Rossi and Commissioner of Taxation (Taxation)
[2015] AATA 601
•10 July 2015
Rossi and Commissioner of Taxation (Taxation) [2015] AATA 601 (10 July 2015)
Division: TAXATION AND COMMERCIAL DIVISION
File Number: 2015/2705
Re: GIUSEPPE ROSSI
APPLICANT
And:COMMISSIONER OF TAXATION
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 10 July 2015
Date of written reasons 17 August 2015
Place Melbourne
The Tribunal decided on 10 July 2015 that it had no jurisdiction to review the respondent’s decision to issue garnishee notices.
…[sgd] S A Forgie…….
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – whether reviewable objection decision – whether objection decision – no provision permitting applicant to request review of garnishee notice
LEGAL PRINCIPLES – right to apply for review cannot be drawn from international law unless incorporated in Australian domestic law
LEGISLATION
Administrative Appeals Tribunal Act 1975; sections 3, 25, 29, 43, 69A
Administrative Decisions (Judicial Review) Act 1977; section 10
Australian Human Rights Commission Act 1986; sections 3, 11, 47
Commonwealth of Australia Constitution Act; sections 5, 51, 75
Crimes Act 1914; section 24F
Income Tax Assessment Act 1936; sections 166, 175A
Public Service Act 1999; sections 7, 13, 22, 72
Taxation Administration Act 1953; sections 14ZL, 14ZQ, 14ZS, 14ZU, 14ZW, 14ZY, 14ZYA, 14ZZ and Schedule 1: s 250-5, 255-5, 255-10, 255-15, 255-20, 260-5, 260-15, 260-20
Tribunal’s Amalgamation Act 2015; section 3, Item 40CASES
Gould v Brown [1998] HCA 6; 193 CLR 346; 151 ALR 395; 72 ALJR 375
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353
Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391
The King v Commonwealth Court of Conciliation and Arbitration [1949] HCA 33; (1949) 78 CLR 389
OTHER MATERIAL
International Covenant on Civil and Political Rights; Articles 2, 3, 12, 13, 14, 26
Explanatory Memorandum to the Tribunals Amalgamation Bill 2015
Fundamental Legal Concepts Wesley Newcomb Hohfeld, 4th edition, 1919, 4th printing 1966, Yale University Press
REASONS FOR DECISION
On 5 May 2015, the Australian Taxation Office (ATO) wrote to Mr Rossi advising him that it had issued a garnishee notice to the Bank of Queensland (BoQ) and another to Computershare Investor Services Pty Limited (Computershare). The ATO had done so because its records showed that $6,422.00 remained unpaid despite its having previously requested payment of that amount. On 1 June 2015 Mr Rossi lodged an application for review of the decision. Mr Rossi gave written reasons in support of his contention that the Tribunal had jurisdiction to consider his application. In order to consider those reasons and the matter generally, I listed a hearing by telephone. A notice listing the matter for 10 July 2015 at 10.00 am was sent by email to both Mr Rossi and the Commissioner of Taxation (Commissioner) on 1 July 2015. Mr Rossi did not answer his telephone at or about 10.00 am on 10 July 2015 and there was no facility to leave a voice message. When a second attempt to contact him was also unsuccessful, I proceeded to contact Ms Bui, who represented the Commissioner. I dismissed Mr Rossi’s application on the basis that the Tribunal does not have jurisdiction to review the decision to issue garnishee notices to the BoQ and to Computershare. By email dated 21 July 2015, Mr Rossi asked me for written reasons for my decision and I now set them out.
MR ROSSI’S SUBMISSIONS
The essence of Mr Rossi’s submissions began with the proposition that the Tribunal is bound to apply the laws of the Commonwealth. He cited cl 5 of the Commonwealth of Australia Constitution Act 1900 (UK)[1] (the Imperial Act) which provides, in so far as it is relevant in this matter:
“This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; …”
[1] 63 & 64 Victoria; Chapter 12
Mr Rossi then drew my attention to s 13(4) of the Public Service Act 1999 (PS Act) which, he submitted, binds the Tribunal. Section 13(4) provides:
“An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means:
(a)any Act (including this Act), or any instrument made under an Act; or
(b)any law of a State or Territory, including any instrument made under such a law.”
An “APS employee” is either a person engaged under s 22 of the PS Act or a person engaged as an APS employee under s 72 of that legislation.[2]
[2] PS Act; s 7
It follows from that, Mr Rossi submitted, that the Tribunal is bound to apply four particular laws that he summarised as follows:
“a. Administrative Appeals Tribunal Act 1975, Part IV – The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
b.Administrative Decisions Act 1977, section 10 Additional conferred rights not derogated to seek review in a Tribunal.
c.the Crimes Act 1914 section 24F, to point out in good faith administrative decisions errors and defects with a view of reformation of those errors and defects.
d.Australian Human Rights Commission Act 1986, International Covenant on Civil and Political Rights, Part II, Article 2: a person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities.
e.Public Service Act 1999, section 13(4) must comply with all applicable Australian laws.”[3]
[3] Mr Rossi in a letter dated 21 July 2015 sent by email.
To deny a right or review, Mr Rossi submitted, would be to act in breach of Article 2 of the International Covenant on Civil and Political Rights (ICCPR), to deny natural justice and to engage in behaviour found in third world countries governed by totalitarian dictatorships.
REASONS FOR FINDING TRIBUNAL LACKS JURISDICTION
The Constitution
As Mr Rossi submitted, the effect of cl 5 of the Imperial Act is that I am bound by all of the laws made by the Commonwealth Parliament under the Constitution. The Constitution of the Commonwealth (Constitution) is set out in cl 9.
Using its power under s 51(ii) of the Constitution, the Commonwealth Parliament has made:
“… laws for the peace, order, and good government of the Commonwealth with respect to:
(i)…
(ii)taxation; but so as not to discriminate between States or parts of States;
…”
In addition to that power, s 51(xxxix) of the Constitution also gives the Commonwealth Parliament power:
“… to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xxxix)matters incidental to the execution of any power vested by this Constitution in the Parliament in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officers of the Commonwealth.”
The expression “officer of the Commonwealth” has been considered when it appears in the context of s 75(v) of the Constitution. Section 75(v) provides that the High Court has original jurisdiction “In all matters: … in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth …”. The High Court has held that an officer or Judge of a federal body whether exercising federal or state powers[4] is an “officer of the Commonwealth” just as a Minister comes within that description. Clearly, the breadth of the expression is broad and it must be so. Any narrower interpretation:
“… would seriously undermine the effectiveness of s 75(v) as a provision of cardinal importance for upholding the rule of law in the Commonwealth. …”[5]
[4] Gould v Brown [1998] HCA 6; 193 CLR 346; 151 ALR 395; 72 ALJR 375 at [144]; 431-432; 447; 414-415 per McHugh J citing Re Cram [1987] HCA 28; (1987) 163 CLR 117 at 128-129 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.
[5] Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [321]; 498 per Kirby J
The interpretation is broad enough to include the Tribunal and its officers and members. It is in no different position from the Commonwealth Court of Conciliation and Arbitration considered by the High Court in cases such as The King v Commonwealth Court of Conciliation and Arbitration.[6] That body has undergone changes but, despite those and despite the difference in their names, the analogy between it and the Tribunal remains sound. Both are statutory tribunals whose jurisdiction was, or is, defined by statute and, in determining a dispute (however described), whose members did, or do, not exercise judicial power. As the Judges of the Commonwealth Court of Conciliation and Arbitration were found to be officers of the Commonwealth,[7] so too must members of the Tribunal and its officers and employees.
Laws of the Commonwealth Parliament relied on by Mr Rossi
[6] [1949] HCA 33; (1949) 78 CLR 389; Latham CJ, Rich, Dixon, McTiernan and Webb JJ
[7] [1949] HCA 33; (1949) 78 CLR 389 at [6]; 399
A. ADJR Act
Mr Rossi referred to s 10 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) and, in particular, to the text of s 10(1)(a). That provides:
“The rights conferred by sections 5, 6 and 7 on a person to make an application to the Federal Court or the Federal Circuit Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision:
(a)are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the court, or by another court, or by another tribunal, authority or person, of that decision, conduct or failure; …”
As is clear from the provision, it ensures that rights given to a person to apply to the Federal Court or the Federal Circuit Court for review of a decision under the ADJR Act are not diminished in any way by the fact that the person may have other avenues by which he or she may seek review of the decision. Mr Rossi, however, does not seek to exercise his rights under the ADJR Act to seek review of the Commissioner’s decision. He has taken advantage of his right to apply to the Tribunal for review of the decision. The fact that he could have chosen to go to the Federal Court or the Federal Circuit Court for review of the Commissioner’s decision has no effect on the Tribunal’s powers to review the decision. Section 10 is relevant only in determining the powers of the Court and not those of the Tribunal.
B. Crimes Act
Mr Rossi drew my attention to s 24F of the Crimes Act 1914 (Crimes Act). Section 24F(1)(b) provides:
“Nothing in the preceding provisions of this Part makes it unlawful for a person:
(a)…
(b)to point out in good faith errors or defects in government, the constitution, the legislation or the administration of justice of or in the Commonwealth, a State, a Territory or another country, with a view to the reformation of those errors or defects;
(c)-(e) …”
Section 24(2) qualifies s 24(1)(a) by prescribing certain circumstances in which an act or thing is not done in good faith.
Section 24F(1)(b) does not in itself limit or extend Mr Rossi’s rights given under a Commonwealth law to apply for review of a decision. It does not confer on Mr Rossi any right to apply for review of a particular decision. It is directed only to his “pointing out” in good faith errors or defects in government, the constitution, the legislation or the administration of justice. A provision that ensures that any actions that he takes in that regard are not to be regarded as unlawful cannot be read as conferring on him a right to apply for review of a particular decision made under a particular piece of legislation.
C. Australian Human Rights Commission Act
C.1 ICCPR
Finally, Mr Rossi relied on Article 2 of the ICCPR. In so far as it is relevant Article 2.3 provides:
“Each State Party to the present Covenant undertakes:
(a)To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.”
In his submissions, Mr Rossi has extracted the following passage from Article 2.3(b) and highlighted words in the following way:
“… a person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities.”
When read in this way and with the emphasis Mr Rossi has given to particular words, it might be thought that any person claiming a remedy of any sort has a right to have his or her claim determined by an administrative authority.
That, however, is not what Article 2.3(b) says. Article 2.3(b) says that each State Party to the ICCPR undertakes to ensure that a person has the rights and freedoms recognised in the Convention and has remedies available to enforce those rights and freedoms. An undertaking of this sort does not mean that the rights and freedoms specified in the ICCPR become part of Australia’s domestic law as a matter of course. They become part of Australia’s domestic law only if that law provides that is the case. The rights and freedoms are set out in Part III of ICCPR. Putting aside Articles such as Articles 12 and 13 that are directed to freedom of movement and continuing presence in a country, Articles 3, 14 and 26 of Part III are directed specifically to the law as is Article 2.1. In so far as they are relevant, these Articles provide:
(1)Article 3: “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.”
(2)Article 14.1: “All persons shall be equal before the courts and tribunals.” Finally, Article 26 begins with the statement that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. …”.
(3)Article 26: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. …”
C.2 The relevance of an international convention in Australian law
18. The ICCPR has an impact on the content of Australian law in three ways. The first way is a direct way. Like any international treaty to which Australia is a party, the ICCPR has force in domestic law to the extent that its provisions have been incorporated in our municipal law. The reason for this is set out in the joint judgment of Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh[8] (Teoh):
“… This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fill within the province of Parliament, not the Executive … So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. …”[9]
[8] [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353; Mason CJ, Deane, Toohey and Gaudron JJ, McHugh J dissenting
[9] [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353 at [25]; 287; 361-362 (citations omitted)
The second way is less direct but it arises in the interpretation of the statutory and regulatory law:
“… Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party …, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.”[10]
[10] Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353 at [26]; 287; 362 per Mason CJ and Deane J (citation omitted)
The third way relates to the development of the common law as it applies in Australia:
“… The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law …. But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials …. Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law.”[11]
[11] Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353 at [28]; 288; 362-363 per Mason CJ and Deane J (citation omitted)
Putting the content of the law to one side, an international treaty may also be relevant in administrative decision-making by the executive arm of government. The foundation of its relevance lies in the fact that:
“… [R]atification of a convention is a positive statement by the executive government of this country to the world and to all Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention ...”[12]
[12] Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353 at [34]; 291; 365 per Mason CJ and Deane J (citation omitted)
To have a legitimate expectation of this sort is very different from saying that a person has the equivalent right. As Mason CJ and Deane J pointed out:
“The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of the unincorporated convention into our municipal law by the back door. …”[13]
What the existence of a legitimate expectation requires of a decision-maker is to give notice and an adequate opportunity of presenting a case or reasons against taking such a course.[14]
[13] Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353 at [36]; 291; 365
[14] Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353 at [37]; 291-292; 365
C.3 The ICCPR is not part of Australia’s domestic law
The ICCPR forms Schedule 2 to the Australian Human Rights Commission Act 1986 (AHRC Act) but the extent to which it forms part of the municipal law of Australia must be determined by reference to the content of the legislation itself. I will begin with s 11 of the AHRC Act for it gives the Australian Human Rights Commission (AHRC) a number of functions and this Tribunal none. If the AHRC thinks it appropriate to do so, one of those functions is to endeavour, by conciliation, to effect a settlement of the matters that give rise to an inquiry into any act or practice that may be inconsistent with, or contrary to, any human right.[15] The expression “human rights” includes, among others, rights and freedoms recognised in the ICCPR.[16] That does not make the ICCPR part of Australia’s domestic law as such. It is a reference point for defining the rights and freedoms that will be regarded as being within the expression “human rights” used in the AHRC Act. In this way, the ICCPR is no different from a convention that is the subject of a Minister’s declaration under s 47. Under s 47 of the AHRC Act, the Minister may declare an international instrument ratified by, acceded to or adopted by Australia to be an international instrument relating to human rights and freedoms for the purpose of the legislation. A declaration of that sort does not make the international instrument part of the domestic law of Australia.[17] It follows that the ICCPR is not part of the domestic law of Australia. The Tribunal has no role to play under the AHRC Act.
[15] HRC Act; s 11(1)(f)(i)
[16] HRC Act; s 3(1)
[17] Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353 at [25]; 287; 362
In keeping with its obligations under the ICCPR, Parliament keeps human rights in mind when enacting legislation that affects the rights of persons and their access to the law. Legislation dealing with particular subject areas will have regard to other relevant Articles of the ICCPR. Parliament may, for example, be mindful of Articles such as Articles 12 and 13 when enacting law relating to migration,[18] Article 2.3 when conferring rights or imposing duties to ensure that there are remedies for their enforcement and Article 7 when legislating for detention or imprisonment to ensure that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
[18] Article 12:
C.4 Indirect influence of the ICCPR on Australia’s domestic law
That this is the general approach in legislative drafting is illustrated by reference to [36] of the Explanatory Memorandum to Tribunals Amalgamation Bill 2015, which amended the Administrative Appeals Tribunal Act 1975 (AAT Act) and other legislation as part of the amalgamation of four tribunals into the Tribunal. Paragraph [33] listed the human rights which had been “engaged” by the Bill and which were to be found in the ICCPR,[19] the Convention on the Rights of the Child[20] and the Convention on the Rights of Persons with Disabilities.[21] The paragraph refers to the Bill’s “engaging” those human rights for there was no proposal to incorporate each of the human rights it identified word for word as part of Australia’s domestic law. Rather, it was intended that, following its amendment by the Tribunals Amalgamation Act 2015, the AAT Act be in step or in harmony with the human rights identified in [33] of the Explanatory Memorandum.
[19] Articles 2.3, 14.1, 14.3, 17 and 19
[20] Articles 3 and 12
[21] Article 13
It follows that the Tribunal applies the law as it has been enacted by the Parliament and not as it appears in the ICCPR. The Tribunal must, of course, ensure that its procedures are such that they accord with the human rights set out in the ICCPR. It must, for example, treat those who apply to it without discrimination consistently with Articles 14.1 and 26 but it will do so by simply applying the law that Parliament has enacted. That law specifies those who may apply to it for review of a decision and I will now turn to how they are identified.
Laws of the Commonwealth providing for an application to be made to it for review of a decision by the Tribunal
A. General principles
A.1 Right to make an application for review of a decision
The AAT Act is a law of the Commonwealth of the sort referred to in Cl 5 of the Imperial Act. Section 25(1) of that legislation provides:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”
Section 25(1) provides that an enactment may provide that applications may be made to the Tribunal for review of decisions of the sort it goes on to describe in paragraphs (a) and (b). The reference to “an enactment” in s 25(1) of the AAT Act (emphasis added) means that the AAT Act may itself provide that an application may be made to the Tribunal for review of a decision made in the exercise of powers it confers.[22] More generally, the provision is to be found in another enactment be it an Act or, in some instances, an Ordinance or any instrument made under any such Act or Ordinance.[23]
[22] It does so in s 69A(2) where it provides that either party to a proceeding may apply to the Tribunal for review of the taxed amount decided upon by an officer of the Tribunal after taxing costs in accordance with s 69A(1).
[23] AAT Act; s 3(1): definition of “enactment”. Separate provision may be made in the regulations for review of decisions conferred in the exercise of powers conferred by a Norfolk Island enactment: AAT Act; s 25(2).
Section 25(3) goes on to provide that, when an enactment makes provision in accordance with s 25(1), it “shall specify the person or persons to whose decisions the provision applies”. The provision may be expressed to apply to all decisions of that person or to a class of those decisions and it may specify conditions subject to which applications may be made.[24]
A.2Tribunal’s power to review a decision in respect of which an application has been made to it
[24] AAT Act; s 25(3)(b) and (c)
It is one thing to provide that an application may be made to the Tribunal and another to say that the Tribunal has power, authority or duty, however described, to review it. In the absence of an express statement that it does so, its power, authority or duty must be implied from various factors.[25] The first factor is that provision is made for an application for review to be made to it. When that provision is made, a right or privilege will be conferred on persons within the terms of that provision.
[25] Until its amendment by the Tribunals Amalgamation Act 2015 with effect from 1 July 2015, s 25(4) of the AAT Act provided that “The Tribunal has power to review any decision in respect of which application is made to it under any enactment.” This provision was repealed by Item 40 of s 3 and Item 40 of Schedule 1 to the Tribunals Amalgamation Act 2015. The explanation for its removal was given in the Explanatory Memorandum when it said:
A right given by the law to one person necessarily means that there must be a duty or obligation imposed on another.[26] Although that duty or obligation has not been expressly conferred upon the Tribunal, provisions of the AAT Act show that the duty or obligation must have been imposed on it by implication. Those provisions confer powers upon it to determine particular issues relating to, or aspects of, an application or review of a decision that is the subject of an application for review.
[26] See Hohfeld at 35-60
Section 29(7) is an example of the former type of power when it provides:
“The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”
An example of the latter type of power is found in s 25(4A):
“The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.”
Section 43(1) provides an even clearer example in providing:
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and;
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
B.Has an enactment provided for applications to the Tribunal for review of Commissioner’s decision to issue a garnishee notice?
B.1 Tax Administration Act: reviewable objection decision
Section 14ZZ(1) of the Taxation Administration Act 1953 (TAA) is a provision of the sort contemplated by s 25(1) of the AAT Act. Section 14ZZ(1)(a)(i) provides:
“If the person is dissatisfied with the Commissioner’s objection decision … , the person may:
(a)if the decision is a reviewable objection decision – either:
(i) apply to the Tribunal for review of the decision; …
(ii) …”
As required by s 25(3)(a) of the AAT Act, it has specified the person to whose decision the provision applies: the Commissioner. As permitted by s 25(3)(b), s 14ZZ(1)(a)(i) of the TAA also specifies the class of decision in relation to which an application may be made to the Tribunal. The class of decision is “the reviewable objection decision”.
Not every decision made by the Commissioner comes within the description of a “reviewable objection decision”. A “reviewable objection decision” is an “… objection decision that is not an ineligible income tax remission decision.”[27] Whether a particular decision made by the Commissioner or his delegate is a reviewable objection decision requires an examination of the particular decision that is said to be an objection decision.
[27] TAA; s 14ZQ
B.1.1 objection decision
Before I do that, I need to understand what is meant by an “objection decision”. It is a decision made by the Commissioner when a person has objected against a taxation decision.[28] A person may only object if Part IVC of TAA or if a provision of an Act or regulations provides that a person who is dissatisfied with an assessment, determination, notice or decision may object against it in the manner set out in that Part.[29] An example has its foundation in the Commissioner’s power to make an assessment of the amount of tax a person is liable to pay or an assessment that no tax is payable by the person.[30] Underlying the Commissioner’s assessment is his decision to make it. That decision is not, however, an objection decision but simply a decision.
[28] TAA; ss 14ZY and 14ZYA
[29] TAA; s 14ZL(1)
[30] Income Tax Assessment Act 1936; s 166
Once the Commissioner has made an assessment, though, I can move to s 175A of the Income Tax Assessment Act 1936 (ITAA36). It provides that:
“A taxpayer who is dissatisfied with an assessment made in relation to the taxpayer may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.”
Division 3 of Part IVC of the TAA is concerned with objections of the sort provided for by s 175A of ITAA36 i.e. taxation objections. Section 14ZU of TAA sets out what a person must do to make a taxation objection:
“A person making a taxation objection must:
(a)make it in the approved form; and
(b)lodge it with the Commissioner within the period set out in section 14ZW; and
(c)state in it, fully and in detail, the grounds that the person relies on.
Note: …”
There are qualifications to the general position to be found in ss 14ZU to 14ZB but they are not relevant in this context.
Section 14ZW sets out when taxation objections are to be made. Subject to any extensions of time permitted by the Commissioner under ss 14ZW and 14ZX and except in the case of amended assessments where only two years is permitted, a taxpayer has four years from the date of being given a notice of assessment in which to make a taxation objection under s 175A of ITAA36.[31] The Commissioner is required by s 14ZY of the TAA to decide taxation objections. His decision is an “objection decision”.[32]
[31] TAA; s 14ZW(1)
[32] TAA; s 14ZY(2)
B.1.2ineligible income tax remission decision
An “ineligible income tax remission decision” is an objection decision of the particular type described in s 14ZS. In general terms, it is an objection decision that relates to the remission of additional tax payable by a taxpayer under ITAA36 unless the additional tax is payable under certain provisions of ITAA36 set out in s 14ZS(1). It is not necessary to examine the exceptions and qualifications for the purpose of my example. Provided that the objection decision does not come within this description, it is a reviewable objection decision.
B.2 Is a decision to issue a garnishee notice a reviewable objection decision?
Applying these principles, if Mr Rossi is entitled to apply for review of the Commissioner’s decision to issue a garnishee notice, that decision must be a reviewable objection decision. Given that it is clearly not a decision relating to the remission of additional taxation in any way, it can only be a reviewable objection decision if it is an objection decision.
Part 4.15 of the TAA provides for the collection and recovery of tax-related liabilities. A tax-related liability is:
“… a pecuniary liability to the Commonwealth arising directly under a *taxation law (including a liability the amount of which is not yet due and payable).
Note 1: …”
Tax-related liabilities are identified in s 250-10 of TAA. A tax-related liability may arise for an entity, or become payable by an entity, before it becomes due and payable by that entity.[33] For some tax-related liabilities, the Commissioner must make an assessment before it becomes due and payable.[34]
[33] TAA; ss 250-5(1) and (3)
[34] TAA; s 250-5(2)
An amount of a tax-related liability that is due and payable is a debt due to the Commonwealth and is payable to the Commissioner.[35] The Commissioner may sue to recover an amount of tax-related liability[36] but also has power to defer payment,[37] permit payment by instalments or, in certain circumstances,[38] to bring forward the time for payment.[39]
[35] TAA; s 255-5(1)
[36] TAA; s 255-5(2)
[37] TAA; s 255-10
[38] TAA; s 255-15
[39] TAA; s 255-20
Among the Commissioner’s powers to recover the amount of a tax-related liability are those under Division 260-A to recover amounts from a third party. He may do so if an amount of tax-related liability, a judgment debt for a tax-related liability or costs for such a judgment debt is payable to the Commonwealth by an entity. The Commissioner may also do so if an amount ordered by a court following a conviction for an offence against a taxation law is payable.[40] The entity in these circumstances is described as the “debtor”. The Commissioner may give a notice to another entity, known as the “third party” if the third party owes, or may later owe, money to the debtor. Section s 260-5(3) sets out the circumstances in which the third party is taken to owe money to the debtor. One of those circumstances arises if the third party holds money for or on account of the debtor.[41] That is the situation in which BoQ finds itself. The Commissioner has, under s 260-5(2) issued a notice to BoQ in the form of a garnishee notice. Under s 260-20(1), BoQ is obliged to comply with the notice. Section 260-15 provides that it is indemnified for the payment it makes.
[40] TAA; s 260-5(1)
[41] TAA; s 260-5(3)(b)
There is nothing in Subdivision 260-A to the effect that the entity liable to pay the tax-related liability is entitled to object to the decision to issue the notice to the third party. Therefore, the Commissioner may not make an objection decision and Mr Rossi is not entitled to make an application to the Tribunal for review of the Commissioner’s decision to issue the garnishee notice to BoQ.
It may be that Mr Rossi would have been entitled to object to earlier decisions made by the Commissioner in assessing the amount of tax that he was liable to pay. Had he taken advantage of any entitlement of that sort, the Commissioner would have made an objection decision on his objection. Providing it was not an ineligible income tax remission decision, it would have been a reviewable objection decision and Mr Rossi would have been entitled to apply for its review in the Tribunal. That would have been the opportunity to consider whether the Commissioner had properly assessed his tax-related liability.
DECISION
For the reasons I have given, the TAA does not give Mr Rossi any opportunity to seek review of the Commissioner’s decision to issue a garnishee notice. Consequently, Mr Rossi is not entitled to lodge an application for review of his decision and the Tribunal does not have jurisdiction to review that decision.
I certify that the forty seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: …………[sgd]......................................................
Associate
Date of Hearing by Telephone 10 July 2015
Date of Decision 10 July 2015
Date of written reasons 17 August 2015
Self-represented Applicant Mr G Rossi
Solicitor for the Respondent Ms D Bui
ATO Dispute Resolution
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.”
Article 13:
“An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”
“362. Existing subsection 25(4) provides that the Tribunal has power to review any decision in respect of which an application is made under another enactment. This statement is essentially declaratory, as subsection 25(1) provides that other enactments may provide for applications to be made to the Tribunal for review of decisions.
363. The repeal of this provision would not change the existing scope of the Tribunal`s jurisdiction or powers.”
While this is true, the advantage of s 25(4) was that it provided a clear statement that could be easily understood. In the absence of that clear statement, the Tribunal’s authority can only be understood by reference to principles of jurisprudence (or the science of law) set out in texts such as Fundamental Legal Concepts Wesley Newcomb Hohfeld, 4th edition, 1919, 4th printing 1966, Yale University Press (Hohfeld).
Key Legal Topics
Areas of Law
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Tax Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Judicial Review
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Standing
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Statutory Construction
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