Re Mann and Federal Commissioner of Taxation.Members:
RK Todd DP
RA Sinclair M
WA DeMaria M
Administrative Appeals Tribunal
R.K. Todd (Deputy President), R.A. Sinclair and W.A. De Maria (Members)
This is the rehearing of the Tribunal's decision in this matter (sub nom.
Re Mann and Australian Taxation Office (1985) 7 ALD 698) pursuant to the order of the Federal Court (No. A.C.T. G43 of 1985, 28 July 1986) which was made on the hearing of an appeal to that Court. The judgment of the Court followed the decision in
F.C. of T. v. Swiss Aluminium Australia Limited and Ors (No. 2) 86 ATC 4364 (Nos. G293 and G307 of 1985, 26 May 1986). The evidence at the former hearing, contained in the transcript, and documents tendered at this hearing, constitute the evidence relied on at the rehearing.
2. The facts are fully set out in para. 1 and 2 of our former reasons for decision, which are themselves set out on pp. 699-700 of the report in 7 ALD. What the Tribunal now has to do is to decide claims of exemption under sec. 38 of the Freedom of Information Act 1982 ("the FOI Act") formerly rejected by the Tribunal on the footing that sec. 16(2) of the Income Tax Assessment Act 1936 ("the ITAA") was not an enactment of the kind referred to in sec. 38 of the FOI Act. Some documents, and some parts of documents, were at the first hearing found by the Tribunal to be exempt on other grounds. These will not be canvassed again. In respect of the sec. 38 claims, we shall state our approach in terms of principle, and then state our conclusions, in respect of the sec. 38 claims, in respect of the documents not so far found to be exempt.
3. Before doing that, however, we find it necessary to repeat, in view of submissions made by the applicant, particularly in a written submission tendered to the Tribunal at its request after the rehearing, what we said in the first case, at 7 ALD p. 700:
"It has also to be said that the applicant has a great deal of difficulty in distinguishing what is needed to be demonstrated for the purposes of establishing his right to access to the documents in question under the FOI Act from what he has identified as the merits of the matter as a whole.... The point is that he has, rightly or wrongly, become convinced that in a number of areas administration has been much at fault, and he wishes to expose what he sees as having been wrong. But the applicant has no greater or lesser right to access to the documents than has any citizen unconnected with the CTHC and its associates and employees. It is likewise a consequence that as far as the Tribunal is concerned the merits of the applicant's underlying claims are not relevant to the performance by it of its functions. The claim to access must be determined in accordance with the principles applicable to claims of exemption under the FOI Act."
4. What we there said is as true in relation to the sec. 38 claim as it was of the claims under consideration at the first hearing. It is not for us to conduct an enquiry into the background facts. We have to decide whether the information contained in the documents claimed to be exempt is "information respecting the affairs of another person" within the meaning of sec. 16(2) ITAA. The question is no narrower, and no wider, than that.
5. The words "respecting" and "affairs" have, as Mr A. Robertson for the respondent submitted, wide connotations:
- (i) As to "respecting", he referred to
Frost v. Collector of Customs (Qld) & Ors (1985) 63 A.L.R. 297;
R. v. Murphy (1985) 61 A.L.R. 139 at p. 145; and to
The Trustees Executors & Agency Co. Ltd. v. Reilly (1941) V.L.R. 110 at p. 111 where Mann C.J. said:
- "The words `in respect of' are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer."
- (ii) As to "affairs", he referred to
R. v. Board of Trade; Ex parte St. Martins Preserving Co. (1965) 1 Q.B. 603, at p. 613;
Chapman v. Chapman (1961) 1 W.L.R. 1481; and
Re Barker (1890) 25 Q.B.D. 285 at p. 296. Each of these authorities emphasises the width of the meaning of the word "affairs". Dictionary definitions include:
- 1. Anything done or to be done; that which requires action or effort; business; concern...
- 2. (pl.) matters of interest or concern; particular doings or interests...
Oxford English Dictionary
- 1. What one has to do, or has ado with; what has to be done; business, operation.
- 2. esp. (in pl.) a. Ordinary business or pursuits of life, transactions between man and man. b. Commercial or professional business.
6. It follows that, if the subject documents contain information relating even quite broadly to the personal, professional or business concerns of a person, then to that extent they must be found to be exempt. The applicant has emphasised on a number of occasions, and again in the written submissions referred to, that he does "not wish to know anything pertaining to the private taxation affairs of any other individual". The restriction imposed by sec. 16(2) is not expressed to apply to "taxation affairs". A person's affairs generally, having come into the knowledge of an officer, are protected. No doubt there are cases where information could be released without offending sec. 16(2). The long history of the publication of decisions by Taxation Boards of Review, now followed by this Tribunal, shows how, by the use of anonyms and obscurities, a transaction can be described without revealing who participated in it. Difficulty however arises where, even though a class of persons is involved and even though that class varies slightly in membership over a relevant period, the membership of the class in question is known to persons beyond the confines of the class.
7. The fact is that the class of persons here in question, namely the salaried specialists employed by the Capital Territory Health Commission ("the CTHC") and who were involved in the operation of the Private Practice Trust Fund ("the Fund"), would inevitably be well known to a number of persons involved in,
ATC 2013or knowledgeable of, the public health area in the A.C.T., and the names of the members of the class would be equally well known. It follows that where information in the documents relates to the affairs of members of that class, disclosure of it would breach the provisions of sec. 16(2) of the ITAA. Any suppression, in the grant of access, of the names of the members of the class would be a gap that would be filled quite readily by reason of knowledge held by a section of the public, namely the involved persons mentioned above, about the existence of the class, about its activities, and about how it fitted in to health administration in the A.C.T. It is nothing to the point that that section of the public may not be large in relative terms. The fact is that it exists. Documents before us concerning the affairs of participating specialists include documents which name individual specialists or refer to them in such a way as to make them readily identifiable. Other documents identify the specialists concerned by reference to membership of the relatively small group (no more than 45-50) who participated in the Fund during its existence. Given that the names of the members of the class are known to some, the matter can then be tested by asking, as the respondent's submission said, the question: "Would a person know more about another person or another person's affairs if the information was disclosed?" Such increase in knowledge would for instance flow if the information included what the "other" person earns, how he, she or it makes money, what are the person's relations with other persons or corporation with its employees and the public.
8. We agree with the respondent's further submissions that -
- (i) information disclosing that another person has been in communication with the Australian Taxation Office ("the ATO") is itself information respecting that person's affairs;
- (ii) the concept of information disclosed or obtained under the provisions of the ITAA is not limited to information derived as a result of the exercise of the Commissioner's powers under sec. 264 of the ITAA or by reference to what may be contained in a taxation return;
- (iii) it is sufficient that information is contained in documents that are obtained in the course of officers' employment and that the officers' employment duties are to carry into effect the provisions of the ITAA: See
Canadian Pacific Tobacco Company Ltd. & Anor v. Stapleton (1952) 86 C.L.R. 1.
9. Finally, in terms of the principles to be applied, we refer to the applicant's final submission, which was that sec. 16(2) "covers matters relating only to the assessment and collection of tax of individuals. It does not refer to legal discussions, policy decisions of the Commissioner or his officers (or) interpretations of the ITAA. If it did, then the Commissioner and his officers would be in breach of the Act every time they gave out any information at all."
10. It is enough to say in relation to this submission that the question is now simply whether the information in question relates to the affairs of a person. There are circumstances in which legal discussions, policy decisions or interpretations of the ITAA would have to be held to relate to a person's affairs, and circumstances where they would not. It all comes back to the particular information in the particular documents before us.
11. We have carefully considered the documents in the light of the principles stated above. At the hearing we expressed the view that the status of T6, pp. 13-16, described in the index of documents as "Memorandum from Department of Prime Minister and Cabinet plus attachments dated 4 May 1984" should be reconsidered. We were subsequently advised that these documents had been released and were no longer in issue. Some other documents, marked accordingly in the index of documents (Ex. 1), have been conceded. As to the remaining documents, we find that they are exempt in terms of sec. 38 of the FOI Act, having regard to the application of sec. 16(2) of the ITAA. As Miss Kenny's submission at the former hearing contended, they contain information concerning the affairs -
- (a) of the CTHC because it concerns the terms and conditions upon which the CTHC employs its specialist staff, including conditions relating to their right of private practice; its internal accounting procedures; management of moneys arising from private practice work; and its involvement in
ATC 2014negotiations with the ATO concerning the taxation liability of the the Fund, its trustees and beneficiaries;
- (b) of the trustees of the Fund in so far as the information in question concerns the liability of the trustees to income tax in respect of the Fund; or
- (c) of specialists employed by the CTHC who participated in the Fund because the information in question concerns the terms and conditions of their employment, including the conditions of their right of private practice; their earnings; their taxation liability; their arrangements to reduce taxation liability; the nature of advice sought by them in relation to their taxation affairs, and generally arrangements for the conduct of their professional affairs.
12. The only doubts that we have entertained, save those in relation to T6, pp. 13-16 (now released), were in relation to -
- (i) T4, p. 14 (opposite the letters NB). This we consider is exempt because, while it refers to another and larger group of doctors, they would still be identifiable to knowledgeable persons.
- (ii) T4, pp. 69-71. This we consider is exempt notwithstanding that it is effectively public, or may be published by another. We entirely agree that the ATO is not entitled to disclose material otherwise covered by sec. 16(2) merely because it has entered the public demesne.
13. In the result we go back to the cardinal principle of Australian income tax law that the knowledge of a person's affairs gained by the ATO is sacrosanct, subject to carefully defined, albeit now very extensive, statutory exceptions. There appears to us to be no ground for a construction of the FOI Act that would lead us to intrude upon that principle. The Tribunal's previous decision in this matter was, in relation to sec. 38, based on a view, adopted also in some other Tribunal decisions, that depended upon the Tribunal's understanding of
News Corporation Ltd. & Ors v. NCSC (No. 2) (1984) 2 ACLC 202; (1984) 6 ALD 83, and not on any view that the cardinal principle should be weakened.
14. The decision under review will be affirmed.