information irrelevant – a de-registered company can be an “entity”.
FREEDOM OF INFORMATION – secrecy provisions – whether excluded from relevant provision as already available to the public – regard to be had to all relevant material including legislative provisions and factual background bearing in mind that the decision-maker carries a burden of proof – decision set aside in part.
FREEDOM OF INFORMATION – secrecy provisions – whether excluded from relevant provision as decision-maker under a duty to disclose – identification of duties and when exist – inter-relationship of ss 38(1) and (1A) – decision affirmed.
FREEDOM OF INFORMATION – deletion of irrelevant material – what is “possible” and “reasonably practicable” – decision affirmed.
WORDS AND PHRASES – “disclosure”, “entity”.
Acts Interpretation Act 1901 s 8
Administrative Appeals Tribunal Act 1975
Archives Act 1982
Australian War Memorial Act 1980
Contracts Review Act 1980 (NSW)
Corporations Act 2001 ss 118, 269(1), 601AD(1), 601AH(2), 1274(2) and 1274(10)
Corporations (Fees) Act 2001 s 5
Criminal Records Act 1991 (NSW) s 13
Customs Act 1901 s 234(1)(b)
Evidence Act 1995 ss 131, 138(1)(a)
Fair Credit Reports Act 1974 (SA)
Financial Management and Accountability Act 1997 s 5
Financial Services and Markets Act 2000 ss 348, 349
Freedom of Information Act 1966 (USA)
Freedom of Information Act 1982 ss 3(1), 4(1), 8, 9(1)(a), 11(1)(a), 11(2), 12, 15, 22, 26, 32, 36, 38, 41, 43, 61, Sch 3
Freedom of Information Amendment Act 1991 ss 33, 38(1A)
Freedom of Information Amendment (Reform) Act 2010 s 3 and item 28 of Part 2 of Sch 3
Freedom of Information Act 1992 (Vic) ss 28, 29A, 31(3), 33, 50(4)
Fuel Tax (Consequential and Transitional Provisions) Act 2006 ss 2, 3 and Sch 5
Income Tax Assessment Act 1936 ss 16(2), 170BB, 263, 264, 267
Income Tax Assessment Act 1997 ss 1-7, 330-A, 330-C, 330-J, 330-15(2), 330-95, 330-235, 330-495, 703-10, 995-1(1), 960-100(1)
Mineral Resources Act 1989 (Vic) s 147
Mineral Resources Development (Sustainable Development) Act 2006 (Vic)
National Health Act 1953 s 135A
Taxation Administration Act 1953 ss 3A, 3AA(2), 4, 4A(1), 8C, 14ZAA(2), 14ZAAA, 14ZAF, 14ZAI, 14ZAH, 14ZAJ, 14ZAM, 14ZAQ, 14ZAR(1), 14ZAS, 14ZAU, 14ZZO and Sch 1, 355-25, 355-30, 355-35, 355-45, 355-55, 355-155, 355-265, 357-60(1), 357-65, 357-70(1), 357-70(2), 357-110(2), 359-15, 359-20(2), 359-60, 359-65(1), 359-65(2)
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Taxation Laws Amendment Act (No 3) 2003
Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010 ss 2, 3, 123(3) and Sch 1, Sch 2
Corporations (Fees) Regulations 2001 Sch 1
Corporations Regulations 2001 r 9.1.01
Financial Management and Accountability Regulations 1997 r 5(1) and Sch 1, Item 127
Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281
Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1
Collins v Parker Unreported, SC (NSW), 11 May 1984
Commonwealth of Australia v Lyon (1979) 24 ALR 300
Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529
Deputy Commissioner of Taxation v Australian Securities and Investments Commission [2011] FCA 203
Director of Public Prosecutions v Smith [1991] 1 VR 63; (1991) 100 FLR 6
Dun & Bradstreet (Australia) Pty Ltd v Lyle (1977) 15 SASR 297
Ellison v Vukicevic (1986) 7 NSWLR 104
Environment Protection Agency v Mink 410 U.S. 73 (1973)
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 98 ATC 4768
Foster v Federal Commissioner of Taxation (1951) 82 CLR 606
Harris v Australian Broadcasting Corporation and others (1983) 50 ALR 551; 5 ALD 545
Harris v Australian Broadcasting Corporation (No.2) [1983] FCA 281; (1983) 50 ALR 567; 78 FLR 264; 5 ALD 560
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; 106 ALR 611
Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512
Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 170; (2005) 143 FCR 461; 218 ALR 384; 85 ALD 24
Kavvadias v Commonwealth Ombudsman (No.2) (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198
Kelly v JRA Ltd (1990) 92 ALR 651
King v The Queen [2003] HCA 42; (2003) 215 CLR 150; 199 ALR 568
London Artists Ltd v Littler [1969] 2 QB 375
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70
McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516
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O’Sullivan v Farrer (1989) 168 CLR 210
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DECISION AND REASONS FOR DECISION [2011] AATA 907
ADMINISTRATIVE APPEALS TRIBUNAL )
) 5080 and 5419 of 2010
GENERAL ADMINISTRATIVE DIVISION )
Re:PRATT CONSOLIDATED HOLDINGS PTY LTD
Applicant
And:COMMISSIONER OF TAXATION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 16 December 2011
Decision:The Tribunal decides:
(1)to affirm that part of the decision of the respondent dated 2 December 2010 affirming its earlier decision dated 28 September 2008 except in so far as it claims exemption either in whole or in part for the documents identified in the Schedule of Documents dated 1 December 2011 equating to Documents 519, 541, 78, 435, 437, 438, 440, 445, 446, 447, 508 and 509 as identified in the Schedule of Documents dated 24 November 2011; and
(2)in relation to that part of the decision of the respondent dated 2 December 2010 affirming its earlier decision dated 28 September 2008 that claims exemption either in whole or in part for the documents identified in the Schedule of Documents dated 1 December 2011 equating to Documents 519, 541, 78, 435, 437, 438, 440, 445, 446, 447, 508 and 509 as identified in the Schedule of Documents dated 24 November 2011, to:
(a)set aside that part of the decision; and
(b)substitute a decision that:
(i)Document 519 is excluded from access under s 12 of the Freedom of Information Act 1982; and
(ii)Documents 541, 78, 435, 437, 438, 440, 445, 446, 447, 508 and 509 are not exempt under s 38 of the Freedom of Information Act 1982.
S A Forgie
Deputy President
REASONS FOR DECISION*
The documents requested by Pratt Consolidated Holdings Pty Ltd (Pratt Holdings) under the Freedom of Information Act 1982 (FOI Act) relate to a mining joint venture in 1998 between Lonsdale Mineral Exploration No 1 Pty Ltd (LME1) and Lachlan Resources NL (Lachlan) (Joint Venture) and arranged by Allco Finance Group Limited (Allco), through its subsidiary, Minex Financial Services Pty Ltd.[1] The Australian Taxation Office (ATO) has claimed that almost 700 documents are exempt, either in whole or in part, from access under the FOI Act. I have decided that, except in relation to 12 documents, the ATO has correctly claimed exemption. In relation to Document 519, I have decided that the ATO has properly refused access but for a different reason. It is not exempt under s 38 as the ATO decided but the ATO did properly refuse access to it as it is open to public access in accordance with another enactment. Therefore, access is excluded under s 12 of the FOI Act. I have decided that Documents 541, 78, 435, 437, 438, 440, 445, 446, 447, 508 and 509 are not exempt under s 38 as the ATO has claimed. Each is an ASIC form that either appears to have been completed (and may or may not have been lodged in that form) or is incomplete. On the evidence, I am not satisfied that the information in the documents is prohibited from disclosure under s 355-25 in Schedule 1 of the TA Act, and so exempt under s 38 of the FOI Act, because I am not satisfied that the ATO has established that a decision to that effect is justified. I am not satisfied because it has not satisfied me that the exception found in s 355-45 to the prohibition in s 355-25 is not applicable in the particular circumstances of information in ASIC Forms that are likely to have been lodged.
FORMAT OF REASONS
For ease of reading, I have set out the background in the body of the reasons and considered the particular exemptions and further detail in Attachments as below:
| Paragraph | Attachment | Subject |
| 3 – 11 | Background | |
| 12 | The requests | |
| 13 – 14 | Documents in dispute | |
| 15 – 16 | Why Pratt Holdings has requested the documents | |
| 17 – 18 | Legislative background | |
| 19 – 20 | Attachment A | The requests |
| 21 – 22 | Attachment B | Documents identified as coming within the requests |
| 23 – 34 | Attachment C | Legislative provisions relating to Private Ruling Part IVAA of the Taxation Administration Act 1953 (TA Act) Provisions of Schedule 1 of TA Act applying to Private Ruling |
| 35 – 91 35-80 81 – 91 | Attachment D | Exemption claimed under s 36: internal working documents (i) law (ii) the documents |
| 92 – 184 92 – 164 165 – 184 | Attachment E | Exemption claimed under s 38: secrecy provision (i) law (ii) the documents |
| 185 – 199 185 – 197 198 – 199 | Attachment F | Irrelevant material under s 22 (i) law (ii) the documents |
| 200 | Attachment G | Decision |
BACKGROUND
The Joint Venture
For the purposes of this matter, I note that the Joint Venture involved them in carrying out exploration or prospecting for minerals on four tenements controlled by Lachlan. It is not necessary for me to consider whether LME1 and Lachlan reached any further agreement regarding mining on those tenements. At the time, LME1 was a wholly owned subsidiary of another company in a group of companies; Visy Investments Pty Ltd (VI). Much later, that group was to become a consolidated group of companies headed by Pratt Holdings. I will refer to it as the Pratt Group.
On 27 January 1998, three companies asked the Commissioner of Taxation (Commissioner) for a Private Ruling under the Taxation Administration Act 1953 (TA Act) relating to the taxation implications of the Joint Venture.[2] Those three companies were LME1, Lachlan and Archaean Gold NL (Archaean), which was a wholly owned subsidiary of Lachlan. On 26 February 1998, the Commissioner issued a Private Ruling that, on the information provided, the exploration and capital expenditure incurred by LME1 in connection with the Joint Venture would be deductible and that LME1 might be entitled to claim a balancing adjustment deduction on disposal of the tenements under subdivision 330-J of the Income Tax Assessment Act 1997 (ITAA97).
[2] The provisions of the TA Act applying to Private Rulings in 1998 are set out in Attachment C.
On 10 March 1998, LME1 and Lachlan executed the Joint Venture agreements. For an acquisition price of $19.6m, Lachlan agreed to provide LME1 with a participating interest in the four tenements. LME1 treated some $18.5m of its acquisition price as allowable capital expenditure. Under a Put and Call Option Deed, LME1 had an option to require Archaean to acquire its interest in the tenements under certain circumstances. On 14 May 1999, LME1 exercised its option.
LME1 claimed deductions in respect of losses it had incurred in respect of the 1998 and 1999 tax years. In particular, it claimed the loss it incurred on disposing its interest in the tenements as a balancing adjustment deduction. The loss was the difference between the capital proceeds on the transfer and the undeducted allowable capital expenditure. Tax losses of $1,912,747 and $21,504,589 were transferred to nine other wholly owned companies in the Pratt Group (the group of nine) in the 1998 and 1999 years respectively. The Commissioner allowed deductions in respect of those losses.
On 20 July 1999, Lachlan acquired all but one of the ordinary shares VI held in LME1. It acquired the last share in May 2000. On 18 February 2002, LME1 was deregistered.
The Commissioner’s investigation of Allco exploration joint ventures
Twelve days earlier, on 6 February 2002, the Commissioner commenced its investigation of Allco exploration joint ventures including that it had arranged between LME1 and Lachlan. Between 2003 and 2006, the Commissioner audited LME1’s involvement in the Joint Venture. In doing so, it conducted a number of access visits under s 267 of ITAA36 and sought information under s 264 from, among others, the participants in the Joint Venture.
The ATO issued a Position Paper to Lachlan on 29 June 2006. In that paper, the ATO took the position that LME1 was not entitled to a balancing adjustment deduction. The Position Paper made no reference to the Private Ruling. On 5 September 2006, the ATO sent Lachlan a copy of a letter dated 29 June 2006, which had not accompanied the Position Paper as intended. In essence, the letter told Lachlan that the Private Ruling was not binding because it was issued on the assumption that LME1 would carry on a mining business but that it had not done so.
The Commissioner conducted an audit between 2002 and 2006. As a result of the audit, he issued assessments for the 1999 tax year to each of the companies in the Pratt Group to whom LME1’s tax losses had been transferred. He took the view initially that LME1 did not satisfy the tests set out in the table at s 330-15(2) of ITAA97. Therefore, it was not entitled to a deduction in respect of the exploration expenditure under subdivision 330-A, a deduction for capital expenditure under subdivision 330-C or any balancing adjustment deduction under subdivision 330-J. After discussions between the ATO and Pratt Holdings on 24 August 2007, the Commissioner revised his view and decided to allow the claims for deduction for exploration expenditure. He maintained his view that LME1 was not entitled to a balancing adjustment deduction under subdivision 330-J. On 18 February 2008, the Commissioner issued assessments to the group of nine to give effect to the conclusion he had reached.
Each of the relevant companies in the Pratt Group lodged Objections on 21 April 2008 contending that the Joint Venture had been entered and carried out in the way described in the application for a Private Ruling by LME1 and its joint venturers. The Commissioner has since made Objection Decisions disallowing the Objections.
THE REQUESTS
I have set out the requests made by Pratt Holdings in Attachment A. In summary, it requested access to documents relating to:
(1)the Private Ruling made on the application by LME1 and its joint venturers; and
(2)the views of the ATO concerning the operation and/or application of Division 330 as it appeared in the ITAA97 and the amendments to that Division introduced by the Taxation Laws Amendment Act (No 3) 2003.
DOCUMENTS IN DISPUTE
The ATO has grouped the documents it has identified as coming within the scope of the two requests and which remain in dispute, either in whole or in part, between the parties. They are set out in the affidavits of Mr Henry Bock sworn on
7 and 8 July 2011. I have examined the documents, which have been submitted, and agree with Mr Bock’s description and classification. It is set out in more detail in Attachment B but, in summary, at the time the hearing commenced[3] was:[3] During the course of the hearing, the parties agreed that Document 590 was no longer in dispute and the Documents 17 and 19 were to be released in full. Further parts of Documents 565 and 675 were to be released as not exempt.
(1)Proceedings No 5419 of 2010
689 documents concerning the ATO’s audit, investigation and consideration of the deductibility of the losses transferred from LME1 to the group of nine; and
(2)Proceedings No 5080 of 2010
31 documents concerning the Private Ruling issued to LME1 on
23 February 1998.
Sixteen documents come within both sets of proceedings. They are identified in Mr Shaw’s affidavit dated 30 June 2011[4] but it is not necessary to identify them further.
[4] Exhibit 6 at [18]
WHY PRATT HOLDINGS HAS REQUESTED THE DOCUMENTS
Section 11(2) of the FOI Act makes it clear that any reasons a person gives for seeking access to documents do not affect that person’s right of access. That person’s reasons are one thing and his, her or its identity is another. Identity will be relevant in deciding whether certain exemption provisions apply. So, for example, identity is important in the context of the exemption provided for in s 41 of the FOI Act. The exemption protecting personal information from unreasonable disclosure does not apply by reason only of its containing matter relating to the person requesting it. The same is true for personal information in documents whose disclosure would otherwise be subject to a secrecy provision of the sort referred to in s 38 and to business affairs information under s 43. In this case, the reasons are relevant in considering s 38 of the FOI Act.
Mr Janes, who is a Director of the Pratt Group’s tax adviser, Deloitte Touche Tohmatsu Ltd (Deloitte), gave evidence that the Pratt Group had been at a substantial disadvantage in pressing its case that the Objections should be allowed. That followed from the group’s view that the ATO had not fully explained its reasons for reaching its view that denying the balancing adjustment deduction to LME1, and so to the group of nine, is consistent with the Private Ruling. Having noted that the group of nine will carry the onus of proof under s 14ZZO of the TA Act, Mr Janes contended that:
(1)it is a denial of natural justice to withhold from the Pratt Group documents that are likely to assist it to understand how the ATO reached its conclusions and made its decisions;
(2)the ATO has not given it contemporaneous documents supporting its conclusions;
(3)the Pratt Group needs to be given access to all of the documents and files created by the officer in the ATO who considered LME1’s application for a Private Ruling so that it can see whether the Private Ruling was unfavourable, partly favourable or wholly favourable to LME1; and
(4)the Pratt Group needs to have the same documents and information as has been considered by the ATO so that it can discharge its onus of establishing that the assessments issued by the Commissioner are excessive.
LEGISLATIVE BACKGROUND
In so far as it applies to a document of an agency,[5] s 11(1)(a) of the FOI Act provides that “Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to … a document of an agency, other than an exempt document …”. In so far as it is relevant in this case, an “exempt document” is “a document which, by virtue of a provision of Part IV, is an exempt document”.[6] Part IV sets out a number of provisions exempting documents from disclosure. In interpreting those provisions, regard must be had to s 32. It provides that they are not to be construed as limited in their scope or operation in any way by any other provision of Part IV. Furthermore, they are not to be construed as not applying to a particular document because another provision of Part IV also applies to that document. Only two of the provisions in Part IV are in issue in this case: ss 36 and 38. Section 36 exempts documents commonly referred to as internal working documents. Section 36 exempts documents to which secrecy provisions of other enactments apply.
[5] A document in the possession of the ATO is a “document of an agency” whether created in the ATO or received in it: FOI Act, s 4(1). The ATO is an “agency” because it is a “prescribed authority”. It is a prescribed authority because it is “… an unincorporated body, established for a public purpose by, or in accordance with the provisions of an enactment …”: FOI Act, s 4(1). “An unincorporated body is a body which, of itself, has no separate legal existence apart from its members. It is merely a group or collection of people who have come together for particular shared aims or purposes.” (R v Abdul Nacer Benbrika at [2009] VSC 142 at [104] per Bongiorno J). Section 4 of the Taxation Administration Act 1953 (TA Act) provides that there shall be a Commissioner of Taxation and three Second Commissioners of Taxation appointed by the Governor-General. Section 4A(1) provides that the staff necessary to assist the Commissioner are to be persons engaged under the Public Service Act 1999. Together, the Commissioner and the staff form an unincorporated body. It can be said that the body has been established for a public purpose being the administration of taxation legislation (e.g. Income Tax Assessment Act 1997, s 1-7 and TA Act, s 3A). The next question is whether that unincorporated body has been established by, or in accordance with, the provisions of an enactment. It has been established in the sense that it has been “set up” by s 4A(1) and so by an enactment. That this is so is supported by the fact that the body is recognised in s 4A(2) of the TA Act when it provides that “For the purposes of the Public Service Act 1999: (a) the Commissioner and the APS employees assisting the Commissioner together constitute a Statutory Agency; and (b) the Commissioner is the Head of that Statutory Agency.” It is further supported by the Financial Management and Accountability Act 1997 (FMA Act). That legislation applies to a “prescribed agency”, which is defined in s 5 to mean “… a body, organisation or group of persons prescribed by the regulations for the purposes of this definition.” Regulation 5(1) of the Financial Management and Accountability Regulations 1997 (FMA Regulations) provides that, for the definition in s 5, “… the combination of: (a) a body, organisation or group mentioned in Schedule 1; and (b) any other persons who perform financial tasks in relation to a function of that body, organisation or group; is prescribed.” Item 127 in Schedule 1 to the FMA Regulations prescribes the Commissioner, Second Commissioners and APS staff assisting the Commissioner as a prescribed body.
[6] FOI Act, s 4(1)
Since Pratt Holdings made its requests, the FOI Act has been significantly amended by the Freedom of Information Amendment (Reform) Act 2010[7] (FOI Amendment Act). Although the amendments have not made any significant alteration to s 38 so far as this case is concerned, they have repealed s 36 and substituted an alternative regime in relation to documents to which it previously related. The amendments apply, however, only in relation to requests for access made under s 15 of the FOI Act and received on or after 1 November 2010. That is the effect of section 3 and item 28 of Part 2 of Schedule 3 of the FOI Amendment Act. Therefore, I have reviewed the decisions made by on the basis of the exemption provisions as they applied before their amendment.
[7] Act No. 51 of 2010
ATTACHMENT A
THE REQUESTS
The first request
In its first request dated 29 April 2010 addressed to the ATO,[8] Pratt Holdings requested access to three groups of documents. In summary, they are:
[8] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 in proceedings No. 5080 of 2010 (5080T documents) at 28
(1)the records of meetings of the Large Business and Internationals Mining and Petroleum Industry Specialist Cell from 1 January 1996 to 31 December 2010 relating to:
(a)the operation or application of Division 330 of the Income Tax Assessment Act 1997 (ITAA97) both before and after it was amended by the Taxation Laws Amendment Act (No 3) 2000 (TLAA);
(b)the impact of the judgment of the Full Court of the Federal Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation[9] on the operation or application of Division 330 before its amendment by TLAA;
(c)the implementation of the amendments to s 330-95 made by TLAA; and
(d)the operation or application of the former Division 330 of ITAA97 and/or Part IVA of the Income Tax Assessment Act 1936 to the exploration joint venture arrangements marketed from late 1996 to early 2000;
(2)drafting instructions:
(a)giving rise to, or otherwise related to, the measures announced in the Treasurer’s Media Release No 120 dated 7 December 1998;
(b)relating to amendments made to s 330-495 of ITAA97 by TLAA; and
(c)the explanatory memorandum to Schedule 5 to TLAA.
[9] (1998) 98 ATC 4768
The second request
Pratt Holdings’ second request was dated 18 August 2010. It requested:
“All documents relating to the ATO’s audit, investigation and consideration of the deductibility of the losses transferred to 9 entities related to the Pratt Consolidated Holdings Pty Ltd (‘Transferees’) by Lonsdale Mineral Exploration No 1 Pty Ltd (‘LME1) in the mining joint venture with Lachlan Resources NL (‘Joint Venture’), including but not limited to, all documents (including emails, correspondence, notes, memoranda, reports, opinions, and where applicable any drafts of same) relating to:
∙the audit of the Joint Venture;
∙the issue of the position paper sent to Lachlan Resources NL under cover of a letter by Graeme Sutton dated 29 June 2006 (which reached conclusions on the deductibility of exploration expenditure and interest that were contrary to those the Commissioner reached in his private ruling dated 26 February 1998 (‘Private Ruling’);
∙the further letter Mr Sutton sent to Lachlan Resources NL on 29 June 2006, advising that the Commissioner did not consider himself bound to assess in accordance with the Private Ruling;
∙the change in the Commissioner’s stance expressed in Mr Kevin Hughes’ letter dated 24 August 2007 to Mr Janes of Deloitte Touche Tohmatsu Ltd (conceding the Private Ruling was binding, and that he would allow deductions for exploration expenditure and interest in line with the ruling – if not for the balancing adjustment claimed);
∙how the Commissioner interprets his ruling in paragraph (xi) of the Private Ruling (which deals with the scenario where LME1 exercises its option to put its interest in the Joint Venture tenements back to a subsidiary of Lachlan Resources, and goes on to confirm a balancing adjustment deduction of at least $16.46m) including how he reached the views expressed by Mr Hughes in his letters to Mr Janes dated 24 August 2007 and 8 January 2008 and the views expressed by Mr Vince Bock in his letter to Mr Treloggan of Deloitte Touche Tohmatsu Ltd, dated 18 March 2008 (which refers to the involvement of Mr Kevin Fitzpatrick);
∙the Commissioner’s basis for disallowing the balancing adjustment deduction claimed by LME1 and the proceeding to the issue of the income tax assessments for the 1999 income year to the Transferees, dated 18 February 2008;
∙the ATO’s consideration of the Transferees’ objections against these assessments (‘Objections’) since 21 April 2008 when they were lodged; and
∙the ATO’s consideration of the tax technical issues arising from and/or in relation to the Private Ruling and the Objections.”[10]
ATTACHMENT B
DOCUMENTS IDENTIFIED AS COMING WITHIN THE REQUESTS
The ATO has grouped the documents it has identified as coming within the scope of the two requests:
(1)Proceedings No 5419 of 2010
689 documents concerning the ATO’s audit, investigation and consideration of the deductibility of the losses transferred from LME1 to the group of nine and divided into eight categories:
(a)correspondence and documents concerning the establishment of the Joint Venture comprising:
records of communications between the Joint Venture participants, their advisers, banks and contractors regarding the establishment and conduct of the Joint Venture;
(b)correspondence and documents regarding the termination of the Joint Venture comprising:
records of communications between the Joint Venture participants, their advisers and bankers regarding the termination of the Joint Venture, including the exercise of the Put and Call Option, which provided the mechanism for its termination;
(c)applications and correspondence between third parties and government departments regarding:
the renewal of certain mining tenements, the approval of an assignment of a mining lease, stamp duty assessment, forms lodged with the Australian Securities and Investments Commission (ASIC) regarding the issue of shares, change of office holders, discharge of a charge over the property, change of principal place of business and the deregistration of a Joint Venture participant;
(d)drafts of formal agreements and associated correspondence comprising:
drafts of proposed Joint Venture Agreements and of an Explosion Assessment Discussion Paper;
(e)minutes of management committee meetings of the Joint Venture participants;
(f)Joint Venture reports and associated correspondence comprising:
Joint Venture progress reports and Joint Venture exploration activities and expenditure;
(g)requests for private rulings and associated correspondence comprising:
applications for Private Rulings, questions to be answered by the Commissioner and the ATO’s correspondence relating to those matters;
(h) Private Rulings and correspondence including:
the Private Ruling and associated correspondence including consents from third parties to the applications for a Private Ruling on their behalf;
(i)Notices issued under s 263 of ITAA36 and associated correspondence;
(j)Notices issued under s 264 of ITAA36 issued to third parties and associated correspondence;
(k)Position Papers and associated correspondence;
(l)draft Media Releases, ASX announcements and associated correspondence;
(m)ATO emails and other documents comprising:
Statements of Facts and Contentions prepared by ATO officers in relation to the Joint Venture and notes of discussions among taxation officers on tax technical issues relevant to the Joint Venture;
(n) ATO computer printouts comprising:
identity profiles and details of assessments issued to third parties;
(o) arrangements under ss 330-235 of ITAA97 comprising:
copies of agreements to allow a purchaser of the mining prospecting rights to include in the allowable capital expenditure amounts incurred by the purchaser in the acquisition of mining and prospecting rights in respect of the mining tenements, correspondence and an unsigned handwritten note referring to the agreements;
(p) bank statements and associated correspondence comprising:
information about bank deposits, drawdown of loans and statements of account for Joint Venture participants;
(q)financial statements and returns of a Joint Venture participant comprising:
audit reports, statements of account and other financial details about a Joint Venture participant;
(r)minutes of meetings, corporate register of a Joint Venture participant and associated correspondence including:
minutes of meetings of directors and secretarial records of a Joint Venture participant;
(s) minutes of meeting of directors of a Joint Venture participant;
(t)financial documents of a Joint Venture participant and associated correspondence comprising:
Consolidated financial statements, property valuations, budget documents, and exploration expenditure schedule and a cash flow analysis for a Joint Venture participant;
(u)financial documents of a shareholder of a Joint Venture participant;
(v)correspondence regarding exploration funding projects comprising:
information about a proposed product to utilise tax losses;
(w) project values for mining tenements comprising:
Valuation and anlaysis of the viability of exploring the mining tenements the subject of the Joint Venture;
(x)development options for mining tenements comprising:
financial analysis of various development options for the mining tenements which are the subject of the Joint Venture;
(y) maps, drawings and details of mining tenements comprising:
Maps, diagrams and other information about the mining tenements; and
(z) miscellaneous comprising:
payments of professional fees, advice from a bank about a change of address, a file note in relation to the cancellation of an invoice, a facsimile about payment of outstanding amounts, unsigned file notes in relation to sales tax losses and the Joint Venture transaction and advice about nickel prices; and
(2)Proceedings No 5080 of 2010
31 documents concerning the Private Ruling issued to LME1 in 23 February 1998 and divided into five categories:
(a)copies of the request for the Private Ruling made on behalf of LME1 and the other participants in the Joint Venture;
(b)documents provided by the applicants for a Private Ruling with their application;
(c)documents prepared by a group of taxation officers, who came from the ATO’s Audit Advisings and Appeals areas and who formed the ATO’s Mining and Petroleum Technical Forum (Mining Cell)[11] for the purpose of their considering the application for a Private Ruling comprising:
[11] The Mining Cell provided advice to resolve identified complex mining issues.
(i)minutes of a meeting of the Mining Cell (Document 15);
(ii)a discussion paper prepared for the purposes of the discussion among the members of the Mining Cell (Document 16);
(iii)correspondence among members of the Mining Cell about matters they had discussed (Document 17); and
(iv)an agenda for a meeting of the Mining Cell (Document 18);
(d)correspondence with participants in the Joint Venture in relation to their application; and
(e)the Private Ruling issued by the ATO to LME1 and the other participants.
ATTACHMENT C
LEGISLATIVE PROVISIONS RELATING TO PRIVATE RULINGS
When the Commissioner was asked for, and made, the Private Ruling in 1998, Private Rulings were regulated by Part IVAA of the Taxation Administration Act 1953 (TA Act). Part IVAA was repealed and Private Rulings made the subject of Division 359 in Schedule 1 to the TA Act with effect from 1 January 2006.[12] I note that a Private Ruling in force immediately before 1 January 2006 has effect on and after that day as it were a Private Ruling made under Division 359.[13] I have set out a broad outline of the legislative provisions relating to Private Rulings made in 1998 as was the Private Ruling in this case. It is not intended to be a comprehensive survey of those provisions.
PART IVAA OF THE TA ACT
[12] Tax Laws Amendment (Improvements to Self Assessment) Act (No. 2) 2005 (TLAISA Act), No. 161 of 2005, s 3 and Schedule 2, items 16 and 28
[13] TLAISA Act, s 3, Schedule 2, item 28(2)
Applying for a Private Ruling
Section 14ZAF of the TA Act provided that:
“A person may apply to the Commissioner for a ruling on the way in which, in the Commissioner’s opinion, a tax law or tax laws would apply to the person in respect of a year of income in relation to an arrangement.”
An “arrangement” included:
“(a) scheme, plan, action, proposal, course of action, course of conduct, transaction, agreement, understanding, promise or undertaking; or
(b)part of an arrangement”.[14]
The arrangement to which the application related might be an arrangement that had been carried out or that was going to be carried out or that was a proposed arrangement.[15]
[14] TA Act, ss 14ZAA(2) and 14ZAAA
[15] TA Act, s 14ZAI
The application might apply to a past year of income, the current year of income or a future year of income.[16] It had to give whatever information relating to the ruling as the Commissioner required as well as any documents he required.[17] In certain circumstances set out in s 14ZAM and particularly if the Private Ruling could not be made without it, the Commissioner was required to ask the applicant for further information.
[16] TA Act, s 14ZAH
[17] TA Act, s 14ZAJ
Making a Private Ruling
If the Commissioner considered that the correctness of a Private Ruling would depend on the assumptions made about a future event or other matter, the Commissioner might decline to make the ruling. Alternatively, he might make the assumptions he considered to be most appropriate.[18]
[18] TA Act, s 14ZAQ
The Commissioner made a Private Ruling by preparing, and serving on the applicant, a written notice of it.[19] Section 14ZAS provided that:
“(1) A notice of a private ruling must set out the matter ruled on and, in doing so, identify the person, tax law, year of income and arrangement to which the ruling relates.
(2) If the correctness of a private ruling depends on an assumption, the assumption is, for the purposes of subsection (1), an aspect of the arrangement to which the ruling relates.
(3) An arrangement may be identified in a private ruling by reference to matters set out in a document identified in the ruling and which, or a copy of which, is available to the rulee.”
[19] TA Act, s 14ZAR(1)
In certain circumstances, the Commissioner might withdraw a Private Ruling with, or without, the consent of the rulee and might do so either in whole or in part. In the broadest outline, he might not do so if the arrangement to which it related had not begun to be carried out or, if it had begun, another person would be disadvantaged if the ruling were not withdrawn.[20]
[20] TA Act, ss 14ZAU(1) and (2)
Private Rulings binding on Commissioner
In so far as income tax is concerned and subject to qualifications that are not relevant in the context of this case, s 170BB of ITAA36 as then in force
provided:
“… if:
(a)there is a private ruling on the way in which an income tax law applies to a person in respect of a year of income in relation to an arrangement (‘ruled way’); and
(b)that law applies to that person in respect of that year in relation to that arrangement in a different way; and
(c)the amount of the final tax under an assessment in relation to that person would (apart from this section and section 170BC) exceed what it would have been if that law applied in the ruled way;
the assessment and amount of final tax must be what they would be if that law applied to the ruled way.”
PROVISIONS OF SCHEDULE 1 OF TA ACT APPLYING TO PRIVATE RULING
For the most part, the provisions in Division 359 establish a legislative regime similar to the repealed Part IVAA. I will mention only a couple of provisions that add to the legislative context in which the Private Ruling is taken to have been made by virtue of the transitional provisions of the Tax Laws Amendment (Improvements to Self Assessment) Act (No. 2) 2005 (TLAISA Act).
Making a Private Ruling
The Commissioner makes a Private Ruling by recording the ruling in writing and giving a copy of it to the person who applied for it.[21] It must state that it is a Private Ruling and must identify the entity to whom it relates and specify the scheme and the relevant provision to which it relates.[22] If the Private Ruling contains any assumptions, the Commissioner will have been required to have told the applicant of them and to have given that applicant a reasonable opportunity to respond to them.[23]
[21] TA Act, Schedule 1, s 359-15
[22] TA Act, Schedule 1, s 359-20(2)
[23] TA Act, Schedule 1, s 357-110(2)
Private Rulings binding on Commissioner
Section 357-60(1) provides that, in most cases and in the circumstances of this case, a ruling binds the Commissioner in relation to a taxpayer if it applies to that taxpayer and if the taxpayer relies on the ruling by acting, or omitting to act, in accordance with the ruling. If a taxpayer would have achieved a more favourable result by not relying on a ruling and the Commissioner is not prevented from doing so by a time limit, he may apply a relevant provision to a taxpayer in the way it would apply had the taxpayer not relied on the ruling.[24] The Commissioner does not have a duty to do so.[25]
[24] TA Act, Schedule 1, s 357-70(1)
[25] TA Act, Schedule 1, s 357-70(2)
A taxpayer may stop relying on a Private Ruling
A taxpayer does not have to rely on a Private Ruling. He, she or it can stop doing so by acting, or omitting to act, in a way that is not in accordance with that Private Ruling.[26]
[26] TA Act, Schedule 1, s 357-65
Objections, reviews and appeals relating to Private Rulings
Section 359-60 provides for objections, reviews and appeals relating to Private Rulings. On an objection, s 359-65(1) provides that the Commissioner may consider any additional material that he did not consider when making the ruling. If that is information that the taxpayer did not have, the Commissioner must tell that taxpayer what the information is. Before making a ruling, the Commissioner must allow the taxpayer a reasonable time to respond to the information.[27]
ATTACHMENT D
[27] TA Act, s 359-65(2)
SECTION 36: internal working documents
The section
Section 36(1) of the FOI Act provides:
“Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the function of an agency or Minister or of the Government of the Commonwealth; and
(b)would be contrary to public interest.”
The section is qualified in two ways. First, it does not apply to a document by reason only of purely factual material contained in the document:
s 36(5). Second, it does not apply to matter used for the purpose of making decisions or recommendations referred to in s 9(1)(a): s 36(2). Where a decision is made to deny access to a document on the basis that the exemption in s 36 applies, the reasons given under s 26 must state the ground of public interest on which the decision is based.[28]
The authorities
[28] FOI Act, s 36(7)
A.Section 36(1)(a): the first criterion
Cases that have considered s 36(1)(a) have included Re Howard and Treasurer of the Commonwealth of Australia,[29] Re Murtagh and Commissioner of Taxation[30] (Murtagh), Re Waterford and Department of the Treasury (No.2),[31]
Re James and Others and Australian National University[32] and Kavvadias v Commonwealth Ombudsman (No 2).[33] In so far as those cases considered the word “deliberation”, their conclusion may be summarised in the words of Beaumont J in
Harris v Australian Broadcasting Corporationand others[34] when he said that:
“... ‘deliberation’ suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision.”[35]
Sheppard J’s observation in Kavvadias v Commonwealth Ombudsman is also pertinent and that is to the effect that the expression is not to be confined to policy making.[36]
[29] (1985) 7 ALD 626, Davies J
[30] (1984) 54 ALR 313; 6 ALD 112, Davies J, President, Sir Ernest Coates and RA Sinclair, Members
[31] (1984) 5 ALD 588, Deputy President Hall and I Prowse and CA Hughes, Members
[32] (1984) 6 ALD 687, Deputy President Hall
[33] (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198, Sheppard J
[34] (1983) 50 ALR 551; 5 ALD 545
[35] (1983) 50 ALR 551; 5 ALD 545 at 560; 553 (see also Re Murtagh and Commissioner of Taxation and Re Howard and Treasurer of the Commonwealth of Australia)
[36] (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198 at 76-77; 298-299; 210-211
Matter in the nature of a deliberation is not the only matter within the scope of s 36(1)(a). Other matters within its scope are matters in the nature of “opinion, advice or recommendation … [or] consultation”. In the case of Re Smith and Aboriginal and Torres Strait Islander Commission,[37] I set out the ordinary meanings of the other words used in s 36(1)(a) i.e. “opinion, advice or recommendation … [and] consultation:”
“Taking first the word ‘opinion’, it connotes ‘… a view held about a particular subject or point; a judgement formed; a belief …’ (The New Shorter Oxford English Dictionary, 1993) or a ‘1. judgment or belief resting on grounds insufficient to produce certainty. 2. a personal view, attitude, or estimation: public opinion 3. the expression of a personal view, estimation, or judgment: to give an opinion on tariffs. 4. a formal or professional judgment expressed, especially in law: counsel’s opinion. …’ (The Macquarie Dictionary, 3rd edition, 1997). The word ‘advice’ means ‘… The way in which a matter is looked at; opinion, judgement … consideration, consultation, reckoning … an opinion given or offered as to action; counsel … The result of consultation; determination, plan …’ (The New Shorter Oxford English Dictionary, 1993 and see also The Macquarie Dictionary, 3rd edition, 1997) . The meanings of ‘recommendation’ include ‘… The action or an act of recommending a person or thing; a recommended course of action etc.; a proposal …’ (The New Shorter Oxford English Dictionary, 1993 and see also The Macquarie Dictionary, 3rd edition, 1997). To a certain extent, the meanings of the words ‘opinion’, ‘advice’ or ‘recommendation’ overlap. Whether they overlap or not, all are expressing the notion of consideration followed by the formation of a view either about a certain subject or about a course of action and the transmission of that view.
The ordinary meanings of ‘consultation’ include ‘… A meeting in which parties consult together, or one person consults another, … ‘ (The New Shorter Oxford English Dictionary, 1993) and ‘… the act of consulting; conference. … a meeting for deliberation … an application for advice to one engaged in a profession …’ (The Macquarie Dictionary, 3rd edition, 1997). Again, there is a notion of consideration inherent in the meaning of ‘consultation’. That consideration may or may not lead to the formation of an opinion, advice or recommendation.
Similarly, the word ‘deliberation’ encompasses the notion of consideration. That consideration may involve consultation or discussion amongst more than one persons. Equally, a person who considers a matter on his or her own can be said to have deliberated upon it. Whether or not the deliberation leads in either case to the formation of an opinion, advice or recommendation is another matter.”[38]
[37] [2000] AATA 512
[38] [2000] AATA 512 at [54]-[56]
On its face, s 36(1)(a) appears to be broadly drafted to gather a broad range of matters within its scope and, with one exception, there is no reason in the context either of the remainder of the section or of the FOI Act to limit the ordinary meanings given to the words “opinion, advice or recommendation … consultation or deliberation”. In Re Booker and Department of Social Security,[39] I gave further consideration to the word “consultation” and, after reviewing various authorities, added that “…in order for there to be a consultation, there must be something of a two way exchange between at least two parties. …”.[40]
[39] [1990] AATA 218, 13 September, 1990
[40] [1990] AATA 218, 13 September, 1990 at [25]
That brings me to the qualification expressly stated in s 36(1)(a)
to limit the meaning that must be given to the words “opinion, advice or recommendation” and also to the words “consultation or deliberation”. That qualification is that it must have been “obtained, prepared or recorded” (if an opinion, advice or recommendation) or “[have] taken place” (if a consultation or deliberation) “in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency …”.
The meaning of the expression “taken place” seems clear enough but what of the words “obtained, prepared or recorded”? The word “obtain” was considered by Newman J in Kelly v JRA Ltd[41] in the context of s 234(1)(b) of the Customs Act 1901. That section provided, in part, that “A person shall not …obtain any … refund … which is not payable”. His Honour said:
“… The word ‘obtain’ is defined by the Shorter Oxford English Dictionary as being ‘to procure or gain, as a result of purpose and effort … to possess’.
The Macquarie Dictionary showing consistency with its English counterpart, defines ‘obtain’ as ‘to come into possession of; get or acquire; procure as by effort or request.’ In my view the action required of a person to come into possession of a refund of duty from the Collector of Customs requires, on that person’s part, a conscious effort to receive a refund evidenced by the fact that to get such refund, the person seeking it must actively do something to get it.”[42][41] (1990) 92 ALR 651
[42] (1990) 92 ALR 651 at 657-658
It seems to me that a similar meaning should be given to the word “obtain” as it is used in s 36(1)(a). The opinion, advice or recommendation must have been acquired or procured in the course of, or for the purposes of, its deliberative processes involved in its functions. It is not enough that the opinion, advice or recommendation was received by an agency when it was not sought by that agency either explicitly or implicitly.
The remaining words to consider are “prepared” and “recorded”. Their meanings are clear and, given their context, it is equally clear that the opinion, advice or recommendation must have been “prepared or recorded” in, or for the purposes of collective discussions i.e. the deliberative processes. At one time, it would generally have been expected that the opinion, advice or recommendation would be prepared or recorded within the agency. It could always be envisaged, though, and it has now become more common for an agency to ask a person outside it to prepare or record the opinion, advice or recommendation. Provided it is prepared or recorded with the imprimatur of the agency and that the other criteria in s 36(1)(a) have been met, the opinion, advice or recommendation would come within the paragraph. It is not enough, though, that it has been prepared or recorded and then proffered to the agency. To come within the paragraph, it must have been prepared or recorded in the course of, or for the purposes of, the agency’s deliberative processes and so the opinion, advice or recommendation must have been prepared or recorded as a result of the agency’s seeking it rather than its simply being the recipient of it.
Perhaps their meanings are self explicit but I should also spend a moment on the meaning of the words “in the course of” and “for the purposes of” the deliberative processes “involved in” the functions of an agency, Minister or Government of the Commonwealth as they appear in s 36(1)(a). In order to claim an exemption under s 36, it is not enough that the agency or Minister has a document containing an opinion, advice or recommendation or consultation or deliberation referring to matters for which the agency or Minister has responsibility. It must be matter of that sort that has been obtained, prepared or recorded or, in the case of a consultation, has taken place in the course of, or for the purposes of the deliberative processes involved in their functions.
In the context of s 6 of the Contracts Review Act 1980 (NSW), Young J considered the meaning of the expression “for the purpose of a trade, business or profession’. His Honour did so in Ellison v Vukicevic[43] when he adopted what Lee J had said in Collins v Parker:[44]
“ The expression ‘for the purpose of’ has the meaning that the contract under consideration is entered into as an ordinary incident of the carrying on of a particular trade, business or profession then being carried on or proposed to be carried on.”[45]
It seems to me that this interpretation is equally apt in s 36(1)(a) of the FOI Act. If matter has been obtained “for the purposes of” deliberative processes, it must have been obtained as an ordinary incident of them.
[43] (1986) 7 NSWLR 104 at 111
[44] Unreported, SC (NSW), 11 May 1984 at 18
[45] Both cases were cited with approval by Toohey and Gaudron JJ in Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388; 120 ALR 440 at 400; 446
The expression “in the course of” raises similar issues of connectivity between the particular matter and the deliberative processes. Those issues are of the same sort as those that arise when considering whether an injury has occurred “in the course of employment”. Deane J considered them in Commonwealth of Australia v Lyon[46] when said:
“ Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something which is a concomitant of, or reasonably incidental to, his employment to do that work … The course of employment is a temporal concept and it is unnecessary that there be any causal connection between the work which the employee is employed to do and the injury which he sustains … The scope of what is within it depends upon ‘the sufficiency of the connection between the employment and the thing done by the employee’ which ‘cannot but remain a matter of degree, in which time, place and circumstances, as well as practice, must be considered together with the conditions of employment’ (per Dixon J, Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 at 29, and see, generally, per Stephen J Bill Williams Pty Ltd v Williams [1972-73] ALR 303; 126 CLR at 158-9.”[47]
[46] (1979) 24 ALR 300
[47] (1979) 24 ALR 300 at 303-304
There are, of course, later authorities concerned with what is meant by an injury “in the course of employment”. One of these is Hatzimanolis v ANI Corporation Ltd[48] in which Mason CJ, Deane, Dawson, Toohey and McHugh JJ said:
“… In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen …[[49]]’.”[50]
That, too, is a principle that is equally applicable in considering whether a matter of the sort described in s 36(1)(a) has been obtained, prepared or recorded or a consultation or deliberation has taken place in the course of the deliberative processes involved in the functions of an agency, a Minister or the Government of the Commonwealth. Regard must be had to the general nature, terms and circumstances of those deliberative functions.
[48] (1992) 173 CLR 473; 106 ALR 611
[49] Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 at 537
[50] (1992) 173 CLR 473; 106 ALR 611 at 484; 618
It follows that there must be a connection of the sort described between the opinion, advice or recommendation or of the consultation or deliberation and the deliberative processes of an agency. That, however, is not the only connection that must be made for the purposes of s 36(1)(a). There must be a connection of the sort described by the expression “involved in” between the deliberative processes and the functions of an agency, a Minister or the Government of the Commonwealth. What is the nature of that connection? The word “involve” means in this context:
“… to require as a necessary part …”[51]
Therefore, the deliberative processes must be those that are required as a necessary part of the functions of the agency, Minister or the Government of the Commonwealth.
[51] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
The expression “deliberative processes” has been considered in
Re James and Others and Australian National University in which Deputy President Hall repeated the view he had expressed as a member of the Tribunal in Re Waterford and Department of the Treasury (No.2) that the “deliberative processes” of an agency are its “thinking processes”.[52] Sheppard J stated in Kavvadias v Commonwealth Ombudsman that the expression is not to be confined to policy making.[53] Several authorities were reviewed by Davies J in Re Howard and Treasurer of the Commonwealth of Australia.[54] He referred to Re Murtagh and Commissioner of Taxation, with which he agreed and in which the Tribunal had said:“The term ‘deliberative processes’ would seem to have a wide ambit.
The term was considered by Beaumont J in Harris v Australian Broadcasting Corporation (1983) 50 ALR 551. At 560, his Honour said that: ‘... “deliberation” suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision.’”[55][52] (1984) 6 ALD 687 at 693
[53] (1984) 2 FCR 64; 54 ALR 285; 6 ALD 198 at 76-77; 298-299; 210-211
[54] (1985) 7 ALD 626
[55] (1984) 6 ALD 112; 84 ALR 313 at 118-119; 319 and see also Re Howard (1985) 7 ALD 626 at 630
Davies J referred also to the Tribunal decision in Re Waterford and Department of the Treasury (No.2) where it said:
“As a matter of ordinary English the expression ‘deliberative processes’ appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. ‘Deliberation’ means ‘The action of deliberating: careful consideration with a view to decision’: see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one’s course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. Deliberations on policy matters undoubtedly come within this broad description. Only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does s36(1)(a) come into play.”[56]
[56] (1984) 5 ALD 588 at 606 and see also Re Howard (1985) 7 ALD 626 at 630
This passage was considered by Deputy President McDonald in
Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs.[57] He then said:“ In reaching a decision to characterise a document as being part of a deliberative process the tribunal may seek guidance, but not be bound, by the wording used in the document itself. The determination should be based on a fair reading of the whole of the document and not a disjunctive reading of selected passages. Additionally, the characterisation should be determined not only by having regard to the wording used in the document, but also by reference to the surrounding circumstances and the matters deposed to in any evidence supporting the maintenance of the exemption. …”[58]
[57] (1996) 43 ALD 139
[58] (1996) 43 ALD 139 at 148
While I would not disagree that the whole of any document should be read before coming to a decision, I would disagree with any suggestion, if there be any, that the whole of the document will always be relevant. The occasions on which the whole of the document will not be relevant may be few but the fact that they may occur should be borne in mind. They may, for example, appear in a document that cannot itself be described as a document whose disclosure would reveal matter that would otherwise come within the scope of s 36(1)(a). That this may be so is underlined by the provisions of s 22(1) of the FOI Act in so far as it contemplates the possibility that exempt matter may be deleted from a document so that it is no longer an exempt document. Subject to certain conditions, s 22 permits access to be given to a document that has been redacted in that way.
B.2 The qualification in s 36(5): purely factual material
The expression “purely factual material” was considered by Deputy President Todd in Re Waterford and Treasurer of the Commonwealth (No 1).[59]
He concluded “… that to be described as ‘factual’ the material must be ‘factual’ in fairly unambiguous terms. …”[60] As for the word “purely”, it “… is clearly not used to denote something about the character of what is comprised in ‘factual material’. It has the sense of ‘simply’ or ‘merely’ …”.[61] Although it may be more a matter of semantics than of substance, I would approach the matter from a slightly different view of the role of the word “purely”. In my view, it is intended to emphasise that the material must be “… wholly …[or] entirely …”[62] comprised of factual material and cannot incorporate any material that is not factual material. As Deputy President Todd would say: it comprises merely or simply factual material. It does not contain material that can be described as opinion, advice or recommendation or even conjecture.[63][59] (1984) 6 ALN N347
[60] (1984) 6 ALN N347 at N349
[61] (1984) 6 ALN N347 at N349
[62] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[63] Where purely factual material is mixed with opinion, advice or recommendation that is exempt under the FOI Act, consideration must be given to whether that exempt matter can be deleted from the document in accordance with s 22.
The distinction was drawn by the Full Court of the Federal Court in Harris v Australian Broadcasting Commission:[64]
“ Equally, some conclusions may be classed as purely factual material. We hesitate to import notions from the law of evidence into this field. However, it may be useful to refer to the distinction, with which lawyers are familiar, between primary facts and ultimate facts. In our view a statement of ultimate fact may be a statement of purely factual material, notwithstanding it involves a conclusion based on primary facts. Many common statements of fact may, if analysed, be found to be based on primary facts. For example, the statements X has a cold or Y resides in Sydney are both statements based on primary facts, which are unstated. On the other hand, a conclusion which involves opinion, advice or recommendation for the purposes of the deliberative process may well prevent material from being purely factual and render it exempt.”[65]
B.3The qualification in s 36: matter used for the purpose of making decisions or recommendations referred to in s 9(1)(a)
[64] (1983) 51 ALR 581, Bowen CJ, St John and Fisher JJ
[65] (1983) 51 ALR 581 at 586
Section 9(1)(a) refers to matter used for the purpose of making decisions or recommendations referred to in s 9(1)(a). Those are “manuals or other documents containing interpretations, rules, guidelines, practices or precedents …” and must be made available for inspection and purchase in accordance with s 9. Although it may be that Document 312A contains the final draft of the content of what was to become PS 174, it is not the final copy that was available for use by ASIC officers in making decisions or recommendations under the Corporations Act. The document does not bear a PS number, its issue date is blank and the list of related instruments is incomplete. Therefore, the qualification in s 36(1)(a) is irrelevant.
B.4 Section 36(1)(b): “contrary to the public interest”
If a document comes within the scope of s 36(1)(a) and is not excluded by one or other of the exceptions in ss 36(5) or (6), it will not be exempt unless its disclosure under the FOI Act would be contrary to the public interest. What is meant by “contrary to the public interest” in s 36(1)(b) was considered by the High Court in McKinnon v Secretary, Department of the Treasury (McKinnon).[66] Before I come to that, I have found it helpful to look at earlier authorities considering the meaning of “public interest” in other contexts.
[66] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516
In the different context of defamation law, Lord Denning said in London Artists Ltd v Littler:[67]
“… There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment. A good example is South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133.
A colliery company owned most of the cottages in the village. It was held that the sanitary conditions of those cottages — or rather their insanitary condition — was a matter of public interest. Lord Esher MR, said at p 140, that it was “a matter of public interest that the conduct of the employers should be criticised”. There the public were legitimately concerned. Here the public are legitimately interested. Many people are interested in what happens in the theatre. The stars welcome publicity. They want to be put at the top of the bill. Producers wish it too. They like the house to be full. The comings and goings of performers are noticed everywhere. When three top stars and a satellite all give notice to leave at the same time — thus putting a successful play in peril — it is to my mind a matter of public interest in which everyone, press and all, are entitled to comment freely.”[68][67] [1969] 2 QB 375
[68] [1969] 2 QB 375 at 391
In McKinnon v Secretary, Department of Treasury,[69] Tamberlin J said:
[69] [2005] FCAFC 142; (2005) 145 FCR 70 at 75-76, Tamberlin and Jacobson JJ, Conti J dissenting
“10. The expression ‘the public interest’ is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest …
11.-12.…
13. In the context of freedom of information, the notion of ‘the public interest’ was helpfully considered by the Appeal Division of the Supreme Court of Victoria in Director of Public Prosecutions v Smith [1991] 1 VR 63 at 75, where Kaye, Fullagar and Ormiston JJ said:
‘The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals: Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 480, per Barwick CJ. There are … several and different features and facets of interest which form the public interest.’
14. The expression ‘the public interest’ was also the subject of consideration by Lehane J in Botany City Council v Minister for Transport and Regional Development (1996) 137 ALR 281 at 308, again in an administrative law context, where his Honour said:
‘I think it is clear that the principal public interest to which the second respondent was giving expression was an interest in ... the equitable or fair distribution of the noise necessarily associated with an airport close to the centre of a large city; and his view was that that public interest required dispersal of the noise rather than its concentration in
a narrow corridor. ... Others might ... take a different view of what the public interest required. A decision between competing views is not, however, a matter for the court. What the court has to decide is whether the second respondent’s reasons disclose reviewable error, particularly, a misconstruction on his part of the expression “the public interest”. In my view they do not.’15. His Honour also referred to the statement by Mason CJ, Brennan, Dawson and Gaudron JJ in O’Sullivan v Farrer (1989) 168 CLR 210 at 216 that:
‘Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable …’”
See also Water Conservation and Irrigation Commission v Browning (1947)
74 CLR 492 at 505 and In re Thompson (1964) Tas SR 129 at 143-144.
What is clear from these cases is that the public interest is not a static concept. It is, instead, a concept that takes its shape and substance from the circumstances which are said to give rise to it. Those circumstances will be factual and statutory. In Botany City Council v Minister for Transport and Regional Development,[70] for example, the factual circumstances were the airport, the noise it generated and the effect of noise on people. In London Artists Ltd v Littler, the factual circumstances were the sanitary conditions and their provision by an employer.
[70] (1996) 137 ALR 281
This seems to accord with the approach taken in a decision of Davies J as President of the Tribunal in Re Howard and Treasurer of Commonwealth of Australia.[71] He was concerned with a conclusive certificate and so with whether there existed reasonable grounds for a claim that disclosure of certain documents would be contrary to the public interest. Mr Howard had requested documents provided to the then Government by an Australian Council of Trade Unions’ (ACTU) Task Force during the formulation of the 1984/85 Budget. When in opposition, the Government had forged an Accord with the ACTU regarding economic policy. In particular, the Government had agreed to consult with the ACTU regarding income and prices policies including taxation. Access was refused to a minute to the Treasurer and a telex to the ACTU. Both documents advised the Treasurer on the implications and estimated cost of certain taxation options. Davies J referred to previous authorities from which he gleaned that the whole of the circumstances needed to be examined. Those circumstances included any public benefit perceived in their disclosure.[72] He drew five propositions to which I referred in Re McKinnon and Secretary, Department of Prime Minister and Cabinet.[73]
[71] (1985) 7 ALD 626
[72] (1985) 7 ALD 626 at 634 Given the position expressly taken in McKinnon that the exercise does not permit the Tribunal to engage in a balancing exercise, it would seem that this aspect of Davies J’s reasons for decision relating to any benefit from disclosure might have to be treated cautiously.
[73] [2007] AATA 1969 at [108]
Mr Howard had framed his submissions around three points. First, the Accord was a political document. Second, the ACTU had not produced any evidence as to whether maintaining the confidentiality of their discussions was important to them. Third, there is a clear public interest in not only the reality, but the appearance, of equal treatment of claimant groups and their representatives in the Australian community. The Government of the day had appeared, Mr Howard submitted, to have treated the ACTU in a special manner. Davies J dealt with these submissions and analysed the evidence in a way consistent with the approach that appears to underpin the judgments, to which I have referred, and to that of the High Court in McKinnon to which I will refer shortly:
“ In the present case, I think there were and are reasonable grounds for concluding that disclosure of the documents would be contrary to the public interest. In the preparation of the Budget, the Treasurer and officers of his Department would have given consideration to a wide range of options. Some options would have been noted and not further considered, others may have been given scant attention. Some options may have been given serious consideration but not adopted for one reason or another. In the course of the development of the Budget, new options may have come to light. In the end, the Budget would have been formulated. The authorities to which I have referred recognize a public interest in protecting from disclosure such a process of deliberation. Protection of the deliberative process encourages ‘creative debate and candid consideration of alternatives’, to use the words of Wilkey J (Jordan v Department of Justice, supra, [591F (2d) 753 (1978)] at 772). It prevents premature disclosure of possible options and confusion arising between options considered and options adopted. And lastly it protects the integrity of the decision-making process by enabling the government to be judged by what it has decided to do rather than by material it has taken into account. These elements of the public interest are as significant in this country as they are in the United States or in the United Kingdom.”[74]
[74] (1985) 7 ALD 626 at 636
This brings me to the approach taken by the High Court in McKinnon. Although considering a conclusive certificate that had been issued in relation to a claim that disclosure of certain documents would be contrary to the public interest within the meaning of s 36(1)(b), some mention was made of the general notions of public interest in their Honour’s judgments. There were three different approaches in the three judgments in McKinnon.
Gleeson CJ and Kirby J examined the object of the FOI Act, the structure of s 36 and its place in the legislation. They continued:
“ A conclusion that disclosure of an internal working document would be contrary to the public interest may or may not turn upon contestable facts: either primary facts, or inferences to be drawn from those facts. It may or may not turn upon contestable matters of opinion. Inevitably, it will involve a judgment as to where public interest lies. Such judgment, however, is not made in a normative vacuum. It is made in the context of, and for the purposes of, legislation which has the object described above, which begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests (s 3(1)(b)).”[75]
[75] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 428; 189; 518 [5]
Their Honours’ reference to the fact that “judgment” is required in determining where the public interest lies and to that judgment’s being made in a particular context found expression in a later passage in their judgment:
“… This is a concept that assumes prominence in a different context, in which courts are required to deal with claims of public interest immunity advanced in opposition to the production of documents, for example under subpoena, in civil or criminal litigation. There, it is the public interest in the administration of justice, and considerations of fairness to litigants, that may need to be weighed against aspects of the public interest put at risk by disclosure of documents …. The image of the scales of justice is pervasive in legal thinking, and it is natural to talk of taking account of competing considerations in those terms. Under the FOI Act, however, the matter of disclosure or non-disclosure is not approached on the basis that there are empty scales in equilibrium, waiting for arguments to be put on one side or the other. There is a ‘general right of access to information … limited only by exceptions and exemptions necessary for the protection of essential public interests [and other matters not presently material]’ (s 3(1)(b)). That is the context in which a minister makes a decision under s 36(3), and in which such a decision is reviewed under s 58(5). References to ‘balancing’ create a danger of losing sight of that context. …”[76]
[76] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 433; 193; 522 [19]
Gleeson CJ and Kirby J were in the minority on the final result but their views are not incompatible with those of Hayne J, who was a member of the majority. Hayne J made the following observations on the meaning of “public interest”:
“ It may readily be accepted that most questions about what is in ‘the public interest’ will require a consideration of a number of competing arguments about, or features or ‘facets’ of, the public interest. As was pointed out in O’Sullivan v Farrer …[[77]]:
‘[T]he expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view” …[[78]].
That is why a question about ‘the public interest’ will seldom be properly seen as having only one dimension.”[79]
[77] (1989) 168 CLR 210 at 216
[78] Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J
[79] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 443-444; 202; 531[55]
In contrast to these expressions of the public interest, Callinan and Heydon JJ made the following observations regarding the public interest:
“ Nor are we by any means certain that it is apt to describe the public interest as multifaceted. Neither the fact that different people will see it through different prisms, nor the fact that an all-encompassing definition of it for all occasions is not possible, means that the public interest is multifaceted. … Judges have usually not found it necessary to direct juries at length as to the meaning of the expression, except to warn them that it is not enough that the matter might be of some personal or prurient interest, or merely something about which they may be curious.”[80]
[80] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 468; 221-222; 550-551 [130]
The conclusion to be drawn is that the public interest is not multifaceted but a concept which shapes itself to the factual circumstances under consideration and any statutory provisions applicable to those circumstances for its very dimensions and boundaries are drawn by those circumstances and provisions. That is illustrated by the judgment of Gleeson CJ and Kirby J who note that the FOI Act itself begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests.
In trying to ascertain the public interest, a distinction must be drawn between the public interest and a matter of interest to the public. In Director of Public Prosecutions v Smith,[81] the Victorian Supreme Court considered a decision made by the former Administrative Appeals Tribunal of Victoria (AATV) to release documents relating to a decision by the Victorian Director of Public Prosecutions not to prosecute a solicitor on the basis that their release was in the public interest. It had been alleged that the solicitor had been a party to a fraud upon a businessman who was a client of the practice in which the solicitor was then employed. Section 50(4)
of theFreedom of Information Act 1992 (Vic) (FOIVIC) empowered the AATV to override most exemptions[82] where it was of the opinion that the public interest required that access to the document should be granted under that Act. The documents to which the Tribunal granted access contained detailed references to business transactions of the former client, who had begun legal proceedings against the solicitor’s firm, complained to the Victorian Law Institute and reported the matter to the police.[81] [1991] 1 VR 63; (1991) 100 FLR 6
[82] Excluded from the power given by s 50(4) of FOIVIC were the exemptions relating to Cabinet documents (s 28), documents affecting national security (s 29A) Bureau of Criminal Investigation documents (s 31(3)) and documents relating to personal privacy (s 33).
s 335-30(1) of the TA Act;(2)it is protected information but is excluded from the prohibition on disclosure by virtue of ss 355-45 to 355-210; and
(3)a document coming within the terms of the requests is excluded from the right of access by virtue of s 12.
A.Documents known to Pratt Holdings
Pratt Holdings provided a list of some 160 documents to which they have already had access otherwise than under the FOI Act or which contain the same information. They fall into several categories. By far the largest comprises documents that were obtained from a member of the Pratt Group.[162] They are Documents 593 to 674 in the Schedule of Documents prepared on 24 November 2011. Other documents can be grouped by reference to whether they were obtained by officers of the ATO exercising powers under ss 263 or 265 from the Visy Industries Group, Barrick Gold Corporation, Allco, HSBC Bank Australia Limited, Westchester Financial Services Pty Limited. Their origin appears from the reference number they have been given in these proceedings.[163] A third category of documents is identified by reference to the initials of the taxation officers who wrote them.[164] A final broad category comprises a range of documents coming within the two proceedings and not identified by reference to author or origin particularly.
[162] Mr Bok at Transcript at 104-105
[163] Affidavit of Mr Bok, Exhibit 3 at [15]-[20]
[164] Mr Shaw at Transcript at 123
During his cross-examination of Mr Bok, Mr Pizer showed him a number of documents and asked him to compare them with specific documents claimed to be exempt under s 38 of the FOI Act. Mr Bok indicated when there was no difference between the documents, whether the information was the same or essentially so, whether one document contained handwritten annotations and the other did not, whether one appeared to be a part of the other and whether it was not the same document at all. The list of documents identifies all but the documents that were not the same.
On the basis of Mr Bok’s evidence, I am satisfied that each of the documents contains information that was disclosed or obtained under, whether it be
ss 263 or 264 of ITAA36, or for the purposes of a law that was a taxation law when the information was disclosed or obtained. From my examination of the documents, I am satisfied that the information relates to the affairs of at least one entity. That entity is named in the document concerned and, where its name is not used, the information is reasonably capable of being used to identify it.
This is the case for the information in respect of the information in Document 5 in proceedings No. 5080 of 2011 claimed to be exempt under s 38. I take that document as an example indicative of other documents in Pratt Holdings’ list of documents already known to it. Document 5 contains protected information and so would be prohibited from disclosure under s 355-25(1) unless it were to come within an exception to the prohibition. The only possible exceptions to the prohibition that might be relevant are those in s 355-50 permitting disclosure in the course of a taxation officer’s duties. I have already set out the way in which I think that the exceptions to
s 355-25 and s 38(1A) of the FOI Act fit together. In summary, my view is that, when the exceptions apply, access is not given in response to a request under the FOI Act but in compliance with the taxation officer’s duties under the taxation law. It may be that the two coincide in their timing in some instances but not in their characterisation.
In the case of Document 5, I am not satisfied that a taxation officer’s duties would require its disclosure. If it is relevant in the Federal Court proceedings and is required to be discovered, that duty has not yet arisen. When it does, compliance will take place in the context of those proceedings. Section 38(1A) of the FOI Act cannot be used to found a decision that the document is not exempt under
s 38(1) in relation to the passages for which it is claimed to be exempt. Although the situation may change at some time in the future, at the time of making this decision, its disclosure is prohibited under the TA Act.
I have looked also at the duty to disclose information to enable Pratt Holdings to understand or comply with its obligations under a tax law. By way of background, I note that Pratt Holdings has been given access to:
(1) a Private Ruling issued to Lachlan and LME1 on 23 February 1998;
(2)a Review of Private Ruling dated 23 September 2005;
(3)a Position Paper issued to Lachlan Resources NL on 29 June 2009;
(4)a letter from Mr Kevin Hughes of the ATO to Mr Greg Janes of Deloitte dated 24 August 2007;
(5)a letter from Mr Kevin Hughes to Lachlan Resources NL dated
8 January 2008;(6)an Audit Report and Addendum to Audit Report;
(7)a letter from Mr Bock to Mr Graeme Treloggan of Deloitte dated
18 March 2008;(8)a report prepared for the purposes of the Objection Decisions and setting out the basis for the Commissioner’s position; and
(9)reasons for the Objection Decision.
The obligations of Pratt Holdings or of one of the group of nine in the Pratt Group in this particular matter are tied to those of LME1 in relation to the losses it could claim and which were the subject of the Private Ruling. The information for which exemption is claimed in Document 5 does not have any relevance to those particular obligations and so its disclosure is not excluded under s 355-50 from the prohibition in s 355-25.
I have taken a second example. That is Document 11 in proceedings No. 5080 of 2011: Document ATO.002.0197. It is a Mining Joint Venture Agreement and, on its face, it might be thought to be relevant to the Private Ruling and so to Pratt Holdings’ understanding its obligations under a tax law when its obligations arise from losses incurred by LME1 as a result of a Joint Venture. The obligations, however, arise as a result of the Commissioner’s view, and his issuing an assessment as a consequence of his view, that LME1 did not act in accordance with the Private Ruling. That is one of the criterion that must be satisfied before the Commissioner is bound by a Private Ruling. The Private Ruling, whether made under the previous legislative framework as is the case here, or under the present provisions, is a self-contained document. It sets out the arrangement to which it applies and that is the focus of whether a taxpayer acted in accordance with the arrangement and so relied upon the Private Ruling. The documents that might have been considered in the course of making the Private Ruling are not generally relevant at that stage. Therefore, a document such as Document 11 is not relevant to Pratt Holdings’ understanding its obligations under the tax law.
Two more documents provide an example of a document where it might be expected that the document or the information in it is publicly available. One is Document 519 (ATO.HSBC.001.0013 dated 24 September 1999) in proceedings
No. 5419 of 2011 and listed in the Schedule prepared on 24 November 2011. That is a document available through other means to Pratt Holdings. The other is Document 541 (ATO.HSBC.001.0042 and undated) in proceedings No. 5419 of 2011 and listed in the Schedule prepared on 24 November 2011. It is not listed in the documents known to Pratt Holdings. Both are copies of an ASIC Form 312 entitled “Discharge or Release of Property from a Charge”. Document 519 is a signed copy with no obvious omissions. Document 541 is an unsigned and undated copy missing a copy of a document to which it refers.[165] The substance of the documents is not identical in all respects.[165] Document 542 being Annexure A to Form 312 could be part of the same document but Document 541 is unsigned, undated and incomplete even if Annexure A were to be read as part of it.
Although no evidence was given on the issue, I think that I can note that s 1274(1) of the Corporations Act requires ASIC to keep such registers as it considers necessary. Under s 1274(2), a person may inspect any document lodged with ASIC other than those documents described in that provision. In so far as the registers are concerned, s 1274A provides that ASIC may permit a person to search a prescribed register to obtain prescribed information. “Prescribed registers” are those set out in
r 9.1.01 of the Corporations Regulations 2001 (Corporations Regulations). They include the register of companies registered under s 118 of the Corporations Act. “Prescribed information” includes details of its full name, date of its registration, principal place of business, its officers and its paid up and unpaid up capital.[166][166] Corporations Regulations, r 9.1.02(a)
Section 5 of the Corporations (Fees) Act 2001 (CF Act) provides that the regulations may prescribe fees for chargeable matters including the inspection or search of a register kept by, or a document in the custody of, ASIC under that Act and the making available by ASIC, under that Act, of information (whether in the form of a document or otherwise).[167] The fees applicable to inspection of documents on ASIC registers are set out in Schedule 1 to the Corporations (Fees) Regulations 2001 (CF Regulations) at items 29 to 37.[168]
[167] Definition of “chargeable matter”; CF Act, s 4(c) and (d)
[168] CF Regulations, r 3(1)
Returning to Document 519, I am satisfied on the basis of the document produced on behalf of Pratt Holdings that it is a document that has been lodged with ASIC. I reach that conclusion on the basis of the copy of the document in Pratt Holdings’ folder of documents known to it. That copy is the same in all respects to that claimed to be exempt in its entirety apart from the fact that it has a lodgement stamp in the form of a barcode that has been placed on it by ASIC. I make that finding on the basis of my knowledge of the ASIC documents that I have examined in cases over the years. It is a document whose inspection is not excluded by s 1274(2) of the Corporations Act as it is lodged under s 269(1) of that legislation and that is not a section named in s 1274(2). In view of the provisions relating to charging, I am also satisfied that it is a document for which a fee or charge must be paid before it may be inspected. Therefore, Document 519 comes within the ambit of s 12 and so outside the scope of the right to access under Part III of the FOI Act. It is excluded from access rather than exempt from access.
Document 541 is in a different position. It bears no lodgement stamp from ASIC and would appear to be incomplete. In light of that, I am satisfied that it would not have been lodged with ASIC in that form. Therefore, it is not excluded by
s 12 of the FOI Act.
The question then becomes: is it excluded from the prohibition from disclosure in s 355-25 of the TA Act for I have already decided that it is protected information? That takes me back to s 355-45. If Document 541 contains information that is available to the public by virtue of the public’s right to inspect a lodged document, s 355-45 will exclude that information from the prohibition on disclosure. Unlike s 12, s 355-45 focuses on the information and not on the document. Form 312 is not a form that is excluded from public inspection.
On the evidence that I have, I do not know whether a completed version of Document 541 was lodged with ASIC. Section 355-45 focuses on the information that is available to the public and not on the document but it is a document of a sort that might reasonably be expected to have been lodged and required to have been lodged. If it has been lodged, it is likely to be available to the public. I am in a position where I do not know whether the information in the document is, or is not, available to the public. If this were a case in which there were no burden of proof on either party, my state of uncertainty would lead me to conclude that I had failed to reach the state of mind necessary to change the decision that had already been made that the document is exempt.[169] Section 61(1), however, does impose a burden of proof on the ATO. It is a burden to establish “that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.” Having reached a state of uncertainty the burden imposed by s 61(1) means that I am not satisfied that the decision given in respect of Document 541 is justified. Therefore, I find that it comes within s 355-45 of the TA Act and so is excluded from the prohibition against disclosure in s 355-25. It is not an exempt document under s 38 of the FOI Act.
[169] McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354; Woodward, Northrop and Jenkinson JJ at 356; 6 per Woodward J
By way of comparison, I have looked at a document such as Document 288. It is undated but is a form entitled “Department of Mines and Energy Application for Renewal Exploration Permit”. Reference is made on the document to s 147 of the Mineral Resources Act 1989 (Vic). The relevant legislation is now the Mineral Resources Development (Sustainable Development) Act 2006 (Vic). It makes no provision for public inspection of documents lodged under the legislation. That places Document 288 in a different position from Document 541 from the outset. Unless Pratt Holdings had produced material to show that it was publicly available or the ATO became aware of it in some other way, I would not expect that ATO to lead evidence to establish that information in a document such as Document 288 is not available to the public in some other way.
I have looked at the other documents known to Pratt Holdings in whole or in part. They can be grouped according to the first two examples I have given. I am satisfied that the ATO has correctly claimed exemption under s 38 in relation to the whole or part of the remainder of those documents for the same reason.
B.Other documents for which exemption claimed under s 38
I have looked at the other documents for which exemption is claimed under s 38 either in whole or in part. Apart from ASIC forms, the examples I have chosen in the previous section of these reasons are equally applicable to these documents. That reasoning leads to the same conclusions as I have in relation to Documents 5 and 11.
Documents 78, 435, 437-438, 440, 445-447 and 508-509 are similar to Documents 541 and 519 in that they are ASIC forms. They can be described as:
| Document | Date | Description |
| 78 | undated | Form 312 “Notification of discharge or release of property from a charge” Undated, unsigned and not lodged with ASIC |
| 435 | 30 June 1998 | Form 207 “Notification of share issue” Dated, signed and marked as a “File Copy” but not copy of document bearing ASIC’s lodgement code |
| 437 | 31 May 1999 | Form 207 “Notification of share issue” Dated, signed and marked as a “File Copy” but not copy of document bearing ASIC’s lodgement code |
| 438 | 7 December 1998 | Form 902 “Notification of information supplementary to a form or document previously lodged” Dated, signed and marked as a “File Copy” but not copy of document bearing ASIC’s lodgement code |
| 440 | 30 November 1998 | Form 207 “Notification of share issue” Dated, signed and marked as a “File Copy” but not copy of document bearing ASIC’s lodgement code |
| 445 | 1 April 1998 | Form 304 “Notification of change to officeholders” Dated, signed and marked as a “File Copy” but not copy of document bearing ASIC’s lodgement code |
| 446 | 1 April 1998 | Form 203 “Notification of change of office hours or address of one or more corporations” Dated and signed but not copy of document bearing ASIC’s lodgement code |
| 447 | 27 January 1998 | Form 370 “Notification of officeholder of resignation or retirement” Dated and signed but not copy of document bearing ASIC’s lodgement code |
| 508 | 31 May 1999 | Form 902 “Notification of information supplementary to a form or document previously lodged” Dated and signed but not copy of document bearing ASIC’s lodgement code |
| 509 | 2 March 2000 | Form 902 “Notification of information supplementary to a form or document previously lodged” Dated and signed but not copy of document bearing ASIC’s lodgement code |
For the reasons that I have given in relation to Document 541, I am in a state of uncertainty as to whether the information is available to the public from ASIC. I have no direct evidence that it is, or is not, available from ASIC. In relation to all of the documents listed in the table, it is information of a type and the documents are of a type that would reasonably be expected to have been lodged given that they are completed and signed. It relates to events in a company’s history that must be notified to ASIC under the Corporations Act. Those marked “File Copy” would suggest that they have been lodged but I cannot take them any further. In so far as the information in the documents might relate to LME1, which is a deregistered company, I note that ASIC has the power to dispose of records or to destroy them in accordance with
s 1274(10) of the Corporations Act.[170] Its powers are curtailed by the lodgement date of the documents but, given that the oldest of the documents has not yet been lodged for 15 years, it is to be expected that they would not have yet been destroyed if they have been lodged. The ATO has not satisfied me that the documents other than Document 78 is exempt under s 38 of the FOI Act because I am not satisfied that the information, which is protected information, is not excluded from the prohibition under s 355-45. That is to say, I am not satisfied that its disclosure is prohibited by
s 355-25. Therefore, the exemption in s 38 does not apply.[170] “ASIC may, if in the opinion of ASIC it is no longer necessary or desirable to retain them, destroy or dispose of:
ATTACHMENT F
DELETION: section 22
The section
Section 22 provides for the deletion of exempt matter or irrelevant material. In this instance, it is relied upon only for the deletion of what is claimed to be irrelevant material.[171] Therefore, I have set out its provisions only in so far as they relate to that. Section 22(1) provides:
[171] A claim that s 22 applies is often framed in terms of documents’ being exempt under s 22 or that an exemption under s 22 is claimed. This is not accurate. Section 22 is a tool and not a barrier. It is a tool that must be used if it is reasonably practical to use it in the sense understood in s 22(1)(c) and if the outcome will be a document that does not contain exempt matter or information irrelevant to the request. I gave my reasons for reaching this conclusion in Re Lobo and Department of Immigration [2011] AATA 705 at [418]-[420]
“Where:
(a)an agency or Minister decides:
(i)not to grant a request for access to a document on the ground that it is not 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.”
What is “possible” and what is “reasonably practical”?
What is meant by the word “possible” as used in s 22(1)(b)? Its ordinary meanings include “… 1 achievable; able to be done … 2 capable of happening …”.[172] The ordinary meanings of the word “practicable” include
“…1 capable of being done, used or successfully carried out; feasible…”.[173] The word “practical” has the same meanings:[172] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[173] Chambers 21st Century Dictionary, Revised Edition, 1999
“… But practical has the further connotation of ‘efficient, sensible, useful’ and is therefore more judgemental. …”[174]
[174] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
It seems to me that the two words have been chosen carefully. The word “possible” is used in s 22(1)(b) because the sole focus of the enquiry is whether deletions are able to be made to a document that would otherwise an exempt document with the result that it is no longer an exempt document.[175] Workload considerations are not relevant at this point for the sole enquiry is whether it is “possible” to make a copy that would not be an exempt document or disclose information irrelevant to the request. They become relevant in considering what is “reasonably practical”.
[175] It is not relevant under s 22(1)(b) to consider the work involved in deciding whether other grounds of exemption may be claimed: Re Carver and Department of the Prime Minister and Cabinet (1987) 6 AAR 317; 12 ALD 447 at 329; 459 per Deputy President Hall, Senior Member Renouf and Mr Taylor, Member
A. What is “possible”?
On the face of the provision, it is not relevant to enquire whether the resulting document would make sense to a reader or whether it would be misleading. Section 22(1)(b) appears to focus on the mechanical task of deleting that which makes the document an exempt document from that which does not. Deletion is the only tool that may be used and so, for example, rewriting or reordering the document in any way is not contemplated. Section 22(1)(b) does not appear to focus on whether the material in the document that remains after the deletions have been performed makes any sense.
In Re Carver and Department of the Prime Minister and Cabinet[176] (Carver), the Tribunal cited the judgment of Beaumont J in Harris v Australian Broadcasting Corporation (No 2)[177] (Harris) as authority for the proposition that:
[176] (1987) 6 AAR 317; 12 ALD 447
[177] [1983] FCA 281; (1983) 50 ALR 567; 78 FLR 264; 5 ALD 560
“… Paragraph (b) appears to be directed to whether the exempt matter is capable of being severed from non-exempt matter without the edited copy being misleading (see Harris v Australian Broadcasting Corporation (No 2) … at 266 per Beaumont J). …”[178]
[178] (1987) 6 AAR 317; ; 12 ALD 447 at 328; 459
When I go to Harris, I cannot find any passage that introduces a requirement that the resulting copy not be misleading. Harris followed on from an earlier judgment of Beaumont J in Harris v Australian Broadcasting Corporation,[179] in which he had considered s 36 of the FOI Act. That section exempts what can loosely be described as internal working documents if disclosure under the FOI Act would be contrary to the public interest.[180] Section 36(5)[181] qualifies what may be regarded as an internal working document, as specified in s 36(1), by providing that:
[179] (1983) 50 ALR 551; 78 FLR 236; 5 ALD 545
[180] FOI Act, s 36(1)
[181] A further qualification is found in s 36(6)
“This section does not apply to a document by reason only of purely factual material contained in the document.”
In his earlier judgment, Beaumont J had referred with approval to a passage from Environmental Protection Agency v Mink[182] in which the Supreme Court had looked at Exemption 5 in the United States’ Freedom of Information Act 1966. The Supreme Court had considered the historical background to Exemption 5 deciding that it:
[182] 410 U.S. 73 (1973) at 86
“… demonstrates that Congress intended to incorporate generally the recognized rule that ‘confidential intra-agency advisory opinions … are privileged from inspection’ (under discovery law) ‘memoranda consisting only of compiled factual material or purely factual material contained in deliberative memoranda and severable from its context would generally be available for discovery by private parties in litigation with the Government. …”.[183]
[183] 410 US at 87-88, 89 and cited at (1983) 50 ALR 551; 78 FLR 236; 5 ALD 545 at 560; 245; 553
In Harris, Beaumont J referred also to a further case from the United States in which Tamm J had said:
“ The focus of the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material. It has long been a rule in this circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions. In 1974, Congress expressly incorporated that requirement into the FOIA, which now states that ‘[a]ny reasonably segregable portion of a record shall be provided … after deletion of the portions which are exempt’. 5 U.S.C. § 552(b) (Supp. V ¶2975).”[184]
[184] Cited at (1983) 50 ALR 567; 78 FLR 264; 5 ALD 560 at 569; 266; 562
Beaumont J followed this passage with the statement:
“ It would seem that the severability test which has been applied in the American courts is reflected in s. 22(1)(b) of the local Act.”[185]
[185] [1983] FCA 281; (1983) 50 ALR 567; 78 FLR 264; 5 ALD 560 at 569; 266; 562
His Honour then went on to decide whether the investigative material consisting of underlying facts could be severed from material in the nature of recommendations. On his view, one document consisted of factual material in its entirety and no issue of severability arose. With regard to the second document, he found three sections that contained factual material. Those sections could be severed from the rest of the document and access given to them. In the remaining sections of the document, he found “occasional examples of factual material” and decided he did “… not think that it is possible to sever this material from its context and it is thus not ‘purely’ factual”. Beaumont J’s reference to its not being “purely factual” was a reference to the document’s not being purely factual within the meaning of s 36(5). Had he been able to sever it, he would have been left with a document that was purely factual and so not a document coming within the compass of s 36(1) at all. On my understanding of his judgment, Beaumont J took a purely mechanical approach to the issue. It was not an approach that was determined or even influenced by whether the passages that remained after severance would be cohesive or intelligible.
The other cases to which the Tribunal referred in Carver were Re Bracken and Minister for Education and Youth Affairs[186] (Bracken) and Re Waterford and Treasurer of the Commonwealth of Australia (No 2)[187] (Waterford). In the report of Deputy President Hall’s reasons in Bracken, I can find no reference to his considering s 22 of the FOI Act. In Waterford, Deputy President Todd did consider
s 22 after he had decided that certain material was exempt under s 36 of the FOI Act. The report, which is presented with lines deleted, records his saying:[186] [1985] AATA 8; (1984) 7 ALD 243; 2 AAR 406
[187] [1985] AATA 114; (1985) 8 ALN N37
“ On the question of releasing figures alone, I accept Mr Evans’ assertion that [… two lines …] deleted. If the whole argument were released a reader would have at least some guidance as to how the figures could be used. If one were in possession of the text it would be possible, assuming one were sufficiently knowledgeable, to assess the reliability of any particular piece of data. Without the text no such assessment is possible and the figures, standing alone and with apparent imprimatur of the Treasury, assume an undeserved certainty.
Despite, then, the apparent ease with which the figures can be excised from the remainder of the document, I find that to do so would lead to the production of a highly misleading document. Section 22 does not operate in these circumstances.”[188]
[188] [1985] AATA 114; (1985) 8 ALN N37 at [67]-[68]; N47
Deputy President Todd did not give any reasons for concluding that
s 22 “… does not operate in these circumstances.” I can find none on the face of s 22. All that s 22(1)(b) requires is that it is possible to make a copy of the document with such deletions that the copy would not be an exempt document (or disclose information reasonably regarded as irrelevant to the request in appropriate circumstances). Parliament has not included misleading as a criterion in s 22(1)(b). Assuming that ss 22(1)(a) and (c) are also met, the obligation upon the agency is to make and grant access to the copy unless it is apparent that the applicant would not wish to have access to it. Section 22 does not base the obligation on any requirement that the copy not be misleading or that the agency might not wish to give access to it for some reason. Whether a document would be misleading has been considered relevant in considering the public interest test under, for example, s 36(1)(b)[189] but there is no public interest test encompassed within s 22 either expressly or impliedly.[189] McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 450; 208; 537 [80] per Callinan and Heydon JJ
To introduce a requirement in s 22 that the document from which deletions have been made not be misleading is, in my respectful opinion, to introduce a test that is not found within s 22. That conclusion fits with the structure of the FOI Act. It is concerned with access to documents and not to information as such. Therefore, an agency cannot be required to compile information that does not already exist in documentary form. The FOI Act excludes from its compass documents of certain types or having certain characteristics such as those available under the Archives Act 1982[190] or in the memorial collection within the meaning of the Australian War Memorial Act 1980.[191]
[190] FOI Act, s 12(1)(a)
[191] FOI Act, s 13(1)(a)
The only time that the FOI Act concerns itself with information in documents comes in Part IV when it sets out the criteria for determining exempt documents. Some of those exemption provisions are framed in terms of the characteristics of the documents rather than the information they contain. The Cabinet document exemption in s 34 provides a ready example of that. Others are based on the effect that their disclosure would, or could reasonably be expected to, have. Here, the information contained in the document is crucial for it is the effect of the disclosure of that information that is assessed. Section 43 providing an exemption for documents relating to business affairs is an example and so too is s 45 relating to documents containing material obtained in confidence. If the documents are exempt under Part IV, that is an end of the matter. If the information they contain is such that it is not exempt under Part IV, the FOI Act does not allow the agency to question whether the information makes sense or whether the person having access will be able to understand it or will be misled by it. If the question is not asked in those circumstances, it would seem inconsistent to read such a question into s 22(1)(b) or
s 22 generally, which only arises after issues of exemption have been decided.
B.What is “reasonably practicable”?
Workload considerations become relevant under s 22(1)(c). It requires a consideration of whether the work is reasonably capable of being done, and so practicable, having regard to the nature and extent of the work involved in deciding on and making the deletions and the resources available to do the work. Whether it is “reasonably” capable of being done depends upon whether it is:
“… 1 sensible; rational; showing reason or good judgement. … 3 in accordance with good reason. 4 fair or just; moderate; not extreme or excessive. …”[192]
[192] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Again, that enquiry does not extend to a consideration of whether the document that remains after the deletions have been made will make sense to a reader. Had that been a relevant consideration, Parliament would not have limited the matters to which regard is to be had i.e. to the nature and extent of the work involved in deciding on and making the deletions and the resources available to do that work. Parliament could have chosen, for example, the words “reasonably practical”. Arguably, they might have, although not necessarily, introduced concepts of sensibility and usefulness and not simply those of capability of being done and feasibility that accompany the chosen word: “practicable”.
The documents
The Commissioner decided that Documents 35, 550, 675, 676 and 677 as shown in the Updated Schedule of Documents in Dispute dated 1 December 2011 contain information irrelevant to the requests for access. I have considered each of them and their description and my findings and decision about each of them is set out below. In reaching my decisions, I have kept in mind the terms of the requests:
(1)Document 35:Spreadsheet/Table titled Mining Schemes (ATO.003.0248) – released in part
I am satisfied that the information kept from disclosure to Pratt Holdings relates to investigations of the activities of an entity or entities other than Pratt Holdings. To the extent that the document contains that information, it does not come within the terms of either request and would reasonably be regarded as irrelevant to them. Therefore, access should be given to a copy from which that information has been deleted in the manner already decided upon by the Commissioner.
(2)Document 550: Memorandum entitled Office Minute – Briefing Document on Pratt Group Audit & Objections to P Duffus and K Fitzpatrick
(ATO.KB.001.003) – released in part
I agree with Mr Shaw’s description of the content sought to be deleted from this document i.e. it is “… information in respect of other aspects of the operation of the Pratt Group investigated by the ATO.”[193] It is not information about aspects of the operation of LME1 or about any other aspect of the information described the two requests. Therefore, the Commissioner has correctly made the decision to delete that information as irrelevant under s 22 of the FOI Act.
[193] Exhibit 6 at [17.2]
(3)Document 675: Report entitled Priority Technical Issue Proposal – File REF - … from Crowne C of Australian Taxation Office (ATOe.001.0001) – released in part
(4)Document 676: Report entitled Priority Technical Issue Proposal from Crowne C of Australian Taxation Office (ATOe.001.0025) – released in part
(5)Document 677: Report entitled Priority Technical Issue Proposal from Crowne C of Australian Taxation Office (ATOe.001.0036) – released in part
The sole piece of information sought to be deleted is a reference on pages 9, 8 and 8 respectively of the documents to identification numbers for data held on the ATO’s computer system.[194] This is not information falling within the scope of the two requests and is properly deleted under s 22.
[194] See also Exhibit 6 at [17.3]
For these reasons, I affirm the Commissioner’s decision in so far as it relates to the five documents claimed to contain irrelevant material within the meaning of s 22 of the FOI Act.
ATTACHMENT G
DECISION
For the reasons I have given above, I:
(1)affirm that part of the decision of the respondent dated 2 December 2010 affirming its earlier decision dated 28 September 2008 except in so far as it claims exemption either in whole or in part for the documents identified in the Schedule of Documents dated 1 December 2011 equating to Documents 519, 541, 78, 435, 437, 438, 440, 445, 446, 447, 508 and 509 as identified in the Schedule of Documents dated 24 November 2011; and
(2)in relation to that part of the decision of the respondent dated 2 December 2010 affirming its earlier decision dated 28 September 2008 that claims exemption either in whole or in part for the documents identified in the Schedule of Documents dated 1 December 2011 equating to Documents 519, 541, 78, 435, 437, 438, 440, 445, 446, 447, 508 and 509 as identified in the Schedule of Documents dated 24 November 2011:
(a)set aside that part of the decision; and
(b)substitute a decision that:
(i)Document 519 is excluded from access under s 12 of the Freedom of Information Act 1982; and
(ii)Documents 541, 78, 435, 437, 438, 440, 445, 446, 447, 508 and 509 are not exempt under s 38 of the Freedom of Information Act 1982.
I certify that the two hundred paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....................................................................
Leah Berardi, Associate
Dates of Hearing 28, 29 and 30 November 2011
Date of Decision 16 December 2011
Counsel for the Applicant Mr J PizerSolicitor for the Applicant Ms Z Herr
Deloitte Lawyers
Counsel for the Respondent Mr S Rebikoff
Solicitor for the Respondent Ms J Kowalewska
Australian Government Solicitor
[1] The requests are set out in Attachment A.
Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 in proceedings
No. 5419 of 2010 (5419T documents) at 26
Fuel Tax (Consequential and Transitional Provisions) Act 2006 (FTCTP) Act, Act No 73 of 2006,
s 3 and Schedule 5, item 49 and s 2
(d) documents that materially support another party’s case.”: Practice Note TAX 1 at [6.1] “… Documents that materially affect or materially support a party’s case are documents that would enable a judge to reach a sound, complete and just decision in the case.”: Practice Note TAX 1 at [6.2]
(a) in relation to a body corporate:
(i) any return of allotment of shares for cash that has been lodged for not less than 2 years; or
(ii) any balance-sheet that has been lodged for not less than 7 years or any document creating or evidencing a charge, or the complete or partial satisfaction of a charge, where a memorandum of satisfaction of the charge has been registered for not less than 7 years; or
(iii) any other document (other than a constitution or any other document affecting it) that has been lodged or registered for not less than 15 years; or
(c) any document a transparency of which has been incorporated with a register kept by ASIC.”
A transparency is defined in s 9 of the Corporations Act and relates to a photograph.
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