Schokker & Anor v Federal Commissioner of Taxation

Hank Bernard Schokker and Jacqueline M Schokker, the applicants, sought judicial review against the Commissioner of Taxation of the Commonwealth of Australia, the respondent, over a decision not to prosecute certain officers of the Australian Taxation Office (ATO) for alleged breaches of secrecy provisions. The applicants alleged that officers had misused their access to tax information for personnel evaluations and inquiries. The Commissioner responded by stating that no prosecution would be instituted following advice from the Director of Public Prosecutions, who determined that the secrecy provisions did not prohibit the disclosure of information to other Commonwealth officers. The Commissioner's decision was communicated to the applicants in letters dated 10 April 1996 and 8 May 1996. The applicants sought to challenge this decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), and the Commissioner moved to dismiss the application on the basis that there was no reviewable decision.

The court had to determine whether the Commissioner's decision not to prosecute was a reviewable decision under the ADJR Act. The applicants argued that the decision was reviewable as it was a substantive determination that was final, operative, and determinative. They also argued that the decision was akin to a decision by the Commonwealth Director of Public Prosecutions to prosecute, which has been held to be reviewable. The Commissioner contended that the decision was not reviewable as it was an interim decision and not a final, substantive determination. The court considered the relevant statutory provisions, including the Income Tax Assessment Act 1936 (Cth) and the Taxation Administration Act 1953, and concluded that the Commissioner's decision to not prosecute was a decision under an enactment and thus reviewable. The decision was final, operative, and determinative as it prevented a further step (prosecution) from being taken.

The court found that the Commissioner's decision not to prosecute was a reviewable decision under the ADJR Act. Consequently, the Commissioner's motion to dismiss the application was refused. The court ordered that the respondent's motion dated 5 July 1996 be refused and made no order as to costs.