Re Swiss Aluminium Australia Limited & Ors.

Members:
Beaumont J
RA Sinclair M
A Renouf M

Tribunal:
Administrative Appeals Tribunal

Decision date: Decision handed down 10 September 1985.

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Beaumont J. (President)

The Commissioner of Taxation claims exemption from disclosure under the Freedom of Information Act 1982 of portions of a document prepared by one of his officers recommending the issue of a number of assessments of the amount of taxable income of the applicant, Swiss Aluminium Australia Limited, and of the tax payable thereon pursuant to sec. 136 of the Income Tax Assessment Act 1936 as it stood at the relevant date.

The document was marked as D79. The identification of all the sources of information used to make up D79 is a matter of some contention. However, for the purposes of this particular argument it was not necessary for the parties to go beyond the evidence already adduced that at least part of the material contained in the document consists of information respecting the affairs of another taxpayer disclosed or obtained under the provisions of the Income Tax Assessment Act.

Exemption is claimed on a number of grounds but, to this point in the application for review, only one basis for exemption has been argued. It is submitted by the Commissioner that, because of the provisions of sec. 16(2) of the Income Tax Assessment Act 1936, the relevant portions of the document are exempt by reason of the operation of sec. 38 of the Freedom of Information Act.

Section 38 of the Freedom of Information Act provides:

``38. A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.''

Section 16 of the Income Tax Assessment Act, so far as relevant, provides:

``16. (1) In this section, unless the contrary intention appears -

• `officer' means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax;
• ...

(1A) For the purposes of the definition of `officer' in sub-section (1), a person who, although not appointed or employed by the Commonwealth, performs services for the Commonwealth shall be taken to be employed by the Commonwealth.

(2) Subject to this section, an officer shall not either directly or indirectly, except in the performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of `officer' in sub-section (1).''

Uninstructed by authority on the construction of sec. 38 (to which reference will be made

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later), one would have thought that the meaning of sec. 38 was plain enough, although difficulties could well arise in its application. The provision has two distinct limbs. In the first place, sec. 38 requires that the statute in question ``specifically'' apply to the information sought to be disclosed. By ``specifically'', one would assume that the ordinary dictionary meaning of the term was intended. According to The Macquarie Dictionary, one of the primary meanings of ``specific'' is ``having a special application, bearing, or reference; specifying, explicit, or definite: specific mention. '' Such a meaning has usually been adopted in the authorities where the term has been considered (see, e.g.
Re Net Book Agreement , 1957 (1962) 3 All E.R. 751 at p. 774 ; cf.
Re Ku-ring-gai Co-op. Building Society (No. 12) Ltd. (1978) 22 A.L.R. 621 at pp. 636, 646 ). (It is hardly necessary to say that, in determining whether an enactment applies ``specifically'' to the information sought to be disclosed, questions of degree will often arise and different minds may well come to different conclusions on the point depending upon the levels of generality which are perceived in the language of the statute.)

In the second place, if sec. 38 is to operate, the statute in question must prohibit the persons referred to in it from disclosing information of that kind, whether the prohibition is absolute or subject to exceptions or qualifications. On their face, the provisions of sec. 16(2) would appear to be picked up by this limb of sec. 38 in the present case. Section 16(2) contains a prohibition of the disclosure to any person by an officer employed by the Commonwealth of information respecting the affairs of any other person acquired by that officer in the course of his employment; and there is evidence that D79 contains, inter alia, information respecting the affairs of at least one other taxpayer acquired by an officer of the Commissioner in the course of his employment, which information was disclosed or obtained under this provision of the Income Tax Assessment Act. True it is that there is found in sec. 16(2) an exception, that of a disclosure in the course of performance of any duty as an officer, but such a prohibition is contemplated, in terms, by the second limb of sec. 38.

However, accepting that a prohibition containing an exception may fall within the second limb of sec. 38, the scope of that exception may none the less have an impact upon the specificity or otherwise of sec. 16(2) for the purpose of considering whether the first limb of sec. 38 has been satisfied.

The scope of a similar secrecy provision was considered by Kitto J. in
Mobil Oil Australia Pty. Ltd. v. F.C. of T. (1962-1963) 113 C.L.R. 475 (at pp. 504-505) :

``There remains one minor question of law that has arisen. It is whether reg. 35 of the Public Service Regulations forbids an officer of the Commonwealth Public Service to disclose the contents of official papers to the Board of Review by direction of the Board or the Chairman of the Board. The regulation provides that except in the course of official duty no information concerning public business or any matter of which an officer has knowledge officially shall be given, directly or indirectly, nor shall the contents of official papers be disclosed, by an officer without the express authority of the Chief Officer. The short answer to the question is that if an officer is required, by a body having legal authority to obtain information compulsorily, to give information or disclose the contents of documents which he has in his official capacity, it is in the course of his official duty to obey the requirement.''

It follows, in my view, that the exception built into sec. 16(2) is capable of a very wide operation. Many examples of disclosure of the information dealt with by the exception contained in sec. 16(2) could doubtless be given.

But what is more significant for present purposes is that the generality of the language used to express the exception in sec. 16(2) must bear upon the nature of the prohibition contained in that provision; and, in my opinion, even if it be assumed (as Davies J. decided in
Murtagh v. F.C. of T. 84 ATC 4516 at p. 4530; (1984) 6 ALD 112 at p. 130 ) that information relating to the affairs of any other person is a ``specific'' provision for the purposes of sec. 38, the indefinite nature of the exception is such as to rob the prohibition of the specificity required to earn an exemption on the grounds stated in sec. 38. In other words, in my view, the generality of the exception is such as to deprive the prohibition, as a whole, of the specific character called for by the first limb of

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sec. 38. Thus, Whilst the second limb of sec. 38 may be satisfied here, the first limb is not.

Apart from the decision in Murtagh, there is no authority squarely in point. The decisions of the Tribunal on this and related questions were exhaustively considered in
Re Lianos and Secretary, Department of Social Security (1985) 2 A.A.R. 503 and in
Re Mann and Australian Taxation Office, unreported, 14 June 1985 and it is unnecessary to repeat that material. It is common ground that the decisions of the Full Federal Court on the construction of sec. 38 -
News Corporation Ltd. & Ors v. National Companies & Securities Commission (1984) 52 A.L.R. 277 and
Kavvadias v. Commonwealth Ombudsman (1984) 52 A.L.R. 728 - are not decisive for present purposes. None the less, in my opinion, the reasoning in Kavvadias (at p. 733), following the decision in News, supports the approach I have adopted:

``Section 38 of the Act deals with information in a document. We do not doubt that what is in the document, including indications of its source, and how it came into the possession of the person who has it, is all information in the sense of s 38. It may be thought adequate for the purposes of the section that the enactment to which it refers should prohibit disclosure of information by reference to it having been received by officers in the course of their duty. Such a prohibition would say nothing directly as to the kind of information in question, which, depending upon the role of the officers, may be of a very wide, almost limitless nature.

It seems to us that s 38 requires that there be a more direct and explicit reference to the nature of the information itself. Information is the commodity being dealt with in the Act, not the discipline or integrity of officers.''

In my opinion, because the exception built into sec. 16(2) by reference to anything done by an officer in the course of his duty is so generally expressed and thus capable of so wide an application, it is impossible to ascribe to sec. 16(2), taken as a whole, the specific operation required by sec. 38.

In the result, the claim for exemption on this ground is refused.