AA Tremayne (Kirribilli) Private Hotel Pty Ltd v North Sydney Council

The Applicant's submissions 9 Firstly, Dr Sorensen submits that s 82 in terms allows the exercise of a discretion to disclose information generally in accordance with paragraphs (a) to (d) or to the particular persons specified in (e) to (l), whereas s 85, except where subsection (1)(a) or (b), applies is a bar to the production of a document to a Court pursuant to a subpoena. The connection between s 85(1)(b) and s 82 is only for the purpose of identifying the category of persons who are to be enabled to exercise a function conferred or imposed on them. Accordingly, s 82 operates wholly on the basis of creating a discretion. Section 85 negates the force of a subpoena requiring the tax officer to disclose or produce any information in any Court.

10 Moreover, Dr Sorensen says that as the production is not for the purpose of the administration or execution of a taxation law, s 85(1)(a) has no operation. Similarly, no person specified as an authorised recipient under s 82 is seeking the production and accordingly, s 85(1)(b) has no application. 11 As a general submission Dr Sorensen makes the point that s 82 is dealing with production to persons and that s 85 is a distinct provision relating to a Court, which is not a person. (See s 21(1) of the Interpretation Act 1987). 12 Dr Sorensen refers to a number of cases where secrecy provisions in respect of the administration of taxation laws have been considered. Although not identical in every case, but nevertheless similar, the Courts have inclined to the view that a relevant tax officer is relieved of the ordinary obligation to disclose information or produce documents to a Court in answer to a subpoena unless for the purpose of carrying into effect the provisions of the subject legislation. (Roberts v Hay [1992] Qd R 688, Chief Commissioner of Stamp Duties (NSW) v Green and Anor 95 ATC 4,001, Javorsky v Commissioner of Taxation (2005) NSWSC 167; 216 ALR 619, Clyne v the Deputy Commissioner of Taxation (1983) 1 NSWLR 111 at 117). 13 To support what otherwise might be regarded in other circumstances as draconian provisions the applicant relies upon the observations made by Lockhart J (as he then was) in Consolidated Press Holdings Limited v Federal Commissioner of Taxation (1995) 57 FCR 348; (1995) 129 ALR 443 at 446 as follows: - (The Act) "is designed to ensure that officers of the Australian Taxation Office maintain secrecy regarding the affairs of taxpayers. The section reflects the intent of the parliament to balance two competing areas of public interest: on the one hand the interests of taxpayers in having the privacy of their financial information respected, and on the other hand the facilitation of the administration of governmental business. Taxpayers are responsible for reporting their income and outgoings. It is essential if the confidence of taxpayers is to be maintained that private information concerning their finances and affairs will not be disclosed except in the special circumstances mentioned in the various subsections…" 14 It is contended that the observations by Lockhart J are apposite to the application and construction of the provisions of Division 3 of Part 9 of the TAA. 15 There is no evidence in the present case to show that any production required by the Respondent is necessary for the purpose of the administration or execution of "any taxation law". Moreover, this Court is clearly not an "authorised recipient" for the purposes of s 85, and is not a specified person falling within any of paragraphs (e) to (l) of s 82. In any event the Court is not a "person" for the purposes of the s 85: Cowan v Stanhill Estates Pty Ltd [1996] VR 604; Clyne, and Roberts v Hay. The Council's arguments 16 Ms Irish has explained that the reference to s 10Q in the Schedule to the subpoena is relevant to the present proceedings as that section provides an exemption from taxation under the Land Tax Management Act 1956, where the land is used or occupied primarily for a boarding house for low income persons as therein defined. 17 Accordingly, information and documents held by the Office of State Revenue could be "information obtained under or in relation to the administration of the taxation law", within the meaning of ss 81, 82 and 85 of the TAA. However, she says s 82 is permissive and is to be read in conjunction with and in the light of s 85. Ms Irish also submits that s 82 is not expressed to be subject to s 85 and the provisions of the later do not override the provisions of the former. The effect of s 82(a), (b) and (d) is merely to supplement the list of persons appearing subsequently in s 82. It is also pointed out by Ms Irish, that the exemption created by s 85(1)(b) is not confined to the exercise of a function under a taxation law. According to Ms Irish, reading s 82(d) and 67 of the Land and Environment Court Act 1979 together, imposes the obligation to produce the documents in answer to a subpoena and the Court can reaffirm that obligation on the return of the subpoena. The provision on disclosure in s 81 is relaxed by the effect of s 85(1). 18 During oral submissions Ms Irish made reference to a facultative interpretation of ss 82 and 85 that would allow the Court to require production of the documents under s 82(k)(ix) carried through to s 85(1)(b) on the basis that the Director General of the Department of Urban Affairs and Planning is a concurring authority for the purposes of SEPP 10 - Retention of Low Cost Rental Accommodation (Amendment No. 6). Ms Irish did not elaborate on this argument or prove that the Director General fell within (ix). This omission presumably is understandable given that the Director General is not seeking to require the Office of State Revenue to produce the documents to enable the Director General to exercise a function conferred or imposed by law. 19 Ms Irish seeks to distinguish the various authorities relied upon by Dr Sorensen, and supported by Mr Twohill, on the basis that none of the cases are directly in point or deal with the particular legislative regime under consideration and that the observations relied upon in most cases are obiter dicta.