Rowles and Deputy Commissioner of Taxation and Australian Crime Commission [2003] AATA 589; (2003) 54 ATR 1001; (2003) 37 AAR 496 (23 June 2003)

Last Updated: 2 October 2009

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 589

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2002/86

GENERAL ADMINISTRATIVE DIVISION		)
	Re		PHILLIP ROWLES

Applicant

	And	DEPUTY COMMISSIONER OF TAXATION Respondent
	And	AUSTRALIAN CRIME COMMISSION

Joined Party

DECISION

Tribunal

The Hon C R Wright QC., (Deputy President)

Date 23 June 2003

Place Perth

Decision

The decision under review is affirmed.

(Sgd C R Wright QC)

Deputy President

CATCHWORDS

Freedom of Information - application for access to documents used for purpose of income tax assessment - "duty" of ATO to compile a list of such documents based on ss26, 37, 40, 41 and 42 of Freedom of Information Act 1982 - claims for exemption upheld.

Freedom of Information Act 1982 – ss3(2), 24A, 37

REASONS FOR DECISION

23 June 2003

The Hon C R Wright QC., (Deputy President)

BACKGROUND

1. On 29 June 2001 the applicant requested access under the Freedom of Information Act 1982 ( “the FOI Act”) to the following documents (T3):
   • Working papers index for objection decision; and
   • Working papers index for appeals review

in relation to the applicant’s amended assessment.

2. On 23 July 2001 the applicant was advised in writing (T4) of a decision by an authorised officer of the respondent, Richard McGrade, that access to these documents had been denied pursuant to s24A of the FOI Act on the basis that the documents did not exist.
3. On 27 July 2001, in a conversation between Richard McGrade and the applicant’s tax agent, it was agreed that if the applicant were to make a formal request in writing he, Mr McGrade, would compile a list of documents on the above “objection” and “appeals” folders. This was to enable the applicant to decide which specific documents he wanted to access. The tax agent indicated that he wished to refine his request in this way because of the fees and charges which would be applicable to a more wide ranging request.
4. On 1 August 2001 the applicant requested in writing “a list of correspondence in relation to the objection and appeal (including but not limited to electronic correspondence within the ATO) of the 1998 amended assessment of (the applicant)” (T5).
5. On 3 August 2001 Richard McGrade acknowledged this letter and agreed to compile a list of the documents identified in the applicant’s request (T16).
6. On 17 September 2001 Richard McGrade supplied the applicant with lists of the documents contained in the “Dispute” and “Litigation” files relating to the amended income tax assessment of the applicant for the year ended 30 June 1998 (T7).
7. On 20 September 2001 the applicant requested access to specified documents marked on copies of the lists referred to above (“the requested documents”) (T8).
8. The applicant also requested the ATO to compile a similar list in relation to other documents “in relation to the applicant’s objection and appeal” held by the ATO which were not placed on either of the “Dispute” and “Litigation” files referred to above (T11).
9. On 22 November 2001 Richard McGrade supplied the applicant with a statement pursuant to s26 of the FOI Act which identified the parts of particular requested documents in relation to which he had claimed exemption pursuant to the FOI Act (T12). The statement also advised that edited copies of the requested documents would be supplied on payment of $317.65 under the FOI (Fees and Charges) Regulations.
10. The applicant was also advised that his request of 20 September 2001 for an additional list of documents had been refused on the grounds that the FOI Act imposed no obligation on the ATO to compile such a list (T13).
11. On 18 December 2001 pursuant to s54 of the FOI Act, the applicant requested an internal review of the decision of Richard McGrade dated 22 November 2001 (T14).
12. On 14 January 2002 an authorised officer of the respondent, Ian Fraser, advised the applicant, in writing, of his decision pursuant to the request for internal review (T15). That decision was that the decision of Richard McGrade made on 22 November 2001 was consistent with the requirements of the FOI Act and (by implication) the decision by Mr McGrade was affirmed.
13. On 13 March 2002 the applicant made an application to the AAT for review of Ian Fraser’s decision of 14 January 2002 (T1).

THE APPLICATION FOR REVIEW

14. The application for review sought to challenge the review officer’s decision to exempt documents from disclosure. The applicant, through his advocate, addressed argument to each of 5 numbered paragraphs of the review officer’s decision. As a consequence of this process it became apparent during the review hearing before the Tribunal, that there were essentially 2 issues for the Tribunal to resolve. They were:
    • (a) Whether or not the correspondence between the ATO and the applicant’s tax agent created or imposed an obligation upon the tax office to create an index of documents for the perusal of the applicant to facilitate his making a decision whether or not to seek disclosure of so called “audit” documents used by the ATO in assessing his income tax liability; and
    • (b) Whether or not the ATO had correctly claimed exemption from disclosure of a number of specified documents held by the ATO. As some of these documents involved issues affecting the interests of the Australian Crime Commission (ACC) or its predecessor the National Crime Authority, the ACC was joined as a party to the proceedings prior to the AAT hearing.

THE HEARING

15. The application for review was heard in Perth, WA on 3 February 2003. The applicant was represented by his advocate Mr Richard Wytkin of C Pope and Associates, Accountants. The respondent was represented by Mr A Jenshel with Mr J Rowe of counsel. Mr S McBurney of counsel appeared for the party Joined.
16. Pre-hearing orders had been made by the late Mr R D Fayle, Senior Member, Mr M Allen, Member and Associate Professor S D Hotop, Deputy President on 5 September 2002, 18 November 2002 and 28 January 2003 respectively regarding confidential affidavit and other material pursuant to s35(2) of the Administrative Appeals Tribunal Act 1975.. I made a similar order during the hearing and, in addition, after having heard argument from Mr Wytkin during the first (public) part of the hearing, I directed, pursuant to s35(3) that the further hearing of the issues in relation to the review take place in private. I did not then, but I do now, direct that the publication of evidence given before the Tribunal and any matter contained in a document lodged with the Tribunal and received in evidence thereafter be restricted to the respondent and party joined and their legal representatives. I also confirm an order I made on 3 February 2003 directing that any transcript or record of the hearing before the Tribunal in the absence of Mr Wytkin be similarly restricted. In these circumstances I consider it inappropriate in these reasons to give any details of the affidavit and oral evidence which I received at the hearing.

THE ISSUES

17. It became clear during the course of Mr Wytkin’s address that many of the issues dealt with by the ATO review officer were not challenged. Some of these issues had been resolved to the applicant’s satisfaction by material provided in the T documents after the AAT review had been launched. Some of the issues were not regarded as sufficiently significant to pursue and were sensibly abandoned by Mr Wytkin.
18. Paragraphs 5 and 6 of the decision under review dealt with the first major issue of concern to the applicant. As already mentioned above, before August 2001 the applicant had been seeking details of documents which had been used or brought into existence in the process of the ATO reassessing his income tax liability for the year ending 30 June 1998. It was contended by the applicant that there must be a list of documents compiled by the ATO for the purpose of conducting the audit which it carried out prior to making the reassessment.
19. The respondent advised the applicant that no such list existed and that consequently it could not be made available for the applicant’s inspection. The applicant does not dispute this contention of fact, but points to correspondence between Mr Wytkin and the ATO in which the ATO agreed to “compile a list of the documents identified in your request before I determine those in respect of which exemption may be claimed. This will enable you to identify more particularly the documents you wish to access”.. (See T6, letter 3 August 2001 ATO to Mr Wytkin) The documents referred to in this letter were identified in Mr Wytkin’s earlier letter to the ATO as:

“1. The working papers index for the objection decision.

2. The working paper index for the appeals review.”
   
20. It seems clear enough from the correspondence that there was an agreement in the terms alleged, and in fact 2 lists of documents (extending from page 37 to page 49 in the T documents) were prepared by the ATO and provided to Mr Wytkin. It is now claimed by the applicant that it is self evident from these lists that “audit” documents must necessarily have been prepared and used by the ATO and that these should have been included in the freshly compiled lists.
21. The applicant claims that the respondent’s failure to provide an additional or supplementary list detailing these documents is contrary to the FOI Act. In support of the proposition Mr Wytkin referred to s24A of the FOI Act. That section provides:

“Requests may be refused if documents cannot be found or do not
exist
An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency's or Minister's possession but cannot be found; or
(ii) does not exist.”

22. Mr Wytkin submitted that this section should be read in conjunction with s3(2) of the FOI Act.

“OBJECT
It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information..”

He submitted that s24A conferred a discretion on an agency or the Minister, and s3(2) obliged the agency or Minister to exercise the discretion to disclose the information sought.

23. In my opinion this argument is plainly fallacious.

Section 24A is certainly couched in statutory terms which normally suggest the existence of a discretion, but it is difficult to see how any such discretion could be exercised if, as the section predicates, the document to which access is sought cannot be found or does not exist. How can access be given to a document which cannot be found or does not exist? I suppose it would be possible for the agency or Minister to defer a request for access rather than refusing it in such circumstances but otherwise no realistic scope for discretion can be contemplated so far as I can see.

24. The provisions of s3(2) cannot, in my opinion, be used as a springboard to support the contention that an agency or Minister must create a document to facilitate an FOI applicant gaining access to other documents.
25. There is nothing in the FOI Act which in my opinion supports such a contention and it is plain to me, as submitted by the respondent, that I have no jurisdiction to give such a direction whether or not the respondent in the course of its dealing with the applicant agreed, or gave an undertaking to do so. I should say that I am not satisfied that there was any agreement to supply a list of the kind, which the applicant seeks in the present case. Nor am I persuaded that the so-called “audit” documents do exist. I reject the applicant’s argument on the simple basis that what he wants is not enforceable by this Tribunal in reliance upon any provision in the FOI legislation to which his advocate has made reference. This disposes of the first issue referred to in paragraph 2(a) of these reasons.
26. The second part of the application to review depends upon my assessment of the validity of exemptions claimed by the respondent as a basis for refusing access by the applicant to a number of individual documents and parts of documents to which access has been sought. The party joined supported the respondent’s objection to several of these documents on the basis of grounds covered by ss37(1)(b) and (c), s41(1) and s46(b) of the FOI Act. In relation to s46(b) grounds, reference was also made to the evidence taking powers conferred on the NCA by the National Crime authority Act 1984.
27. The basis of the claims by the respondent for exemption from disclosure of the whole or part of documents identified in the 2 lists referred to in paragraph 8 of these reasons to which the applicant has sought access, was first identified by Richard McGrade in the decision which he made and recorded in his letter to Mr Wytkin on 22 November 2001. To that letter was attached a Schedule of Exemptions and Deletions setting out the grounds for exemption claimed in respect of each relevant document in tabulated form referring (inter alia) to the section of the FOI Act pursuant to which the claim was made. Also annexed was “Note 1” which further elaborated the grounds for certain of the objections. These claims were accepted and amplified by the authorised review officer in making his decision, the subject of the present review, by this Tribunal.
28. Although not published by the authorised review officer at the time of advising the applicant’s advocate of his decision on 14 January 2002, he subsequently provided a document (T2) in compliance with s37(1)(a) of the AAT Act 1975, containing a Statement of Findings on Material Questions of Fact, Evidence and Reasons for Decision. This document contains an amended and expanded Schedule similar to that prepared by Mr McGrade in which, (inter alia), reference has been made to additional sections of the Act which Mr Fraser saw as providing further justification for the exemptions claimed.
29. Except insofar as those additional references include reliance upon s37(1)(a) of the FOI Act, I am inclined to agree with them. Section 37(1)(a) of the FOI Act is an inappropriate basis for granting exemptions as the relevant “investigation” had been completed before the FOI application was made.
30. I have considered each of the documents to which access has been sought and I have inspected the copies thereof (edited copies in Mr McGrade’s principal affidavit and unedited copies in his confidential supplementary affidavit).
31. I have also considered the submissions made by Mr Wytkin that, insofar as claims for exemption are based upon s42(1) of the FOI Act, the relevant documents would not be privileged from production in legal proceedings on the ground of legal professional privilege. This submission was essentially based on the proposition that lawyers employed by an agency were in a different and therefore unprotected relationship with colleagues in the same agency when compared with independently engaged legal advisers acting for a private client.
32. In my opinion such a contention is not supported by authority. (See Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54.
33. It is my opinion that each claim for exemption which has been made by the respondent should be upheld on the grounds advanced by both Mr McGrade and subsequently Mr Fraser the authorised review officer (except that I reject the s37(1)(a) ground in each instance that it has been put forward by Mr Fraser as justification). This rejection however does not lead to success for the applicant in respect of any individual document or group of documents as the denial of access to each document in respect of which a s37(1)(a) ground has been raised, is validly supported by another section.
34. The nett result is that the applicant’s application for review must fail and accordingly the decision under review will be affirmed.
    

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing 3 February 2003

Date of Decision 23 June 2003

Representative for the Applicant Mr R Wytkin

Accountant for the Applicant Pope and Associates

Counsel for the Respondent Mr A Jenshel

Solicitor for the Respondent Australian Government Solicitor

Solicitor for Party Joined Mr S McBurney