Agrinova Pty Ltd v Chief Commissioner of State Revenue

Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation [2017] NSWCA 17

Attorney-General (Cth) v Alinta Limited (2008) 233 CLR 542; [2008] HCA 2

Attorney-General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 278 CLR 512; [2023] HCA 26

B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187

Batagol v Commissioner of Taxation (Cth) [1963] HCA 51; (1963) 109 CLR 243

BBLT Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 1003

Bellinz Pty Ltd v Commissioner of Taxation (Cth) [1998] FCA 615; (1998) 84 FCR 154

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41

Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15

Chief Commissioner of State Revenue v Dick Smith Electronics Holdings Pty Ltd (2005) 221 CLR 496; [2005] HCA 3

Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184

Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16

Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Limited (2008) 237 CLR 146; [2008] HCA 32

Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325; [2007] FCAFC 16

Commissioner of Taxation v Ryan (2000) 201 CLR 109; [2000] HCA 4

Commissioner of Taxes v Tangentyere Council Inc (1992) 2 NTLR 76

Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21

Deputy Commissioner of Taxation (Cth) v Clyne (1982) 12 ATR 738

Deputy Commissioner of Taxation v Advanced Holdings Pty Ltd [2019] FCA 1917

Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473; [2008] HCA 41

Deputy Commissioner of Taxation v Faint [1988] 2 Qd R 494

Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; [1995] HCA 23

Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211

Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Company Ltd (1911) 12 CLR 398; [1911] HCA 31

Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12

Fisher v Fisher (1986) 161 CLR 438; [1986] HCA 61

Fyna Projects Pty Ltd v Chief Commissioner of State Revenue [2018] NSWSC 1220

Gazzo v Comptroller of Stamps (Victoria) (1981) 149 CLR 227; [1981] HCA 73

Hazeldell Ltd v Commonwealth (1924) 34 CLR 442; [1924] HCA 36

Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; [1909] HCA 36

In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24

Lyons v Commissioner of Taxation [2020] FCA 651

Molyneux and Vermeesch v Chief Commissioner of State Revenue (RD) (No 2) [2013] NSWADTAP 41

New South Wales v Commonwealth (2006) 229 CLR 1; [2006] HCA 52

Nguyen v Commissioner of Taxation (2018) 265 FCR 355; [2018] FCA 1420

Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5

Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; [1991] HCA 58

Qantas Airways Ltd v Lustig (2015) 228 FCR 148; [2015] FCA 253

R v Davison (1954) 90 CLR 353; [1954] HCA 46

R v Quinn; Ex parte Consolidated Foods Corp (1977) 138 CLR 1; [1977] HCA 62

Re Adams and the Tax Agents' Board [1976] AATA 1; (1976) 12 ALR 239

Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140

Rola Co (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185; [1944] HCA 17

Salvation Army (New South Wales) Property Trust v Chief Commissioner of State Revenue (2018) 96 NSWLR 119; [2018] NSWSC 128

SPIC Pacific Hydro Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 395

Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14

Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (2011) 245 CLR 446; [2011] HCA 41

The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66

Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Victoria v Commonwealth (1996) 187 CLR 416; [1996] HCA 56

Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54

Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213

Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191

YWCA Australia v Chief Commissioner of State Revenue [2020] NSWSC 1798

Explanatory Memorandum, Family Law Amendment Bill 1983 (Cth)

[2024] NSWCATAD 170

Administrative or judicial power?

Power to determine jurisdiction

The submissions in relation to jurisdiction

The statutory framework

Liability to tax, assessments, challenges to assessments and collection of tax

Assessment is not discretionary

General administration vs assessment function

Challenge to assessments

Collection of tax

An order for payment

Summary of the legislative framework

Similarities and differences between the functions and powers of the Court and the Tribunal under Part 10

The Commonwealth Tribunal

The exercise of judicial power or administrative power

Whether the functions form part of governmental administration

Whether the Tribunal is stepping into the shoes of the administrator and must determine what is the correct and preferable decision

Whether the functions substantially involve factual assessments

Whether the functions involve the making of value judgments or policy evaluations

Whether any legal determinations are conclusive

Whether the Tribunal is enforcing rights derived from statute or independent rights existing outside of the particular statutory scheme

Whether the issues are ones which were historically determined by courts

The effects of the type of decision in question

The functions that have been conferred on the Tribunal

The constitution of the Tribunal

The nature of the Tribunal's processes

The nature of the obligations imposed on the parties by the orders

Whether the orders the Tribunal can make depend on the finding of a contravention of a legal norm or duty

Whether the decision of the Tribunal can be given force as an order of a court

Conclusion on administrative vs judicial power

The question of law on appeal

The decision at first instance

The decision in Gazzo

The submissions about Gazzo

Legal developments since Gazzo

1. In proceedings under Part VIII of the Family Law Act 1975 (Cth) (Family Law Act), the Family Court of Australia made a suite of property settlement orders altering certain property interests of the parties to a marriage. In December 2019, pursuant to those orders specified parcels of land were transferred to the appellant, a third party to the marriage (the transfers).
2. By two notices of assessment, each dated 28 October 2021, the respondent notified the appellant that the transfers were subject to duty, summing to approximately $1.8 million (the assessments). The appellant objected to the assessments (the objections), relying on s 68 of the Duties Act 1997 (NSW) (Duties Act) which concerns exemptions where there is a break-up of a marriage or other relationship. The objections also referred to s 90 of the Family Law Act, to contend that the transfers are exempt from duty.
3. Section 90 of the Family Law Act relevantly provides:

(1) The following agreements, deeds and other instruments are not subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only to or in relation to a Territory:

(a) a deed or other instrument executed by a person for the purposes of, or in accordance with, an order made under this Part;

1. An earlier version of s 90 (the earlier version) was held to be invalid by the High Court of Australia in Gazzo v Comptroller of Stamps (Victoria) (1981) 149 CLR 227; [1981] HCA 73 (Gazzo) on the basis that it was not supported by a head of power under the Constitution.
2. The objections were disallowed (the objection decisions) on the basis that s 68 of the Duties Act did not cover the situation. Section 90 of the Family Law Act was not mentioned by the respondent in the objection decisions.
3. The appellant applied, pursuant to s 96 of the Taxation Administration Act 1996 (NSW) (the TA Act) for "administrative review" under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) in relation to the decisions of the respondent (the Chief Commissioner) that were the subject of the objections (the review). As identified in Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 (Paspaley) at [28] and [53], the decisions the subject of review in the Tribunal are the assessments and not the objection decisions. The requirement to object to a decision of the Chief Commissioner is a condition to enlivening the Tribunal's jurisdiction, but does not make the objection decisions the subject of the review: s 96(1) of the TA Act; Paspaley at [28].
4. At first instance and on appeal, the appellant did not press reliance on s 68 of the Duties Act. The only issue concerns the applicability of s 90 of the Family Law Act.
5. As noted, whilst the taxpayer relied on s 90 in its objections, the objection decisions did not refer to that section. On a review, neither party is limited to the grounds of the objection: s 100(2) of the TA Act. Accordingly, even if the question of s 90 of the Family Law Act was not the subject of the objections and even though the respondent did not refer to it in the objection decisions, the TA Act does not provide a bar to the appellant relying on it.
6. At first instance, the Tribunal considered it had jurisdiction to determine the review and upheld the assessments on the grounds that the Tribunal is bound by the doctrine of precedent; and further, that the decision in Gazzo, which determined that the earlier version of s 90 was invalid, was still good law and applied in the circumstances: Agrinova Pty Ltd v Chief Commissioner of State Revenue [2024] NSWCATAD 170.
7. The appellant's sole ground of appeal challenges that decision by contending that the Tribunal erred in finding that s 90 of the Family Law Act is not a valid law of the Commonwealth.
8. The central plank of the appellant's argument on appeal is that no duty on the transfers is leviable because the exemption contained in s 90 of the Family Law Act is valid law. In reaching this position, the appellant accepts that Gazzo has not been overturned and that s 90 is, in (at least some) material respects (and, importantly, as applies here), the same now as it was when Gazzo was decided. Nevertheless, the appellant contends that, properly read, Gazzo does not compel a conclusion that the current version of s 90 is invalid. In any event, so the appellant submits, today, the decision in Gazzo would be determined differently. Today, so it is submitted, the High Court of Australia would find the earlier version of s 90 (and the current version of s 90), so far as is material to these proceedings, valid. This, coupled to the fact that s 90 is a relieving provision, means, so the appellant submits, that in the interim, the Tribunal is not bound to apply Gazzo while conducting a review of the assessments and may set aside the assessments. The appellant contends that this mirrors the position of the respondent who is also not bound to follow Gazzo in circumstances where to do so would ultimately prove fruitless and a waste of resources because the assessments would, in due course, be overturned, once Gazzo is overturned.
9. On the other hand, the respondent contends that Gazzo is good law and the current version of s 90 is invalid as it applies to the relevant transfers; and further, that the Tribunal is bound to follow Gazzo, which is not distinguishable.
10. As can be seen from the competing submissions, an important issue arising on the appeal is whether s 90 of the Family Law Act is a valid law of the Commonwealth, in its application to duties otherwise imposed under the Duties Act in respect of transfers pursuant to orders made under Part VIII of the Family Law Act. Another issue is whether the Tribunal, in determining an "administrative review" pursuant to s 96 of TA Act, is bound by Gazzo.
11. The appellant requested to have a question of law referred to the Supreme Court of New South Wales pursuant to s 54 of the Civil and Administrative Act 2013 (NSW) (NCAT Act). However, on 27 November 2024 the request was refused by a differently constituted Appeal Panel and case management orders were made for the appeal proceedings to be heard and for the parties to file written submissions and an agreed statement of facts.

1. Both parties contend that the Tribunal had jurisdiction to determine the review and it follows, the Appeal Panel has jurisdiction to determine the appeal.
2. Whether the Tribunal exercises administrative or judicial power in a review under s 96 of the TA Act is determinative of whether the Tribunal, at first instance, had jurisdiction to determine the review.
3. This is for the following reasons:

(1) The High Court has confirmed that "a State Parliament lacks legislative capacity to confer on a State tribunal that is not a court of the State ... judicial power with respect to any matter of a description in s 75 or s 76 of the Constitution": Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 (Citta Hobart) at [1], referring to Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15.

(2) The Tribunal is not a court of the State as contemplated by Chapter III of the Constitution: Attorney-General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 (Gatsby) at [184], [204], [228].

(3) Underpinning the appellant's argument is the proposition that a Commonwealth law exempts it from taxation; whereas the respondent's contention is that that Commonwealth law is invalid.

(4) This means that a central issue in the proceedings falls within the subject matter description in s 76 of the Constitution. As there is no suggestion that if the Tribunal is exercising judicial power, there is somehow not a "matter", it would follow that the review would constitute a federal matter which a state tribunal is not authorised to determine.

1. On the one hand, in the event the Tribunal is exercising judicial power in a review, then the proceedings will raise a federal matter that the Tribunal, not being a Chapter III court, has no jurisdiction to determine. If, on the other hand, the Tribunal is exercising administrative power, then there is jurisdiction to proceed on the Tribunal's opinion as to whether the Commonwealth law is valid: Re Adams and the Tax Agents' Board [1976] AATA 1; (1976) 12 ALR 239 at 241 (Re Adams); Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 (Sunol) at [18]-[20]. We note that the plurality in Citta Hobart said that Sunol (at [20]) should not be followed to the extent that it was inconsistent with the proposition that a State tribunal, invested with State judicial power (as the Tribunal here is) has jurisdiction to and exercises judicial power when it determines whether or not a claim or complaint is outside its jurisdiction: at [26]. However, there would appear to be no doubt that in the exercise of administrative power, the Tribunal could form an opinion as to the question of validity of s 90; and proceed on that opinion.
2. The orders sought by the appellant on the appeal are that the assessments under review be set aside and that in substitution the appellant be assessed as exempt from duty. This engages s 81(2) of the NCAT Act, which provides that the Appeal Panel may exercise all the functions that are conferred or imposed by the NCAT Act and enabling legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal.
3. It follows that if we are satisfied that the Tribunal, at first instance, was exercising administrative power, then the Appeal Panel would also be satisfied that in an appeal from such a decision, we would be exercising administrative power. The converse also applies: if the Tribunal was exercising judicial power, so too is the Appeal Panel. The parties did not suggest that the power being exercised by the Tribunal changes on appeal.

1. In Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 (Wilson v Chan), Leeming JA discussed the Tribunal's powers in circumstances where a constitutional limitation, as potentially in issue here, applies. Referring to the Tribunal's duty to determine whether it, in fact, has jurisdiction in a proceeding, his Honour said (at [13]):

"... NCAT is authorised, by necessary implication, to determine whether claims made to it are within its limited jurisdiction. That authorisation extends to determining whether an applicant has purported to invoke NCAT's jurisdiction in proceedings which are constitutionally impermissible because they amount to a matter arising under a federal law. The implied limitation upon legislative power which prevents the New South Wales Legislature from authorising NCAT to determine such matters cannot prevent NCAT from determining whether an applicant purported to do something which is constitutionally impermissible. That is not contrary to the Constitution; rather, it vindicates the constitutional limitation."

1. In other words, we have jurisdiction to determine our jurisdiction.
2. The question of jurisdiction must be determined first: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Company Ltd [1911] HCA 31; (1911) 12 CLR 398 at 415; [1911] HCA 31; Hazeldell Ltd v Commonwealth [1924] HCA 36; (1924) 34 CLR 442 at 446; [1924] HCA 36; Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [1].
3. Notwithstanding the parties' agreement, the Appeal Panel must be independently satisfied that the Tribunal, at first instance, was exercising administrative power.
4. The parties cannot consent to jurisdiction where there is none: Commissioner of Taxes v Tangentyere Council Inc (1992) 2 NTLR 76 at 79; Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163; [1981] HCA 48.

1. The appellant and respondent each contend that in hearing and determining the first instance proceedings and the appeal proceedings, the Tribunal is exercising administrative power and is not exercising judicial power.
2. The appellant submits that under the TA Act, the functions of the Tribunal are expressly stated to be an administrative review. The appellant relies on s 101(2) of the TA Act, which states that Chapter 3, Part 3, Division 3 of the ADR Act applies in reviews in the Tribunal. The division includes s 63, which requires the Tribunal to determine what is the correct and preferable decision, and s 66, which states that the Tribunal's decision is taken to be the decision of the administrator. The appellant contends that "the effect of a Tribunal order in an administrative review is to change the position of the administrator, not to impose an enforceable obligation on them".
3. The appellant concedes that s 101(1)(c) of the TA Act, which enables the Tribunal to make an order "for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid", could give rise to an exercise of judicial power. The appellant submits, however, that to the extent it confers judicial power, the provision must be read down to exclude jurisdiction in respect of any matter within the meaning of ss 75 and 76 of the Constitution (citing Citta Hobart at [1]). Furthermore, in a case such as this where no order under s 101(1)(c) is sought, the question of whether the proceeding calls upon an impermissible exercise of judicial power by the Tribunal does not arise.
4. The respondent submits that the only function being exercised by the Tribunal is a review in accordance with s 63 of the ADR Act, being an exercise of administrative power: Sidgreaves v Chief Commissioner of State Revenue [2019] NSWSC 408 at [62]; which we note concerned a decision not to refund gaming machine tax. The respondent submits that, as he does not seek an order under s 101(1)(c) of the TA Act, the question of whether that section would involve an exercise of judicial power does not arise.
5. Both parties assert that Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 (Wojciechowska) and the arguments raised in the pending High Court appeal from that decision in State of New South Wales v Wojciechowska & Ors (S39/2024) do not change their positions that in determining a review under the TA Act, the Tribunal is not exercising judicial power.

1. Whether the Tribunal exercises administrative or judicial power requires consideration of the statutory framework. This in turn requires consideration of the assessment process and the function of the Tribunal in reviewing an assessment.

Liability to tax, assessments, challenges to assessments and collection of tax

1. The TA Act is a taxation law and makes general provision for the administration and enforcement of other taxation laws such as the Duties Act: s 4 of the TA Act. Whilst the TA Act makes general provisions, the other taxation laws make provision for the imposition and payment of tax: s 7(2) of the TA Act.
2. Duty is created and charged by the Duties Act itself: s 3 of the Duties Act. This is also reflected in the Long Title of the Duties Act:

"An Act to create and charge a number of duties."

1. The Duties Act has been described as levying duty on transactions: ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue (NSW) (2012) 245 CLR 338; [2012] HCA 6 at [8]; Chief Commissioner of State Revenue v Dick Smith Electronics Holdings Pty Ltd (2005) 221 CLR 496; [2005] HCA 3 at [15].
2. Duty is imposed on transfers of and other transactions in relation to dutiable property pursuant to s 8 of the Duties Act. Dutiable property includes land in NSW: s 11 of the Duties Act. The transferee or the person taken to be the transferee (s 9 of the Duties Act) is (generally) liable to the duty, which arises when the transfer occurs: ss 12 and 13 of the Duties Act. Duty at a specified rate is payable on the dutiable value of the property, which is the greater of the consideration or the unencumbered value of the dutiable property: s 19 of the Duties Act. Certain concessions or exemptions apply: s 20 of the Duties Act; and see for instance s 68 of the Duties Act.
3. To avoid a "tax default" as contemplated by the TA Act, duty must be paid within 3 months of the liability to pay duty arising: s 17 of the Duties Act.
4. Accordingly, duty arises by operation of the statute.
5. Once the liability to pay duty is created, the duty charged is a debt due to the State of New South Wales: s 4 of the Duties Act.

1. The TA Act makes provisions for the making of assessments and for objections to those assessments: s 7(3) of the TA Act.
2. An assessment under the TA Act means an assessment made by the Chief Commissioner under Part 3 of the tax liability of a person under a taxation law. This includes a liability to duty: see the definition of a tax in s 3 of the TA Act read with the meaning of a taxation law in s 4. The Chief Commissioner has the power to make an assessment (s 8 of the TA Act) and an assessment also includes an assessment by the Supreme Court or the Tribunal on an application for review: s 3 of the TA Act.
3. The Chief Commissioner may make a reassessment in certain cases and such a reassessment must be (unless there has been a change in law) in accordance with the legal interpretations and assessment practices generally applied by the Chief Commissioner in relation to matters of that kind and at that time: s 9 of the TA Act; Molyneux and Vermeesch v Chief Commissioner of State Revenue (RD) (No 2) [2013] NSWADTAP 41 at [31], [46], [69].
4. The Chief Commissioner may issue a notice of assessment: s 14 of the TA Act. The notice of assessment provides conclusive evidence of the due making of the assessment and, save in respect of proceedings under Part 10 of the TA Act, that the amount and all particulars of the assessment are correct: s 119 of the TA Act.
5. The Duties Act also provides that the person liable to duty must lodge with the Chief Commissioner a written statement or instrument: s 16 of the Duties Act. Further, where an instrument is "stamped" by the Chief Commissioner, this operates as an assessment of the duty payable and if a notice of assessment is not issued in accordance with the TA Act, then the stamped instrument is taken to be a notice of assessment: s 297 of the Duties Act.

1. In the context of income tax, the assessment function has been described as not "discretionary": Bellinz Pty Ltd v Commissioner of Taxation (Cth) [1998] FCA 615; (1998) 84 FCR 154 (Bellinz) at 166. Even if the outcome is unfair or likely to cause hardship or inconvenience, the Chief Commissioner is not relieved from applying the relevant statutory provisions and issuing an assessment: Commissioner of Taxation v Ryan (2000) 201 CLR 109; [2000] HCA 4 (Ryan) at [19]-[22].
2. The same may be said in relation to state taxes. In making an assessment, the Chief Commissioner is not exercising a discretion as to whether or not to levy tax. Leaving aside the particular power to issue a compromise assessment under s 12 of the TA Act (which is not sought to be relied on here) there is no "discretion" in the assessment of duty. As noted in BBLT Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 1003 at [111]:

"... with few exceptions the courts have concluded that estoppel does not lie against a fiscal authority on the basis that the authority cannot be prevented from carrying out the public duties cast upon it by the legislation (Federal Commissioner of Taxation v Wade [1951] HCA 66; (1951) 84 CLR 105, AGC (Investments) Ltd v Federal Commissioner of Taxation 91 ATC 4180, Federal Commissioner of Taxation v Australia & New Zealand Savings Bank Ltd (1994) 181 CLR 466, Bellinz v Federal Commissioner of Taxation [1998] FCA 615; (1998) 84 FCR 154, Oamington Pty Ltd (Receiver & Manager Appointed) v Commissioner of Land Tax 98 ATC 5051)."

1. Further, as noted in Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325; [2007] FCAFC 16 (Indooroopilly) in the context of the fringe benefits tax, there is a duty to follow the law. In Indooroopilly at [3] the Full Court of the Federal Court said:

"From the material that was put to the Full Court, it was open to conclude that the appellant was administering the relevant revenue statute in a way known to be contrary to how this court had declared the meaning of that statute. Thus, taxpayers appeared to be in the position of seeing a superior court of record in the exercise of federal jurisdiction declaring the meaning and proper content of a law of the parliament, but the executive branch of the government, in the form of the Australian Taxation Office, administering the statute in a manner contrary to the meaning and content as declared by the court; that is, seeing the executive branch of government ignoring the views of the judicial branch of government in the administration of a law of the parliament by the former. This should not have occurred. If the appellant has the view that the courts have misunderstood the meaning of a statute, steps can be taken to vindicate the perceived correct interpretation on appeal or by prompt institution of other proceedings; or the executive can seek to move the legislative branch of government to change the statute. What should not occur is a course of conduct whereby it appears that the courts and their central function under Ch III of the Constitution are being ignored by the executive in the carrying out of its function under Ch II of the Constitution, in particular its function under s 61 of the Constitution of the execution and maintenance of the laws of the Commonwealth."

1. In Tran v Minister for Immigration and Multicultural Affairs (2006) 154 FCR 536; [2006] FCA 1229 Rares J said at [9] that "[i]t is the duty of the executive branch of government to obey the law as laid down by the Parliament and the Courts, even if the executive does not agree with those decisions".
2. At least with respect to duties under the Duties Act, the liability to tax arises by operation of the Duties Act. The assessment function requires the determination of taxable facts (such as whether a transfer of dutiable property occurred and the dutiable value of the dutiable property) and application of those taxable facts to tax laws: by analogy, Batagol v Commissioner of Taxation (Cth) [1963] HCA 51; (1963) 109 CLR 243 at 251-252.
3. This does not gainsay that in calculating an assessment, certain discretions may be enlivened, such as to remit interest: s 25 of the TA Act. With respect to the remission of interest, the Chief Commissioner may issue guidelines which are to be followed: s 25(3) of the TA Act.

1. One further point should be made. Section 61 of the TA Act provides:

61 General administration of the taxation laws

The Chief Commissioner has the general administration of this Act and the other taxation laws and may do all such things as are necessary or convenient to give effect to this Act and the other taxation laws.

1. That the Chief Commissioner has general administration of the TA Act, does not however mean that the assessment process is discretionary, or up to the whim of the Chief Commissioner.
2. The power of general administration does not give the Chief Commissioner discretion to modify a tax liability imposed by a statute: Macquarie Bank Limited v Commissioner of Taxation [2013] FCAFC 119 at [11].
3. Whilst the Chief Commissioner may have administrative discretion about where resources are spent, including when he will spend time and resources on audits or recovery, this does not make the assessment process discretionary.
4. For the reason that an assessment is not discretionary, the Chief Commissioner is not in a position to decide that the preferable decision is to make an assessment of a nil amount of liability, were he to consider that the High Court of Australia would, tomorrow, overturn Gazzo, which would in turn lead to an assessment of an amount greater than nil, being set aside (assuming Gazzo is not distinguishable). Whether this circumstance might lead the Chief Commissioner to refrain from investigating whether a particular transaction is dutiable is not to the point. Such a decision is not the subject of the Tribunal's review function. The Tribunal reviews the assessment.
5. Even though s 63(2) of the ADR Act gives the Tribunal the power to exercise all the functions of the Chief Commissioner who made the assessment, this must be read to be limited to the functions referable to making the assessment (such as exercising a discretion to remit interest or penalty) and not to extend to the Chief Commissioner's general powers of administration, including in relation to deciding which tax debts to pursue to recovery or when and where to expend resources more generally (such as which industries to subject to audit or greater scrutiny).
6. If in any doubt as to the appropriate course, the respondent may state a case on a question of law concerning an assessment to the Supreme Court for its opinion: s 106 of the TA Act.

1. A taxpayer may challenge an assessment pursuant to Part 10 of the TA Act. A taxpayer dissatisfied with an assessment may object and the Chief Commissioner must give notice of the determination of the objection: ss 86 and 93 of the TA Act. A taxpayer dissatisfied with an objection decision (or where the objection has not been determined within 90 days) may apply to the Tribunal for "administrative review" (s 96 of the TA Act) or for "review" by the Supreme Court (s 97 of the TA Act) of the decision.
2. In the case of a review by the Supreme Court, this is treated as an "appeal": s 97(4) of the TA Act. In the case of the Tribunal, this is said to be "administrative review" under the ADR Act (chapeau to s 96(1) of the TA Act).
3. In either case, the powers of the Tribunal or the Supreme Court include those identified in s 101(1) of the TA Act:

101 Powers of court or tribunal on review

(1) The court or tribunal dealing with the application for review may do any one or more of the following -

(a) confirm or revoke the assessment or other decision to which the application relates,

(b) make an assessment or other decision in place of the assessment or other decision to which the application relates,

(c) make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid,

(d) remit the matter to the Chief Commissioner for determination in accordance with its finding or decision,

(e) make any further order as to costs or otherwise as it thinks fit.

1. Insofar as the Tribunal is concerned, s 30(1) of the NCAT Act identifies that the ADR Act provides the circumstances under which the Tribunal has "administrative review jurisdiction" over a decision of an administrator. Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision if enabling legislation so provides. Here, the TA Act is the enabling legislation and by s 96 it gives the Tribunal administrative review jurisdiction, on condition that an assessment "has been the subject of an objection".
2. Section 101(2) of the TA Act provides that Division 3 of Part 3 of Chapter 3 of the ADR Act continues to apply. This includes ss 63 to 66.
3. These sections provide:

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

64 Application of Government policy

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

(2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.

(3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.

(4) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

(5) In this section:

Government policy means a policy adopted by:

(a) the Cabinet, or

(b) the Premier or any other Minister,

that is to be applied in the exercise of discretionary powers by administrators.

65 Power to remit matters to administrator for further consideration

(1) At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:

(a) affirm the decision, or

(b) vary the decision, or

(c) set aside the decision and make a new decision in substitution for the decision set aside.

(3) If the administrator varies the decision:

(a) the application is taken to be an application for review of the decision as varied, and

(b) the person who made the application may either:

(i) proceed with the application for review of the decision as varied, or

(ii) withdraw the application.

(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:

(a) the application is taken to be an application for review of the new decision, and

(b) the person who made the application may either:

(i) proceed with the application for review of the new decision, or

(ii) withdraw the application.

66 Effect of administrative review decision

(1) A decision determining an application for an administrative review under this Act of an administratively reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision.

(2) If any such decision varies, or is made in substitution for, an administrator's decision, the decision of the Tribunal is taken:

(a) to be the decision of the administrator (other than for the purposes of an administrative review under this Act), and

(b) to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise.

1. In addition to s 101(1) of the TA Act, under the ADR Act, the Tribunal must give effect to Government policy (as defined) (s 101(2)(a) of the TA Act and s 64 of the ADR Act) and may, on an interim basis, remit the matter to the Chief Commissioner in circumstances where the original decision or any varied decision may come back to the Tribunal to continue with the review: s 65 of the ADR Act. Also, and highly relevant, is that under s 66 of the ADR Act, the decision of the Tribunal operates as a decision of the Chief Commissioner.
2. Once a review in the Tribunal or the Supreme Court is finalised, the respondent must take action to give effect to the decision, including by amending relevant assessments: s 102 of the TA Act.
3. Relevantly, s 103A of the TA Act provides:

103A Review or appeal by other courts or tribunals

(1) No court or tribunal (or other body or person) has jurisdiction or power to consider any question concerning an assessment or other decision of the Chief Commissioner under a taxation law (including the determination of an objection under Division 1) except as provided by this Part.

(2) Subsection (1) does not apply to a decision of the Chief Commissioner under Part 4, 7, 8, 9 or 11 (not being an assessment).

1. Section 103A was considered in Fyna Projects Pty Ltd v Chief Commissioner of State Revenue [2018] NSWSC 1220 at [56]- [59] (Fyna). The provision mandates that the only way to challenge the quantum of an assessment is under Part 10 of the TA Act (that is, under ss 96 or 97), save in respect of jurisdictional error: Fyna at [58]. However, even where there is jurisdictional error, this may not constitute a defence to recovery proceedings and separate proceedings might need to be pursued: by analogy, Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation [2017] NSWCA 17 at [50].
2. Further still, what constitutes jurisdictional error may comprise a very limited class. In the context of income tax, the ambit of jurisdictional error may be limited to conscious maladministration, due to the presence of provisions analogous to ss 16 and 119 of the TA Act (discussed further below): Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Limited (2008) 237 CLR 146; [2008] HCA 32 at [45] and [55]-[56], concerning the then ss 175 and 177 of the Income Tax Assessment Act 1936 (Cth) (ITAA) (a provision equivalent to s 177 is now found in item 2, cl 350-10 in Sch 1 to the Taxation Administration Act 1953 (Cth)); see also Lyons v Commissioner of Taxation [2020] FCA 651 at [209]; Deputy Commissioner of Taxation v Advanced Holdings Pty Ltd [2019] FCA 1917 at [27].
3. Appeals from the Tribunal at first instance are as of right on a question of law, or with leave, to the Appeal Panel: s 80 of the NCAT Act. Appeals from the Appeal Panel may be made with leave of the Supreme Court on a question of law; and in such an appeal, the Court may (inter alia) affirm, vary or set aside the decision: s 83 of the NCAT Act. Appeals from NCAT are heard in the Court's appellate jurisdiction: s 19(2) and 75A of the Supreme Court Act 1970 (NSW) (Supreme Court Act).

1. As noted above, liability to duty is a debt to the State of NSW. However, relevant to collection of tax, s 43 of the TA Act provides that tax that is payable is payable to the Chief Commissioner. Where a notice of assessment has been issued, s 44 of the TA Act is engaged and provides:

44 Unpaid tax is debt payable to Chief Commissioner

(1) If the whole or part of tax payable by a taxpayer is not paid to the Chief Commissioner as required by a notice of assessment, the amount unpaid is a debt payable to the Chief Commissioner by the taxpayer.

(2) A debt payable by a taxpayer to the Chief Commissioner under this Act is a tax debt under this Act.

1. Despite the objection and review process, recovery of the tax may occur in the meantime (ss 94 and 103(1) of the TA Act); although the powers of the Court or Tribunal to grant a stay of the assessment are not affected (s 103(2) of the TA Act).
2. The Chief Commissioner may collect tax from a third person who owes money to a taxpayer whose tax debt remains unpaid: s 46 of the TA Act. This requires no curial intervention. Further, the Chief Commissioner may act under the State Debt Recovery Act 2018 (NSW) (the Recovery Act) to recover a state debt which includes a tax debt as comprehended by the TA Act: ss 5, 6 and 8 of the Recovery Act. The types of recovery action that may be taken include: a property seizure order (s 54); a garnishee order (s 55); and registering a debt recovery order as a charge over land (s 56). There is a process that must be undertaken to get to the point of making any such order and a debtor may elect to have the matter determined by a court: s 44 of the Recovery Act.
3. In relation to any recovery proceedings, s 103A of the TA Act would be relevant, as would ss 16 and 119 of the TA Act, which provide, respectively, for the validity and conclusivity of the assessment and its particulars.
4. Section 16 of the TA Act provides:

16 Validity of assessment

The validity of an assessment is not affected because a provision of a taxation law has not been complied with.

119 Evidence of assessment

Production of a notice of assessment, or of a document signed by the Chief Commissioner purporting to be a copy of a notice of assessment, is -

(a) conclusive evidence of the due making of the assessment, and

(b) conclusive evidence that the amount and all particulars of the assessment are correct, except in objection or review proceedings when it is prima facie evidence only.

1. In the context of income tax, the particulars of an assessment include the taxable income and the amount of tax due. In Deputy Commissioner of Taxation (Cth) v Clyne (1982) 12 ATR 738 at 742-743, Hunt J considered the meaning of the term "particulars of assessment" in the context of s 177 of the ITAA and said:

"What the Commissioner is bound by s 166 to assess is the amount of the taxable income and the amount of the tax payable thereon. These amounts are the only 'particulars of the assessment' to which s 177 refers. This means that the 'Taxable Income' stated at the top of the notice and the figure in the first column under the heading 'Tax Assessed' are conclusively established by the production of the notice. It is also submitted by the Deputy Commissioner that the particulars stated of any additional tax imposed by way of penalty for a late or an incorrect return would similarly be conclusively established also: see Richardson v FCT [1932] HCA 67; (1932) 48 CLR 192 at 202-204, 215. That submission may well be correct. But none of the other items on the notice which form part of the equation leading to the end balance payable is a particular of the assessment which attracts the evidentiary provisions of s 177. They might perhaps in some circumstances be properly described as particulars of the notice, but they are not, in my view, particulars of the assessment itself. And it is only the latter category of particulars which comes within s 177."

1. By analogy, the particulars of the duties assessment would include the amount of duty (the tax liability): s 8 of the TA Act.

1. Of some relevance to this proceeding is s 101(1)(c) of the TA Act, which gives express power to the Tribunal to "make an order for payment" to the Chief Commissioner. This would then enliven s 78 of the NCAT Act concerning the recovery of amounts. In summary, s 78 of the NCAT Act allows a person with the benefit of an order for payment of an amount, to obtain a certificate from the Registrar which may be filed with a court, whereupon it operates as a judgment of a court.
2. We pause to mention that the respondent eschewed reliance on s 101(1)(c) of the TA Act. No order for a payment of an amount was sought. Had one been sought, then there would have been a stronger case for the Tribunal to be exercising judicial power, at least insofar as concerns the functions of determining the correct amount to be paid. This would require determination of the correct (and preferable insofar as any discretions are involved) amount of tax and the amount of that liability that had already been paid (if any) and to calculate the net amount outstanding. Then the Tribunal's order could be treated as a judgment of a court under the process in s 78 of the NCAT Act. We note that s 78 of the NCAT Act was material to the decision in Wojciechowska at [137]-[144], where it was decided that the Tribunal exercises judicial power in applications for "administrative review" from decisions under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) (we note that this decision is the subject of an appeal to the High Court of Australia which was heard on 5 and 6 February 2025 and reserved).
3. A provision similar to s 78 of the NCAT Act was material to the decision in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10 (Brandy). In Brandy, the High Court held (at 264) that a legislative provision providing for a determination of the Human Rights and Equal Opportunity Commission to be registered and enforced "as if it were an order of the Federal Court" was invalid as it purported to confer judicial power on the Commission.
4. In circumstances where no order for payment of an amount was sought, we see the powers and functions being exercised in relation to making an order under s 101(1)(c) as discrete from the other powers. Where such an order is sought the first step is to determine the amount of the assessment, another step is to determine how much of the tax liability has been paid and finally it is necessary to determine the net amount outstanding. This is a different task to determining the quantum of an assessment, even though the first step is the same.
5. We are conscious of the fact that whether such an order is sought is a matter for one of the parties (likely the respondent) and we have some disquiet in suggesting that whether the Tribunal exercises judicial power or administrative power is affected by choices a party makes. Nevertheless, this was not an order sought in these proceedings and s 78 of the NCAT Act is not here engaged.
6. This is consistent with Wojciechowska at [144].

1. In summary, the liability to duty arises by operation of the Duties Act. This is a debt due to the State of NSW but may be recovered as a debt due to the respondent. The respondent's function is to calculate the tax, make an assessment of the duty payable and to issue a notice of assessment. The notice of assessment then operates as conclusive evidence of the validity and due making of the assessment and that the amount of the tax debt is correct. Save for jurisdictional error, the only way to challenge the quantum of an assessment is in the Supreme Court or the Tribunal under Part 10 of the TA Act.
2. The role of the Tribunal (or the Court) under Part 10 (assuming no order for payment is sought) is to determine the correct amount of duty (and, as relevant, interest or penalty) payable. This may involve the exercise of a discretion (such as whether to remit interest) but otherwise the assessment function is not discretionary. The determination requires ascertaining the taxable facts and applying the law.
3. Once the Tribunal (under s 96 of the TA Act) or the Supreme Court (under s 97 of the TA Act) has determined a review, then, subject to appeal rights (and jurisdictional error), the quantum of the assessment is no longer open to challenge in any forum.
4. The tax debt may be recovered by curial and some non-curial means.
5. Tax debts are the creature of statute; but a tax debt is nonetheless a legal obligation to pay: Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473; [2008] HCA 41 (Broadbeach) at [51]. Correspondingly, the State of NSW (through the Chief Commissioner) has the legal right, which arises outside the review mechanism, to be paid tax debts. In Broadbeach at [51] and [55], the High Court described the nature of statutory tax debts as debts due to the Commonwealth arising by force of the provisions of the taxation legislation, whereby "the source of the debt is to be located in the statutory consequences given to an assessment". The legal rights and obligations arise outside the review process but may be affected by it.
6. Whilst the Chief Commissioner would, as a matter of practicality, always rely on a notice of assessment to prove a tax debt, he could seek to prove the debt aliunde: by analogy, see Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168 at 181; [1995] HCA 23 and Deputy Commissioner of Taxation v Faint [1988] 2 Qd R 494 at 497. This further demonstrates that the legal rights and obligations arise outside the Part 10 process with which we are here concerned.
7. The separation of the process by which the quantum of the assessment is challenged and tax is collected mirrors the system in relation to Commonwealth taxes, which in the case of the Commonwealth taxes is mandated by the Constitution.

Similarities and differences between the functions and powers of the Court and the Tribunal under Part 10

1. There are many similarities between the functions of the Supreme Court of NSW and the Tribunal under Part 10. Each may do the following:

(1) Determine the correct amount of tax by determining the taxable facts and applying those facts to the relevant laws which impose and relieve tax.

(2) Exercise any discretions afresh: Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (2011) 245 CLR 446; [2011] HCA 41 (Tasty Chicks) at [18]-[20]. We reiterate that this does not mean that the assessment function itself is discretionary and neither the Supreme Court nor the Tribunal exercises any discretion as to whether or not the taxpayer should be assessed in the first place, although, with respect to reassessment, the Chief Commissioner's general practices would be followed.

(3) Follow certain guidelines issued by the executive or the Chief Commissioner's practices: Salvation Army (New South Wales) Property Trust v Chief Commissioner of State Revenue (2018) 96 NSWLR 119; [2018] NSWSC 128 (Salvation Army) at [36]-[38], [153]-[155]; ss 9(2) and 25(3) of the TA Act.

(4) Determine the correct and preferable decision by finding the legally correct position and exercising the discretions in the preferable way: SPIC Pacific Hydro Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 395 (SPIC) at [55].

(5) Make an assessment (that is to say, calculate the tax levied under the Duties Act).

(6) Remit to the Chief Commissioner for redetermination.

(7) Make orders concerning the payment of outstanding tax, under s 101(1)(c) of the TA Act (and insofar as the Tribunal is concerned, by operation of s 78 of the NCAT Act, the order for payment of an amount could operate as a judgment of a Court).

1. In each case, once a decision is made, the Chief Commissioner must take necessary steps to give effect to the decision (such as amend the assessment).
2. Either the Supreme Court or the Tribunal could be the final arbiter of the quantum of tax owing (subject to appeal and jurisdictional error). Even without making an order for the payment of an amount to the Chief Commissioner under s 101(1)(c) of the TA Act, by virtue of ss 16 and s 119 of the TA Act, the quantum of the tax liability under an assessment is conclusive outside Part 10 proceedings. The tax debt may then be recovered by curial and non-curial means. In this sense, at least, the decisions of the Tribunal on review are enforceable.
3. There are also differences:

(1) The Tribunal is not a Chapter III Court: Gatsby.

(2) The Tribunal's source of power for review is the ADR Act in conjunction with the TA Act, whereas the Court's jurisdiction is not derived from the ADR Act.

(3) The review in the Tribunal is styled "administrative review". Taxation reviews in the Supreme Court are in the vein of an "appeal" within the meaning of s 19(2) of the Supreme Court Act and subject to the provisions of s 75A of that Act and s 101 of the TA Act: Tasty Chicks at [13]-[17]. Under s 75A(10) of the Supreme Court Act, the Court may make any assessment "which ought to have been given or made or which the nature of the case requires".

(4) In exercising its functions under the NCAT Act, the Tribunal need not always be constituted by an Australian lawyer; however, the President of the Tribunal is a Judge of the Supreme Court of NSW and the Deputy President and Division Head of the Administrative and Equal Opportunity and Occupation Divisions is a Judge of the District Court.

(5) Whilst the Tribunal frequently exercises judicial power, such as in anti-discrimination cases or in matters under the Commercial and Consumer Division, it also clearly exercises administrative power in some cases, such as in relation to the provision of government information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act): see Wojciechowska at [104]-[105], noting this aspect of the Court of Appeal's judgment was not challenged on appeal in the High Court.

(6) The ADR Act provides that the Tribunal stands in the shoes of the Chief Commissioner and can exercise all the functions of the Chief Commissioner and the decision of the Tribunal is taken to be a decision of the Chief Commissioner (s 63(2) and (66)(2) of the ADR Act).

(7) The Tribunal is expressly required to give effect to government policy: s 64 of the ADR Act.

1. As is apparent, the system for adjudicating tax disputes in NSW, at least to a large extent, mirrors that in relation to Commonwealth taxes. However, there can be no question that the Commonwealth tribunal, until recently the Administrative Appeals Tribunal and now the Administrative Review Tribunal, exercised and exercises administrative power in ascertaining the correct amount of an assessment. The Commonwealth Tribunal has no judicial power: Re Adams at 245.
2. In Nguyen v Commissioner of Taxation (2018) 265 FCR 355; [2018] FCA 1420, Kenny J considered whether the Taxation Administration Act 1953 (Cth) impermissibly required the Administrative Appeals Tribunal to exercise federal judicial power when reviewing the opinion of the Commissioner of Taxation that there had been fraud or evasion. Her Honour stated at [142]-[144] that:

"142 It is well-established today that there are functions, which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not, as Deane, Dawson, Gaudron and McHugh JJ observed in Brandy at 267, with reference to Precision Data Holdings Ltd v Wills [1991] HCA 58; 173 CLR 167. In Precision Data, the High Court said, at 189:

... although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power.

It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised. So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power. That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles.

(Footnotes omitted)

143 Under the amending legislation introduced after British Imperial Oil, the newly created Board of Review was held to exercise administrative power, and not judicial power, bearing in mind that:

(a) it was named a Board of Review, and not a Board of Appeal

(b) the powers of the new Board of Review were assimilated to those of the Commissioner, and not those of the courts;

(c) the decisions of the Board of Review were mostly deemed to be those of the Commissioner;

(d) the Commissioner and the taxpayer were able to appeal to a court on a question of law;

(e) appeals from the Board of Review lay to a court in its original, rather than its appellate, jurisdiction; and

(f) the evident legislative intention was to create an administrative body to give practical reconsideration to taxation matters without the complexity, expense and delay of legal proceedings.

See Munro at 181-183; and Shell at 541-545.

144 The position of the Tribunal is not identical to the Board of Review; indeed some differences have already been noted: see [117] above. There are, however, a number of considerations that, in my opinion, lead to the clear conclusion that the Tribunal exercises administrative, and not judicial, power. These considerations include that:

(a) the Tribunal is named the Administrative Appeals Tribunal and specifically described as an administrative tribunal;

(b) the Tribunal may exercise all the powers and discretions conferred on the Commissioner (AAT Act, s 43(1));

(c) if a matter involves the exercise of a discretion (for example, where remission of a penalty is sought) the Tribunal has the power to substitute its own decision if it considers the Commissioner's decision is not the preferable one (AAT Act, s 43(1));

(d) a decision made by the Tribunal in substitution for a decision of the Commissioner shall be deemed to be a decision of the Commissioner (AAT Act, s 43(6));

(e) the Commissioner or the taxpayer (or other party to the Tribunal proceeding) may appeal to the Federal Court from the decision of the Tribunal on a question of law (AAT Act, s 44(1));

(f) the hearing and determination of any such appeal from the Tribunal is an exercise of the original jurisdiction of the Federal Court, rather than its appellate jurisdiction (AAT Act, s 44(3)-(10); Federal Court of Australia Act 1976 (Cth), s 19); and

(g) the clear legislative intention is to confer power on an administrative body to review certain decisions of the Commissioner efficiently and without the complexity and expense of legal proceedings: see AAT Act, s 2A; Administration Act, s 14ZZK.

1. Her Honour found that there was no requirement to exercise judicial power: at [148].
2. Given the similarity between the federal and state processes, we are particularly mindful of her Honour's reasoning. However, we note that there are some differences. For instance, in relation to state taxes, the Supreme Court may exercise discretions afresh. Also, on an appeal from the Tribunal, the Supreme Court does not exercise original jurisdiction: ss 19(2) and 75A of the Supreme Court Act; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [10]; B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [147]- [150].

The exercise of judicial power or administrative power

1. The High Court has commented that it is not possible to exhaustively define "judicial power": Brandy at 257. Nevertheless, the classic formulation was that stated in Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 at 357; [1909] HCA 36, in which "judicial power" was said to mean:

"... the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action."

1. At its core, judicial power involves "the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion": Fencott v Muller (1983) 152 CLR 570 at 608; [1983] HCA 12. A justiciable controversy is one which calls for an "immediate right, duty or liability to be established by the determination of the Court" or, put another way, the determination of pre-existing rights: In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265.
2. While "no single combination of necessary or sufficient factors identifies what is judicial power" (Attorney-General (Cth) v Alinta Limited (2008) 233 CLR 542; [2008] HCA 2 at [93]), there are certain factors which, while not being individually dispositive, may indicate that a power is judicial power.
3. In Citta Hobart at [54], Edelman J observed that High Court authorities suggest there are five elements of judicial power (footnote omitted):

"... (i) a decision following a process of inquiry including finding of facts and application of law; (ii) that settles for the future; (iii) a dispute between defined persons or classes of persons; (iv) as to the existence of a legal relation between them; (v) creating a binding norm by reference to which that legal relation will be applied in the future."

1. The ability to make orders capable of being enforced has also been referred to as an "essential element in the exercise of judicial power" (Brandy at 256; see also Rola Co (Australia) Pty Ltd v Commonwealth [1944] HCA 17; (1944) 69 CLR 185 at 199; [1944] HCA 17), although enforceability is not an "exclusive test" (Brandy at 257).
2. Outside of the core of judicial power, there is said to be a "borderland", within which "a particular act or thing done by a court through the application of a judicial process might equally be achieved through the application of a non-judicial process": Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5 at [47].
3. In the "borderland", the nature of the powers being exercised are characterised by examining the "legislative setting, the character of the decision-maker and the nature of the decision-making process": Brandy at 258.
4. The "chameleon doctrine" describes conferrals of power where "some functions may, chameleon like, take their colour from their legislative surroundings or their recipient": R v Quinn; Ex parte Consolidated Foods Corp [1977] HCA 62; (1977) 138 CLR 1 at 18.
5. Chameleon powers may be manifest in circumstances where the rights at issue are created by statute: R v Quinn; Ex parte Consolidated Foods Corp [1977] HCA 62; (1977) 138 CLR 1 at 10; [1977] HCA 62. In such circumstances:

"the question is whether the features are inconsistent with the power, when it is vested in an administrative officer, being an administrative power; and the answer is that none of the features is exclusively related to judicial power and they are therefore not inconsistent with administrative power."

1. Given this, the real question for us is whether the nature of the powers being exercised by the Tribunal (or any aspect of them) are inconsistent with the exercise of administrative power.
2. In Wojciechowska, the NSW Court of Appeal identified factors which may be suggestive of whether the Tribunal is exercising judicial or administrative power. In summary, they include:

(1) Whether, in the exercise of its decision-making functions:

(a) the functions form part of governmental administration (at [72]);

(b) the Tribunal is stepping into the shoes of the administrator (at [73]);

(c) the Tribunal must determine what is the correct and preferable decision (as opposed to determining a controversy between the parties) (at [73]-[74]);

(d) the functions substantially involve factual assessments (at [75]);

(e) the functions involve the making of value judgments or policy evaluations (at [76]);

(f) any legal determinations are conclusive, or whether the determination of legal rights and duties merely form a step in the decision-making path (at [79]);

(g) the Tribunal is only enforcing rights derived from statute as opposed to independent rights existing outside of the particular statutory scheme (at [82]-[84]);

(h) the issues are ones which were historically determined by courts (at [85]);

(i) the effects of the type of decision in question (at [86]);

(2) As to the nature and process of the decision-maker, whether:

(a) the functions have been conferred on a non-judicial body (at [89]);

(b) the decision-making body is constituted by judicial officers or non-lawyers (at [90] and [96]);

(c) the procedure is curial in nature (at [90]-[94]);

(3) As to the outcome of the decision and the effect of the Tribunal's orders:

(a) the nature of the obligations imposed on the parties by the orders (at [97]);

(b) whether the orders the Tribunal can make depend on the finding of a contravention of a legal norm or duty (at [131] and [134]);

(c) whether the decision of the Tribunal can be given force as an order of a court (at [140]).

1. Using the factors referred to in Wojciechowska as a guide, we now turn to consider whether the Tribunal exercises judicial or administrative power in undertaking its review functions under s 96 of the TA Act.

Whether the functions form part of governmental administration

1. In Wojciechowska, at issue was the characterisation of the power exercised by the Tribunal under the GIPA Act and PPIP Act. The Court observed that both statutes regulate record-keeping by public sector agencies and do not extend to regulating access to information held by non-governmental entities or persons. Accordingly, decision-making under those Acts is an aspect of government administration.
2. The imposition of taxation is a core aspect of governmental administration. The Chief Commissioner has administration of the TA Act: s 61 of the TA Act. It is always the Chief Commissioner who collects tax. Only the Chief Commissioner may issue a notice of assessment: s 14(1) of the TA Act.
3. This factor points to the Tribunal exercising administrative power.

Whether the Tribunal is stepping into the shoes of the administrator and must determine what is the correct and preferable decision

1. A quintessential characteristic of administrative decision-making on review is that the Tribunal steps into the shoes of and applies the same criteria as the agency officer. In doing so, the role of the Tribunal is to determine what is the correct and preferable decision based on the material before it. The overarching purpose of a review is to ensure that the statutory process is correctly followed.
2. That characteristic is present here. As we have already noted, ss 63 to 66 of the ADR Act apply to reviews conducted in the Tribunal under s 96 of the TA Act.
3. Sections 63 to 66 have the effect of extending the decision-maker's functions to the Tribunal. In determining a review, the Tribunal is empowered to exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2)). If the Tribunal varies or substitutes the administrator's decision, the Tribunal's decision is taken to be the decision of the administrator (s 66(2)(a)).
4. The review is also styled an "administrative review" (though we note that this was not sufficient in Wojciechowska to preclude the Court deciding that in determining applications arising under the ADR Act, the Tribunal was nonetheless exercising judicial power).
5. This factor favours administrative power.

Whether the functions substantially involve factual assessments

1. In Wojciechowska, the Court noted that the decision-making process under the GIPA Act largely involved a factual assessment of whether documents sought to be accessed bore the character of being against the public interest to disclose. The Court observed that factual assessments will often entail the application of legal criteria, but that the assessment process itself is not "inherently judicial" (at [77]). This is because administrative schemes often require decision-makers to find facts and interpret and apply statutory criteria and the imposition of such strictures "is one of the main means by which the Parliament directs and controls the executive" (at [77]).
2. There is undoubtedly a large factual component to the assessment process. In making an assessment under the TA Act and Duties Act, the Tribunal is required to determine the relevant taxable facts and apply them to the taxing statutes. Nevertheless, this is a neutral factor.

Whether the functions involve the making of value judgments or policy evaluations

1. Section 64 of the ADR Act, which requires the Tribunal to "give effect to any relevant Government policy in force at the time the administratively reviewable decision was made", applies to administrative reviews under s 96 of the TA Act: s 101(2)(a) of the TA Act. In Wojciechowska, this consideration was said to be a factor which "militates against the decisions being characterised as involving judicial power" (at [80], citing Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167 at 191; [1991] HCA 58 (Precision Data)).
2. We note that s 25 of the TA Act permits the Chief Commissioner to issue guidelines about the remission of interest and that if any such guidelines are issued, the Chief Commissioner must follow them. Although, we are not aware of, and we were not directed to, any such guidelines. See also Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 (Wan) at [58].
3. In the case of a review of a reassessment, the Chief Commissioner's practices would be relevant: s 9 of the TA Act.
4. We note, however, that the Supreme Court, too, will apply any applicable policy in reviews under s 97 of the TA Act. For example, in Salvation Army and YWCA Australia v Chief Commissioner of State Revenue [2020] NSWSC 1798, the Court applied guidelines issued by the Treasurer about exemptions from duty for benevolent and charitable organisations.
5. This factor favours administrative power.

1. Under the GIPA Act, even where the Tribunal is required to engage in an assessment of legal issues such as whether a disclosure could reasonably be expected to "found an action against an agency for breach of confidence" (s 14 item 1(g) of the GIPA Act), any conclusions as to legal rights or duties are not determinative and are but one step in the decision-making path which is ultimately a weighing up of different factors: Wojciechowska at [79].
2. This may be distinguished from the case here where, once the Tribunal has determined the amount of the assessment and therefore the amount of the statutory debt, that amount is conclusive (save for appeals or jurisdictional error): ss 16 and 119 of the TA Act. The amount of the assessment cannot be challenged in recovery proceedings and the Chief Commissioner must take steps to give effect to the decision: s 102(1) of the TA Act.
3. This tends in favour of the power exercised being judicial and not administrative.

Whether the Tribunal is enforcing rights derived from statute or independent rights existing outside of the particular statutory scheme

1. Claims based on pre-existing rights that exist outside of a particular statutory scheme generally involve the exercise of judicial power: Wojciechowska at [82], citing Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 at 148; [1987] HCA 29 (Re Cram). Pre-existing rights might be found, as was the case in Re Cram for example, in an industrial award or in a contract or in the common law.
2. In Citta Hobart, the High Court (at [31]) described such rights as:

"... a legal right or legal duty having an existence that is not dependent on the commencement of a proceeding in the forum in which that controversy might come to be adjudicated."

1. In AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 278 CLR 512; [2023] HCA 26 at [70], Edelman J explained:

"Some rights, duties and liabilities are naturally possessed from birth. Other rights, duties and liabilities arise when things happen in the world. One of the things that happens in the world to give rise to rights, duties and liabilities is the making of court orders. The effect of a court order is usually to replace what the court has found to be a previously existing right, duty or liability with a new right, duty or liability 'of a higher nature' which is generally supported by the enforcement mechanisms of the State."

1. A taxpayer's rights and duties arise by operation of the taxation laws. They exist outside the forum in which the controversy (whether and to what extent a tax debt exists) comes to be adjudicated.
2. This tends to indicate that the Tribunal is exercising judicial power in conducting a review.

Whether the issues are ones which were historically determined by courts

1. Whether the issues were historically determined by courts can be relevant to assessing whether a power is administrative or judicial: Wojciechowska at [85], citing R v Davison [1954] HCA 46; (1954) 90 CLR 353 at 370; [1954] HCA 46 and Brandy at 258 and 267.
2. Under the TA Act, jurisdiction to review decisions of the Chief Commissioner was initially conferred on the Supreme Court alone. However, as noted in Tasty Chicks at [21], after the former Administrative Decisions Tribunal was established, the Act was amended to confer concurrent jurisdiction on the Tribunal.
3. In Wojciechowska, the applicant had argued, in support of her contention that the Tribunal was exercising judicial power under the GIPA Act, that an equivalent review right under the previous scheme, the Freedom of Information Act 1989 (NSW), was exercised by applying to the District Court and not to a tribunal. The Court rejected that argument, stating that at its highest it "illustrates that it is possible that such rights fall in that part of the spectrum that they could be conferred either on courts or tribunals" (at [81]). The Court also pointed out that, subject to the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24, there is no constitutional restriction on state courts exercising non-judicial power.
4. This is a neutral factor, in this case.

1. In relation to this factor, in Wojciechowska (at [86]) the Court of Appeal said:

"It can also be relevant to consider the effects of the type of decision in question. What is at issue here is access to information held by State agencies which an applicant would otherwise, in general, have no right to obtain. The applicant argued that rights granted under the GIPA Act are important. The force of that point is reflected in s 3 of the Act, referring to seeking 'to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective'. Even so, the effects of particular decisions on individuals is likely to be limited, and not of such significance as to suggest such issues can only be determined by courts. The scheme does not, for example, involve fundamental values such as liberty of the person: cf Alexander v Minister for Home Affairs (2022) 96 ALJR 560; [2022] HCA 19 at [73]."

1. The primary effect of the Tribunal's orders on review under the TA Act is to ensure the correctness of the assessment issued by the Chief Commissioner. A consequence of the determination of the notice of assessment is to confirm or vary the amount of the liability owed by the taxpayer.
2. Here the effect of the decision is that it conclusively determines the amount of the tax debt. This may lead to insolvency of the taxpayer or other pecuniary consequences. Absent a review (to the Tribunal or the Court) under Part 10 of the TA Act, the Chief Commissioner's assessment too might have this consequence. In this sense the effect of the decision is no different to that of the Chief Commissioner. However, Part 10 of the TA Act provides an avenue of review for the taxpayer.
3. This factor points to the power being judicial power.

The functions that have been conferred on the Tribunal

1. Some functions exercised by courts and tribunals evade straightforward characterisation as either judicial or administrative and fall into the "borderland" described above. Instead, the nature of the body the functions are reposed in takes on significance. In other words, the functions "may be classified as either judicial or administrative according to the way in which they are to be exercised": Precision Data at 189, quoted in Wojciechowska at [89]. The Court in Wojciechowska described this factor as "significant but not definitive".
2. NCAT is a tribunal and not a court of a State (Gatsby at [184], [204], [228]), but its functions are diverse. The Tribunal is conferred with general, administrative review, appellate and enforcement jurisdiction: ss 29-33 of the NCAT Act. Many of the functions of the Tribunal require an exercise of judicial power, such as in anti-discrimination (Citta Hobart being a prominent example of the nature of such power) and matters in the Consumer and Commercial Division.
3. In its administrative review jurisdiction, the Tribunal exercises all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). Many of the functions conferred on the Tribunal under the ADR Act are administrative (Wojciechowska, insofar as the GIPA Act is concerned, being an example).
4. This factor points towards administrative power.

1. Reinforcing the conclusion that the Tribunal is a non-judicial body is the constitution of its members.
2. As noted in Wojciechowska at [90], in certain categories of first instance proceedings the Tribunal does not need to be constituted by lawyers. In the Administrative and Equal Opportunity Division (AEOD), there are special requirements for the Tribunal to be constituted by an Australian lawyer when the Tribunal exercises its substantive Division functions under specific Acts: see Part 4, Sch 3 to the NCAT Act. For any other functions allocated to the Division under Sch 3, Part 3, cl 3 there is no such requirement. Many first instance panels comprise a combination of lawyers and general or specialist members who are not legally qualified.
3. However, in anti-discrimination matters, which have been accepted as requiring the exercise of judicial power, there is a panel presided by a legal member with a general (or lay) member: cl 4, Part 4, Sch 3 to the NCAT Act. Some types of proceedings in the Tribunal with a more curial character - for example, internal and external appeals, contempt and enforcement proceedings - are required to be heard by members with legal qualifications or a judicial appointment. In the case of appeals, at least one member of the panel must be an Australian lawyer; for contempt, only the President (who is a Judge of the Supreme Court) or a current or former NSW judicial officer may hear the proceedings: s 27 of the NCAT Act.
4. Nevertheless, it is the case that the Tribunal, when exercising functions under taxation legislation in the AEOD, is not required to be constituted by lawyers. This is a factor which weighs in favour of the Tribunal exercising administrative rather than judicial power.

1. The Tribunal is required to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible: ss 3(d) and 36(1) of the NCAT Act. In aid of this mandate, the Tribunal is empowered to determine its own procedure if the NCAT Act or rules do not otherwise make provision: s 38(1). Other than in very limited respects (legal discipline and enforcement proceedings), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2). The Tribunal is required to "act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms": s 38(4).
2. The Tribunal is also required to observe the principles of open justice by ensuring that it is accountable and has processes which are open and transparent: s 3(f) of the NCAT Act. Hearings are to be open to the public unless ordered otherwise: s 49(1) of the NCAT Act.
3. In the exercise of their functions, Tribunal members are given the same protection and immunities as a Judge of the Supreme Court: cl 4, Sch 2 to the NCAT Act.
4. The Tribunal has the same powers as the District Court in relation to contempt in the face or in the hearing of the Tribunal: s 73(1) of the NCAT Act. Other allegations of contempt are referred to the Supreme Court for determination: s 73(5).
5. This factor weighs in favour of administrative power.

The nature of the obligations imposed on the parties by the orders

1. Under the TA Act, the types of orders the Tribunal can make in determining an administrative review are delineated by s 101(1). The Tribunal can confirm or revoke an assessment, make an assessment in place of the assessment to which the application for review relates, remit the matter to the Chief Commissioner for determination in accordance with the Tribunal's finding and make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid. With the exception of the power to make an order for payment (which is not in issue here), the types of orders the Tribunal may make mirror the general powers of the Tribunal under s 63(3) of the ADR Act.
2. Those powers are directed to ensuring that the decision of the administrator is the correct and preferable one. Within 60 days after the decision on review becomes final, the Chief Commissioner must take any action necessary to give effect to the decision. This includes amending any relevant assessment: s 102(1) of the TA Act.
3. Consistently with Sidgreaves at [62], this factor weighs in favour of administrative power.
4. In this particular case, the nature of the orders sought suggests administrative power.

Whether the orders the Tribunal can make depend on the finding of a contravention of a legal norm or duty

1. In Wojciechowska (at [124]-[133]), the Court raised this factor within the specific context of the Tribunal's ability to award damages under the PPIP Act; that is, whether the award of compensation is necessary to remedy the breach of a legal norm. While the tax laws might create legal norms rather than administrative ones, the orders the Tribunal can make in a taxation review do not spring out of a finding that a legal norm has been breached.
2. Whilst the non-payment of a tax debt that arises from operation of statute leads to a tax default (s 3 of the TA Act), the Chief Commissioner may issue, and the Tribunal may review, an assessment even where the tax has been paid and there is no tax default. The orders therefore do not depend on the finding of a contravention of a legal norm.
3. This factor tends in favour of administrative power.

Whether the decision of the Tribunal can be given force as an order of a court

1. Under s 78 of the NCAT Act, only a money order can be given force as an order of a court. Section 78 provides for a Registrar of the Tribunal to certify the amount ordered to be paid by way of a certificate. The certificate may then be filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate. The certificate thereby operates as a judgment.
2. Under the TA Act, the Tribunal has power to make a money order under s 101(1)(c). However, no such order is sought by the Chief Commissioner in this case. Had one been sought, this would have been a powerful indicator that the Tribunal was exercising judicial power.
3. However, as mentioned above, we have taken this issue out of our consideration and its absence favours administrative power: Wojciechowska at [144].

1. On balance, for the reasons set out above, the Tribunal is exercising administrative power. There are more factors favouring administrative power than judicial power.
2. For the reasons outlined at [19]-[20] above, it follows that the Appeal Panel too is exercising administrative power.
3. In the event that it was determined the Tribunal has no jurisdiction to determine a proceeding, then the proceeding would be dismissed for want of jurisdiction: Wilson v Chan at [14]. This provides a reason why the Tribunal (and in this case the Appeal Panel) might not proceed to purport to determine the substantive issue in the proceedings: The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66 at [8].
4. However, we have concluded that we have authority to decide this matter and now proceed to determine the substantive application.

1. The decision of the Tribunal at first instance may be appealed as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds: s 80(2)(b) of the NCAT Act.
2. The principles are not in dispute here and were recently set out in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25] and Wan at [52].
3. The appellant's sole ground of appeal is that the Tribunal erred in finding that s 90 of the Family Law Act is not a valid law of the Commonwealth.
4. As discussed above, the Tribunal (and Appeal Panel) is not seized with jurisdiction to determine the question of whether s 90 is a valid law of the Commonwealth. Either, we have no jurisdiction to entertain the question at all (if we are exercising judicial power in these proceedings, because it raises a federal matter); or, in the exercise of administrative power, we may only form an opinion and act on that opinion: Re Adams at 245; Sunol at [18]-[20].
5. As provided by s 80(2)(b) of the NCAT Act, an appeal arises by right "on" a question of law. This means that the question of law must arise in the proceedings. The question of law becomes the subject matter of the appeal.
6. As we do not have authority to decide the Constitutional validity of s 90, the question of law of whether s 90 of the Family Law Act is valid, is incapable of arising on the appeal. That question is not a question of law that the Tribunal at first instance had jurisdiction to determine; and it is not a question of law that the Appeal Panel has jurisdiction to determine. To do so requires an exercise of federal judicial power (as explained above), which is beyond our authority.
7. In Sunol (at [18]-[20]) the Court of Appeal identified why a question of law concerning the constitutional validity of a provision, was not a question of law that arose in proceedings before the Administrative Decisions Tribunal (which was not invested with federal judicial power) and was therefore not a question of law that could be referred to the Court of Appeal to answer.
8. The Court of Appeal in Sunol (at [20]) said that the Administrative Decisions Tribunal did not have jurisdiction to answer that question. As noted, the High Court in Citta Hobart has said that Sunol should not be followed to the extent it is inconsistent with High Court's analysis of the nature of the power a State tribunal (invested with State judicial power) exercises when determining its own jurisdiction: at [26]. However, we do not see that the way in which we, here, follow Sunol is inconsistent with the High Court's analysis. The question is not whether the Tribunal had authority to determine its jurisdiction, but whether it had authority to decide whether s 90 is valid or not.
9. The question of whether the Tribunal has erred in forming an opinion on that question and proceeding on its opinion as to the validity of s 90, may not raise a question of law.
10. At the hearing, we noted that the Notice of Appeal did not seek leave to appeal, in the event that there was no appeal as of right. The appellant, whilst maintaining that a question of law arose, sought leave, to the extent it was necessary.
11. The principles of when leave to appeal might be granted were identified recently in Unique at [25]. As this question goes to the heart of the underlying issue, does not rely on disputed facts, raises an issue of importance and was fully argued by the parties, we would grant leave to the extent necessary.
12. Nevertheless, the question of law that arises and is consonant with the way in which the matter was argued before us, is whether the Tribunal was, when determining an administrative review concerning an assessment, bound by the doctrine of stare decisis, that is, bound to follow Gazzo.

1. At first instance, the Tribunal dealt with the competing contentions of the applicant and respondent: the applicant contended that Gazzo does not bind the Tribunal and that s 90 of the Family Law Act should be treated as validly exempting the appellant from liability to duties imposed by the respondent; and the respondent contended that the Tribunal is bound by Gazzo, and the notice of assessments issued by the respondent must be upheld since they cannot be undermined by s 90.
2. The Tribunal considered that it was bound by the doctrine of stare decisis and must follow the ruling of the High Court: at [64]. The High Court in Gazzo rendered invalid the relevant version of s 90 of the Family Law Act, which could not be said to be materially different to the current version of s 90: at [65]. The Tribunal said:

"65 This discussion leads inevitably to the conclusion that I must follow what the High Court decided in Gazzo - that s 90 of the Family Law Act, as it then stood, was not a valid law of the Commonwealth. It is not open to me to conclude, as the Applicant urges upon me, that Gazzo 'was wrong when decided'; or that s 90, 'both then and now, is and was a valid law of the Commonwealth'. Since I do not accept that the current version of s 90 is relevantly different from the earlier version struck down by the High Court, I conclude that the decision in Gazzo applies with equal force to the current version of s 90. Furthermore, it is entirely irrelevant whether or not I consider that Gazzo 'would be overturned if a case relying upon it were brought to the High Court'. Indeed, it would be somewhat presumptuous of me to express an opinion on that question one way or the other."

1. The facts of Gazzo concerned proceedings for the dissolution of marriage and property settlement between Mr and Mrs Gazzo. The husband transferred land to the wife as trustee for their children pursuant to an order of the Supreme Court of Victoria, and Victorian State Revenue then assessed it to stamp duty. Mrs Gazzo objected on the basis that the transfer was exempt under s 90 of the Family Law Act. The objection was disallowed as the Comptroller of Stamps considered s 90 invalid. Mrs Gazzo's appeal was then removed to the High Court of Australia.
2. The Court held that insofar as s 90 refers to a duty or charge under a law of a State, the section can only be sustained as valid if it is a law with respect to marriage under s 51(xxi) of the Constitution, divorce or matrimonial causes under s 51(xxii), or with respect to the incidental power under s 51(xxxix).
3. Three members of the Court (Gibbs CJ, Stephen and Aickin JJ) determined that s 90 did not have a sufficient connection to any of those heads of power. Mason and Murphy JJ dissented.
4. Gibbs CJ held that s 90 was invalid to the extent that it purported to exempt duties and charges under the laws of a State. In summary, Gibbs CJ reasoned that:

(1) Section 90 could only be valid if it was supported by a head of power under s 51 of the Constitution. The possible heads of power were the marriage power (s 51(xxi) of the Constitution), the power with respect to divorce and matrimonial causes (s 51(xxii)) and the incidental powers (s 51(xxxix)) (at 234).

(2) A law is not a law with respect to marriage only because it applies to married persons. A "sufficiently close" connection between the law and the marriage relationship must be demonstrated. It is not enough that "the law incidentally touches upon marriage" or that "Parliament has seized on the fact of marriage as a justification for the enactment of a law that really deals with some other topic" (at 235).

(3) The connection between s 90 and marriage or divorce and matrimonial causes is only "a remote one". This is because the purpose of the section is to remove a liability "that would otherwise be owed by a person (albeit a married person) to a State, under a law which does not take as the criterion of the liability anything related to the marriage or the matrimonial cause" (at 235).

(4) The incidental powers also do not support s 90. Incidental powers are those which enable the execution and fulfilment of laws enacted under a substantive head of power. Section 90 is not necessary to give effect to orders made under Part VIII of the Family Law Act. While liability to duty arising from the implementation of property settlement orders under Part VIII might be financially burdensome, it does not prevent a person from complying with the orders (at 235, 238).

1. Particularly relevant, for our purposes, is that the then Chief Justice focussed attention on that part of s 90 concerned with transactions in accordance with orders under Part VIII of the Family Law Act at 238-239.
2. Gibbs CJ concluded (at 239):

"For these reasons, although the provisions of s. 90 which exempt an instrument from the duty which it would attract under the general law have some connexion with the subject matter of the power granted by pars. (xxi) and (xxii) when the instrument exempted is one executed in accordance with an order of a court under the Family Law Act, those provisions cannot in my opinion be said to be necessary to render the order effective or to be reasonably incidental to the power."

1. Stephen and Aickin JJ each delivered separate opinions ruling that s 90 was invalid.
2. Stephen J held that s 90 is not a valid law of the Commonwealth in its purported application to any duty or charge under any law of a State (at 245). This was on the basis that the section "has no direct concern with the marriage relationship itself nor with relations between spouses, nor with children of the marriage" (at 241). Nor is it a law with respect to property redistributions or maintenance under Part VIII. Instead, it is a law "protecting those concerned with marriage or with divorce and matrimonial causes from State tax imposed by a law which does not have anything to do with marriage or with divorce and matrimonial causes as the criterion of tax liability" (at 244).
3. For Stephen J, it was critical that s 90 operates not between the parties to a marriage but "between a party to the marriage and a third party, being the State revenue authorities" or even between the State revenue authorities and a person who is "not any party to a marriage or to the divorce proceedings or other matrimonial cause" (at 244).
4. Aickin J focussed on whether s 90 creates, defines or declares rights or duties that arise out of or have a close connection with marriage or divorce and matrimonial causes. In Aickin J's view, s 90 did not create such rights, but instead "purports to destroy an obligation placed by State law on persons seeking to register transfers of land executed by them pursuant to an order of the Family Court" and thereby destroys the rights of third parties (at 267). Moreover, s 90 could not be considered incidental to the exercise of the powers vested in the Family Court. At 270, Aickin J said:

"It cannot be said, in my opinion, that s. 90 of the Family Law Act is in any way incidental to the fulfilment or exercise of the powers vested in the Family Court. It says nothing as to the fulfilment of the powers of the Family Court to make orders as to transfers of property between parties. Those orders stand complete and operative in themselves to bind the parties to do that which has been ordered and which, when done, will operate under State law."

1. A second issue the parties were asked to address on the appeal was whether the respondent is bound to follow Gazzo.
2. The appellant contended that the respondent is not bound to follow Gazzo as the case lacks precedential value. This argument was advanced on the basis that the judgment was in respect of a provision which was subsequently amended by Parliament; that doubts about its correctness have been expressed in later High Court judgments; that the overall reasoning in Gazzo has never been endorsed by subsequent High Court decisions; and that the decision is inconsistent with later High Court authorities such as Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21 (Tasmanian Dam Case), Victoria v Commonwealth (1996) 187 CLR 416; [1996] HCA 56 (Industrial Relations Case) and New South Wales v Commonwealth (2006) 229 CLR 1; [2006] HCA 52 (Work Choices Case).
3. The appellant also submits that, even if Gazzo did have precedential value, the respondent, and the Tribunal on review and appeal, would not be bound to follow it. This, the appellant submits, is because the Tribunal is not bound by precedent when it is exercising administrative rather than judicial power.
4. At first instance and on appeal, the appellant submitted that the respondent is not bound to issue an assessment and recover on it when doing so would ultimately be futile. This argument was made on the basis that, in the appellant's submission, the High Court will ultimately overrule Gazzo and find that s 90 of the Family Law Act is valid. The submission continues that the respondent, as a model litigant, has a duty to apply an exemption from duty so that the State does not place the appellant in a situation where they must take on the cost and stress of pursuing litigation to vindicate this position.
5. The respondent argues that in administering tax legislation and issuing an assessment, he does not have the discretion to disregard High Court authority. Moreover, as the High Court has ruled s 90 invalid, the respondent cannot apply the provision to grant the appellant an exemption as it is a nullity. The respondent contends that the Tribunal was correct to rely on Mustac v Medical Board of Western Australia [2007] WASCA 128 to the effect that the Tribunal is bound to follow the law.

1. Section 90 of the Family Law Act was included in the original proclaimed version of that Act. The provision was amended several times in the years immediately following the commencement of the Act.
2. Relevantly, the version of s 90 considered in Gazzo was in the following terms:

"A maintenance agreement, or a deed or other instrument executed by a person for the purposes of such an agreement or for the purposes of, or in accordance with an order under, this Part, is not subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only to or in relation to a Territory."

1. The High Court's judgment in Gazzo ruling s 90 invalid was delivered on 24 December 1981.
2. Section 90 was later amended by the Family Law Amendment Act 1983 (Cth), which was assented to on 28 October 1983. The section was amended to provide:

90 Certain instruments not liable to duty

(1) The following agreements, deeds and other instruments are not subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only to or in relation to a Territory:

(a) a deed or other instrument executed by a person for the purposes of, or in accordance with, an order made under this Part;

(b) a relevant maintenance agreement that confers a benefit upon a party to, or a child of, the marriage to which the maintenance agreement relates, to the extent that the maintenance agreement confers that benefit;

(c) a deed or other instrument executed by a person for the purposes of, or in accordance with, a relevant maintenance agreement, being a deed or other instrument that confers a benefit upon a party to, or a child of, the marriage to which the maintenance agreement relates, to the extent that the deed or other instrument confers that benefit.

...

1. The Explanatory Memorandum to the Family Law Amendment Bill 1983 for the Senate made reference to the impetus for the amendment of s 90 (emphasis added):

"Clause 46 - Instruments Not Liable to Duty

This clause revises section 90, which provides an exemption from State stamp duties for documents executed under the Act, following a 1981 High Court decision concerning the constitutional validity of the provision.

Under revised section 90, the following instruments will be exempt from State, Territory or Commonwealth duties or charges -

• a deed or instrument executed pursuant to an order under Part VIII;

• a maintenance agreement registered or approved under the Act or regulations made either in connection with or contemplation of the dissolution or annulment of the marriage to which the agreement relates, that confers a benefit upon a party to, or a child or, the marriage to which the agreement relates, to the extent that the agreement confers that benefit; and

• a deed or instrument executed pursuant to such a maintenance agreement, that confers a benefit upon a party to, or a child of, the marriage to which the agreement relates, to the extent that the deed or instrument confers that benefit."

1. The Explanatory Memorandum circulated in the House of Representatives provided the same overview of the amendments but did not include the bolded part referencing the decision in Gazzo.
2. Section 90 remains in the same terms today. Both parties accepted that there was no material difference between the earlier version of s 90 and that part of s 90 relied upon today.
3. Critically, the part of the section we are concerned with has not changed, even though its context has changed due to amendments that were made to s 90. We do not speculate on why this aspect was not changed, but note that the aspect that remains the same, and is of relevance to us today, was the part of s 90 that the then Chief Justice focussed on and held to be invalid.
4. Doubts about whether Gazzo was correctly decided have been expressed in subsequent High Court cases. Those include Fisher v Fisher [1986] HCA 61; (1986) 161 CLR 438 at 453; [1986] HCA 61, in which Mason and Deane JJ, commenting on the extent of the incidental power, said (footnote omitted):

"... while the actual decision in Gazzo v. Comptroller of Stamps (Vict.) must be respected unless and until it is overruled, we consider that the authority of that case should be confined to its particular facts for the reason that we regard the reasoning underlying the decision as fundamentally unsound."

1. Relatively recently, in Spence v Queensland (2019) 268 CLR 355; [2019] HCA 15, the majority (Kiefel CJ, Bell, Gageler and Keane JJ) acknowledged the debate about Gazzo and referred to Gibbs CJ's comments about the incidental power, stating that "[a]lthough the correctness of the decision in Gazzo has been questioned, there is no reason to doubt the veracity of those observations" (at [69]).

1. Ultimately we have not found it necessary to consider the criticisms or comments concerning Gazzo: it has not been overruled. This is a proposition that the appellant accepted. Further, we reject the proposition advanced by the appellant that we are somehow relieved from following Gazzo because, today, it would be overturned and we are empowered, standing in the shoes of the Chief Commissioner, to take a practical and pragmatic approach and hold that the assessment should be revoked or determined to be nil. This submission is founded on the proposition, at heart, that the Chief Commissioner - and, it follows, the Tribunal - with general administration of the TA Act may simply choose to assess at nil (or not assess) because ultimately, when this matter reaches the High Court of Australia, they will be vindicated, as Gazzo will be overturned and s 90 will operate to exempt the transfers from duty.
2. For the reasons set out above, an assessment is not the product of the exercise of discretion, even if in arriving at the ultimate amount of liability some discretion must be exercised (such as to remit interest): Bellinz; Ryan; SPIC.
3. Here, the relevant operative part of s 90 is indistinguishable today from the provision as it stood when Gazzo was decided. No error on the questions the subject of this appeal is shown in the first instance decision.

(1) To the extent necessary, leave to appeal is granted.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.