Federal Commissioner of Taxation v. Swiss Aluminium Australia Limited & Ors.

Bowen CJ

Fox J
Jackson J

Full Federal Court

Judgment date: Judgment handed down 20 March 1986.

Bowen C.J., Fox and Jackson JJ.

These matters came before the Court as appeals instituted pursuant to sec. 44(1) of the Administrative Appeals Tribunal Act 1975. The same decision is in question in both appeals and that decision was given by the Tribunal when constituted by members of whom one was a presidential member. Accordingly, the Court, although exercising original jurisdiction, was constituted for the hearing of the appeals as a Full Court (see sec. 44(3)).

Also before the Court at the same time was an application (No. 292 of 1985) under the Administrative Decisions (Judicial Review) Act

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seeking an order of review. At the request of the parties this application was stood down pending the hearing of the two appeals.

At the commencement of the hearing counsel for Swiss Aluminium Australia Limited (``Swiss Aluminium''), a respondent to each appeal, drew the Court's attention to the question whether the Court had jurisdiction to entertain the appeals. He referred to
Director-General of Social Services v. Chaney (1980) 31 A.L.R. 571. None of the parties wished to press the point of jurisdiction. However, written arguments were submitted by counsel for the Commissioner of Taxation and by counsel for Swiss Aluminium as friends of the Court. The Court in the meantime proceeded to hear oral argument on the question raised by the appeals.

Although we have heard full argument on the substantive question raised, we have come to the conclusion that we lack jurisdiction to entertain the appeals. Subsection 44(1) of the Administrative Appeals Tribunal Act provides that:

``(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.''

Jurisdiction is then conferred on the Court to hear and determine such an ``appeal'' and in relation to such an appeal the Court has the powers conferred by sec. 44(4) and 44(5).

Subsection 44(1) of course, applies to ``decisions'' of the Tribunal and the meaning of that term was discussed in Director-General of Social Services v. Chaney (supra) where the Court by a majority (Deane and Fisher JJ., Northrop J. dissenting) held that, as Deane J. said at p. 593:

``The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under sec. 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of sec. 43 of the Act. The qualifications referred to are an appeal pursuant to sec. 44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent `decisions' may properly be given.''

It is necessary to consider whether a decision the subject of an appeal from the Tribunal ``constitutes the effective decision or determination of the application for review'' and, if it does not, whether it falls within the second of the ``qualifications'' referred to by Deane J., the first qualification plainly being in no way presently germane.

In order to deal with the first of these questions it is necessary to examine the matter which was before the Tribunal, and a convenient point for commencement is sec. 11(a) of the Freedom of Information Act 1982 which provides that subject to that Act, any person has a legally enforceable right to obtain access in accordance with the Act to a document of an ``agency'', other than an exempt document.

The Commissioner of Taxation is an ``agency'' for the purposes of sec. 11(a) and the present case is concerned with requests made by Swiss Aluminium to the Commissioner for access in accordance with the Freedom of Information Act to various documents in the Commissioner's files which have been used for the purpose of assessing the taxable income of, and tax payable by, Swiss Aluminium.

The decision of the Tribunal now in question relates to one such document (identified before the Tribunal as document D79). It is a document prepared by one of the Commissioner's officers recommending the issue of a number of assessments of the amount of taxable income of Swiss Aluminium and of the tax payable thereon and the Commissioner contends that it is exempt from disclosure as being an ``exempt document'' for the purposes of sec. 11(a). The document relevantly contains information respecting the affairs of a taxpayer, other than Swiss Aluminium, that information having been disclosed or obtained under the provisions of the Income Tax Assessment Act 1936.

The Freedom of Information Act contains a number of provisions which make documents ``exempt'' documents for the purposes of that Act and several of these provisions have been

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relied on by the Commissioner in respect of document D79. So far the question whether the provisions so relied upon apply has been dealt with by the Tribunal only in respect of one such provision, namely sec. 38, which provides that:

``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 38 requires, of course, that for a document to be an ``exempt document'' in accordance with its provisions, the enactment to which it refers must be one which applies ``specifically to information of a kind contained in the document'' and prohibits persons referred to in the enactment ``from disclosing information of that kind''. The ``enactment'' which the Commissioner contends satisfies that requirement is sec. 16(2) of the Income Tax Assessment Act 1936. The Tribunal has decided that sec. 16(2) is not an enactment which satisfies sec. 38 of the Freedom of Information Act but, as indicated above, it has not yet decided whether the other exemption provisions relied on by the Commissioner apply.

It is clear that the Tribunal's decision in relation to sec. 38 does not satisfy the principal test referred to in the passage from Director-General of Social Services v. Chaney, (supra). The issue before the Tribunal is whether the Commissioner's refusal to grant access under the Freedom of Information Act should be reviewed. The Tribunal's decision on the application of sec. 38 does not finally determine that question and thus does not constitute ``the effective decision or determination of the application for review''.

It is then necessary to consider whether the case is one to which the second qualification referred to in Director-General of Social Services v. Chaney (supra) applies.

What was sought was information. One ground only upon which it could lawfully be withheld has been argued. It is true that if the matter were decided in favour of the Commissioner, there would be a degree of finality, but even then there are other documents (e.g. internal working documents) the subject of the application to the Commissioner, the right to disclosure of which would have to be resolved. It appears that document D79 upon which the Tribunal has ruled was simply selected as a convenient document to raise the point. Other documents would remain to be dealt with.

We have come to the conclusion that we lack jurisdiction. We will accordingly dismiss the appeals but we make no order as to costs.


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