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TRIBUNAL: Senior Member M Hyman

DATE: 21 September 2026

ORDER The Tribunal orders that:

1. The decision of the Commissioner for ACT Revenue that the applicant was liable for conveyance duty on the purchase of his home is confirmed.

……………………………….. Senior Member M Hyman REASONS FOR DECISION Introduction

1. Mr Samuel Craven, the applicant in these proceedings, bought and moved into a home in Canberra. He sought to take advantage of the ACT Government’s Home Buyer Concession Scheme (HBCS), which would have exempted him from paying conveyance duty (commonly known as “stamp duty”) provided he met the criteria set for the scheme. Among those criteria is a residence period, which requires that the person seeking the benefit of the scheme occupy the premises for a continuous period of at least one year. Shortly after taking up residence the applicant lost his employment and not being able to find comparable employment in the ACT, took up a position interstate. The Commissioner for ACT Revenue (the Commissioner, or the respondent) may determine a shorter period for residence under the scheme where a person is unable to meet the residence requirement owing to an unforeseen circumstance. The applicant sought a decision to that effect, but the Commissioner declined to exercise the discretion; the applicant’s conveyance duty was assessed at $19,716. The applicant objected, and the Commissioner disallowed the objection. Mr Craven applied to this tribunal for review of the respondent’s disallowance decision.

The hearing

2. The matter came before the Tribunal on 29 June 2026. The applicant was self-represented; the respondent was represented by Mr B Buckland of Counsel. The applicant filed a bundle of papers, including a witness statement dated 6 June 2026, some supporting evidence, including the papers relating to the purchase of an apartment, a statutory declaration, and a submission. The respondent filed the T-documents (the respondent’s records relating to the decision under review) and a submission dated 23 June 2026.

3. The respondent opposed Mr Craven’s application to have the disallowance decision set aside; the primary ground for that opposition was the respondent’s contention that the Tribunal lacked jurisdiction to hear the application. That question needs to be resolved before the Tribunal can consider the applicant’s case: if the respondent’s argument is accepted, the Tribunal cannot consider the matter; only if the respondent’s jurisdictional contention is rejected can the Tribunal consider whether or not the Commissioner’s disallowance should be confirmed, varied, or set aside. In order to consider the respondent’s position on the Tribunal’s jurisdiction, the facts of the matter and the applicable statutory framework need to be set out.

The statutory framework

4. The Tax Administration Act 1999 (TAA) is the central legislative instrument for tax law in the Territory. The TAA lists the legislation that makes up ACT tax law, 1 including the Duties Act 1999 (Duties Act). It confers power on the Commissioner to make assessments and reassessments, and to take actions related 2 to assessments. The Commissioner may, for tax purposes, require a taxpayer to provide information or produce documents. A taxpayer may object to an 3 4 assessment, and the burden of sustaining an objection lies on the taxpayer. The Commissioner must make a decision on an objection, either allowing it in whole 5 or in part, or disallowing it. Some decisions are reviewable by the Commissioner, some are internally reviewable, and some are reviewable by the ACAT (the last 6 termed “reviewable decisions”). Decisions reviewable by ACAT include 7 assessments, and also decisions of other specified kinds. Having made a reviewable decision, the Commissioner must give a reviewable decision notice to 8 9 the affected taxpayer, who may then apply to this Tribunal for review. 10

5. The Duties Act imposes obligations to make payments of duty to the Territory. A transfer of dutiable property attracts conveyance duty, and dutiable property

1 TAA, s 4 2 TAA, Part 3 3 TAA, s 100 4 TAA s 101(3); this requirement is strictly observed – see for example Li v Commissioner for ACT Revenue [2024] ACAT 24 5 TAA, s 104 6 TAA, ss 107, 107A 7 TAA, s 107A 8 TAA, s 198 9 TAA, s 108A 10 Duties Act, s 5 11 includes land in the ACT and a Crown Lease. The dutiable value on which the 12 duty is levied is the consideration for the transfer.

6. Under section 139 of the TAA, the Minister is given the power to determine the rate of tax or duty payable under a tax law. That power allows the Minister to determine the rate of conveyance duty, and it is also the power applied to establish the HBCS, which is given effect at present through the Taxation Administration (Amounts Payable – Home Buyer Concession Scheme) Determination 2025 (No 2) (Disallowable instrument D12025-146) (the instrument). A scheme with the same title has been in operation for some years, but the basis on which the concession is offered, and the structure of the concession, has varied from one year to the next. In the present circumstances, the instrument allows people who are eligible, and who engage in an eligible transaction, to be exempt from the duty, or to be liable for duty at a lower rate.

7. The central concepts for attracting the concession are entry into an “eligible transaction” by an “eligible home buyer”. The requirements for a transaction to be eligible include: that the home buyer or buyers have not had an existing interest in real property for the past five years (an interest is allowed in specified circumstances); that the earnings of the buyers fall below a specified threshold; 13 and that at least one buyer will meet the residence requirement. An eligible home buyer may apply for the concession on lodgement of the property transfer 14 with the Registrar-General. The residence requirement is set out in Schedule 3 of the instrument. The relevant criterion is that an eligible home buyer occupies the home continuously for a year after the resident start time, which is the date 15 that the eligible transaction is complete.

8. Clause (3) of Schedule 3 reads as follows: (3) The Commissioner may determine a shorter residence period (including no period), if—

11 Duties Act, ss 7(1), 10(1) 12 Duties Act, ss 18, 20(1) 13 Instrument, s 6 14 Instrument, s 8 15 Instrument, Schedule 3, clauses (1) and (2) (a) the shorter period is requested, in writing, for an eligible home buyer not later than 18 months after the residence start date; and (b) the Commissioner is satisfied that the transferee is unable to occupy the eligible property for a continuous period of 1 year because of an unforeseen circumstance. Example—unforeseen circumstance A health-related issue.

9. The Tribunal’s jurisdiction arises under the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). The Tribunal has jurisdiction to review certain government decisions. An application may be made to the Tribunal where 16 an authorising law provides for the application. The Tribunal’s decision-making powers where someone applies to the Tribunal under an authorising law for review of a reviewable decision are set out in section 68, as follows: 68 Review of decisions (1) This section applies if the tribunal reviews a decision by an entity. (2) The tribunal may exercise any function given by an Act to the entity for making the decision. Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104). (3) The tribunal must, by order— (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and— (i) make a substitute decision; or (ii) remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal. The relevant facts

10. The facts of the matter are not in dispute, at least in their outline. Mr Craven was in probationary employment in late 2025. He bought an apartment in October 17 2025, settlement occurring on 24 November 2025. The purchase was registered 18 with the Registrar-General on 10 December 2025. Mr Craven applied to the

16 ACAT Act, s 9 17 Applicant’s witness statement, at [2] 18 T-1, page 8 Commissioner for the duty concession on the home purchase, and his duty was 19 assessed as nil. But his employment was brought to an end on 5 December 2025, a few days before his probationary period was to finish. He was employed in a specialised area of work and could not find employment in the ACT. He applied 20 for and obtained employment in his specialised area interstate.

11. Mr Craven therefore found himself unable to remain in the ACT and consequently unable to satisfy the residence requirement by living in the apartment for one year. He put the apartment on the market in February 2026; exchange of contracts 21 occurred on 27 February and settlement was on 25 March 2026. On 3 February 2026 Mr Craven requested that the Commissioner exercise the discretion in Schedule 3, clause (3) of the instrument to allow him to retain the concession by 22 granting him a shorter residence requirement period. On 4 March 2026 the Commissioner rejected the request and issued a reassessment with a duty liability of $19,716. On the same day, Mr Craven lodged an objection to the 23 reassessment.

12. On 13 April 2026 the respondent issued a determination of the objection, sending him a reviewable decision and reasons statement affirming the Commissioner’s reassessment. On 14 April 2026 the applicant lodged an application for review of 24 the respondent’s decision.

Does the Tribunal have jurisdiction to review the Commissioner’s decision?

13. The respondent contended, in written submissions and in oral submissions at the hearing, that a determination made under clause (3) of Schedule 3 is not reviewable. Such a decision is not included in those provisions of the TAA that allow external review of the Commissioner’s decisions: section 100 identifies reviewable decisions as either assessments, or as decisions listed in Schedule 1 or Schedule 2 to the Act (it is not contested that an assessment includes a

19 T-1, page 8 20 Applicant’s witness statement 21 T-1, page 9 22 T-1, page 8 23 T-1, page 9 24 T-1, page 6 25 reassessment). The determination relating to the residence requirement in Schedule 3 of the instrument, provided for in clause (3), does not fall under either heading. It is not listed in Schedule 1 or 2, and although the reassessment itself is reviewable, the review of the reassessment does not extend to the determination rejecting the shorter residence requirement, as that is a discrete decision. The “functions” of the Commissioner, conferred on the Tribunal by section 68(2) of the ACAT Act, extend only to those functions given to the Commissioner “for making the decision”. The determination of the applicant’s request for a shorter residence period was not the exercise of a function for the making of the reassessment decision; it was an anterior and separate decision.

14. In response the applicant, who is not legally trained, pointed out that the reassessment itself is reviewable, and it was the determination of the shorter residence requirement request that decided the outcome of the reassessment. It follows that consideration of the residence requirement was part of the reassessment, and is therefore reviewable. He also noted that the Commissioner treated it as reviewable, advising him that he had a right to seek review from this 26 Tribunal.

15. Many of the arguments advanced by the respondent in support of the jurisdictional contention can be accepted without question. It is indeed the case that the Tribunal is a creature of statute; its powers are limited to those conferred by statute for the purpose of decision-making in each individual matter that comes before it. The Tribunal does not have powers at large. It acquires jurisdiction from an application made under the relevant enactment. The respondent cited Qantas 27 Airways Ltd and Deputy Commissioner of Taxation (WA) and Hongkong Bank 28 of Australia Ltd v Australian Securities Commission in support of the argument, and those cases are in my view sound authority for the proposition.

25 See TAA, Dictionary 26 Transcript of proceedings on 29 June 2026, page 4, lines 32-38 27 [1979] AATA 40 28 [1992] FCA 273

16. The respondent is also correct in relying on Dennis and Secretary, Department of 29 Transport in support of the point that a tribunal’s jurisdiction is strictly construed. It is only when a Tribunal is certain of its jurisdiction that it can be sure that it has the powers an applicant is seeking to have exercised.

17. There is no doubt that the Commissioner’s reassessment decision is reviewable; it falls squarely into section 107A(1)(a). The critical question is whether the determination of the applicant’s request for a shorter period of residence under clause (3) of Schedule 3 of the instrument falls within the scope of that review. The respondent says that it does not. Whether that is so or not depends on the construction of section 68(2) of the ACAT Act – whether the determination of requests under the clause is “a function” given by the TAA to the Commissioner for making “the decision” – the decision here being the reassessment.

18. There is a body of case law that explores this general point. The respondent cites 30 Civil Aviation Safety Authority v Coburn (Coburn), Fletcher v Commissioner 31 32 of Taxation (Fletcher) and Donald and ASIC (Donald). These cases arise in the context of the Commonwealth’s then tribunal, the Administrative Appeals 33 Tribunal (AAT); section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) gave the AAT decision-making powers closely similar to those given the ACAT by section 68 of the ACAT Act.

19. In Coburn, Branson J held that the AAT had made an error of law by undertaking a review, not of the reviewable decision itself, but of an anterior decision, made under a different regulatory provision. The “powers and discretions” (the equivalent of the ACAT’s “functions”) available to the AAT standing in the shoes of the decision-maker extend to those the decision-maker held in respect of the decision under review, but not to those held in respect of the anterior, unreviewable, decision. In Fletcher the Full Court of the Federal Court considered whether a power available to the Commissioner of Taxation but not

29 [1979] AATA 81 30 [1996] FCA 905 31 [1988] FCA 362 32 [2001] AATA 366 33 Now replaced by the Administrative Review Tribunal, established on a similar basis by the Administrative Review Tribunal Act 2024 called upon in the original decision, or put forward by the Commissioner at hearing, could be drawn on by the Tribunal in the review process. The Court decided that the Tribunal could do so, because that power had been available to the Commissioner in the assessment process, and was therefore among the powers available to the Tribunal standing in the Commissioner’s shoes (the decision was set aside nonetheless because the Tribunal did not seek evidence or submissions relating to the application of that power).

20. Donald is an AAT case in which many of the authorities on the question of the extent of tribunal powers in arriving at a decision are explored, including 34 35 Fletcher, Stevenson v Commissioner of Taxation, Comcare v Burton, 36 Secretary, Department of Social Security and Riley and Control Investments Pty 37 Ltd and Australian Broadcasting Tribunal (No 2) (Control Investments). In Donald, the AAT summed up the available guidance as follows: Subject to any statutory qualifications to the contrary, the principles adopted in each case require that the Tribunal first identify the decision under review. It must then satisfy itself that it has jurisdiction to review that decision. It will do so by having regard to the scheme of the legislation and remembering that no provision of the AAT Act gives it jurisdiction to review a decision. Having done that, the Tribunal must then identify the powers and discretions that rested in the decision-maker when that decision was made. They may be found in the provision under which the decision was made or they may be found in other provisions of the statutory framework of which that particular provision is a part. Those are the powers and discretions that then rest in the Tribunal by virtue of s. 43(1) of the AAT Act. There is no requirement that those powers and discretions must lead to a decision that would itself be reviewable by the Tribunal had it been made by the decision-maker in the first instance and an application for review lodged in the Tribunal.

21. In Control Investments the Tribunal addressed a similar question as follows: the provision “For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision...” is not concerned to confer upon the Tribunal authority to limit its function but rather to confer upon it an amplitude of powers so that the Tribunal may exercise, if it is convenient and useful to do so, not only the decision-making power upon

34 [1991] FCA 224 35 [1998] FCA 1144 36 [1987] FCA 405 37 [1981] AATA 11 which the decision-maker relied, but all relevant powers and discretions which were conferred by the enactment upon the decision-maker. The provision extends the authority of the Tribunal so that it may more adequately exercise its function of reviewing on the merits the subject decision.

22. Turning then to the present matter, the decision under review is the reassessment by the Commissioner. The functions that the Commissioner was able to exercise in arriving at the reassessment are those set out in the instrument and others arising under tax law in arriving at a reassessment.

23. The applicant put forward two arguments why the determination of the residence period was within the scope of the review. One argument was that the Commissioner had notified him that the decision was reviewable, and should be bound by that notification. I give no weight to that argument. Jurisdiction cannot be created in the Tribunal by an administrative error (if that is what has occurred); the Tribunal determines its own jurisdiction, and a judgment by another party that it has jurisdiction does not of itself create that jurisdiction – see Schneller and 38 Inspector-General in Bankruptcy. And no estoppel operates to prevent the respondent from asserting that the Tribunal lacks jurisdiction. But the applicant’s other argument, that the determination of his residence requirement was part of the reassessment, and therefore logically part of the Tribunal’s review, is a reasonable point.

24. In assessing an application for the HBCS, the Commissioner will need to answer a series of questions, addressing the various criteria for qualification for the concession. The following questions exemplify this process (in each case the provision of the instrument setting the relevant criterion is given in brackets): whether the home buyers acquired both a legal and an equitable interest in the property (section 6(1)(a)); whether the home buyers have had an interest in land in the past five years (6(1)(b)); whether the income of the buyers is below the threshold (6(1)(c)); whether at least one of the buyers will meet the residence requirement (6(1)(d)); and whether the buyers are of the required age (6(1)(e)).

38 [2004] AATA 906, at [4]-[9]

25. For some of these criteria, where the criterion is not met there is a further step than can be taken to allow a home buyer to qualify. If the home buyers have had an interest in land within the past five years, they may still qualify if the interest is determined to be an “allowed interest”; Schedule 1 provides criteria for deciding whether an interest is allowed, such as where a home buyer holds or held an interest but has been compelled to relinquish it, or the interest is affected by family violence, or the interest is held by a partner or spouse and the relationship has broken down. Similarly, in Schedule 2, the income threshold is set for the combined income of spouses or partners, but one income is excluded from the assessment if there is family violence or if the marriage or partnership has ended. And in Schedule 3, the residence period may be shortened if a home buyer is unable to live in the home for a year because of an unforeseen circumstance; or it may start at a later date (a date later than the date of settlement on the property) if an unforeseen circumstance prevents the home buyer from taking up residence.

26. It is readily apparent that in determining whether someone is eligible for the HBCS, the Commissioner is called on to make a number of determinations of the facts of the particular application, and some of these will be matters, like the residence requirement, in which there may be exemptions or special considerations on some occasions. These matters are all spelt out in the instrument, and they are all matters that are determined in the course of coming to a conclusion about the applicant’s eligibility or, as in the present matter, in the course of arriving at a reassessment. When the Tribunal makes those same determinations, standing in the shoes of the Commissioner, it is exercising the functions conferred on the Commissioner and resting with the Tribunal for the purposes of the review.

27. The respondent wishes to draw a distinction between “functions” – available to the Tribunal under section 68 of the ACAT Act – and “decisions”, contending that the determination of a request for a shorter residence period is a decision, but not the exercise of a function. I can see no justification in the statute for making this distinction. In the case of the AAT, the conferral of the “powers and discretions” of the original decision-maker on the Tribunal seems even less likely to exclude decision-making from the Tribunal, on review, the phrase “powers and discretions” having a distinctly decisive flavour. In the case of ACAT, it might be argued that “functions” is a broader term; but I can see no reason to conclude that the functions so conferred exclude the function of making a determination of a fact or of taking a decision.

28. It is very common under any statute for a statutory decision-making process to require the determination of a succession of issues on the way to reaching the final decision. That is exactly what happens under the instrument in the present context. The respondent points out that the taxpayer must make a separate request for the shortening of the residence requirement, and suggests that this sets the decision apart as a separate and distinct decision rather than the exercise of a function, noting that the Commissioner’s consideration of an application would not engage clause (3) of Schedule 3 under normal circumstances. That may be so, but the exemptions for both the shorter residence requirement and the later start date (clauses (3) and (4) of Schedule 3) are included in the instrument to recognise the intervention of an unforeseen circumstance; the request to the Commissioner is there to allow that unforeseen circumstance – which is likely to arise after the taxpayer’s eligibility has already been determined – to be taken into account. That does not convert the determination of the two matters from the exercise of a function into some separate decision of the kind contended for by the respondent. And the individual determinations along the pathway to the decision that a person is eligible or not under the HBCS are not themselves reviewable; but as the last sentence of the passage cited above from Donald notes, that is of no consequence – jurisdiction arises from the reviewable decision at the end of the pathway.

29. I have jurisdiction to review the Commissioner’s reassessment, and in doing so, to examine whether Mr Craven’s residence period should be shortened.

Should the discretion to shorten the applicant’s residence period be exercised?

30. Mr Craven is employed in a rather specialised area – in bitumen surfacing. At the time he entered into the contract for his home, he was in probationary employment. His probationary period was to end on 10 December 2025. He says that the feedback he had received on his employment was all very positive, and that it was therefore very surprising and unexpected when, a few days before his probationary period was to end, he was advised that his employment was terminated. Mr Craven said he was unable to find employment in the ACT because his work is so specialised. Being unable to support himself and pay a mortgage while unemployed, he was forced to take up an offer from interstate. Mr Craven says that his loss of employment was indeed an unforeseen circumstance, and the Commissioner’s discretion under Schedule 3, clause (3) of the instrument should be exercised in his favour.

31. The Commissioner argues that the loss of employment was always a possible eventuality during the probationary period, and that a reasonable person in the applicant’s position would have been aware of this and taken it into account in deciding the timing of purchase of real estate. He would also have had some sense that if his employment were terminated finding replacement work might not have been straightforward. Accordingly, he should not receive the benefit of the discretion in Schedule 3, clause (3) of the instrument.

32. The requirement that the cause of a taxpayer’s need for a shorter residence period is an “unforeseen circumstance” might give the impression that the taxpayer’s not having foreseen the circumstance is all that is required. But in a legal context the failure to have foreseen the circumstance must be what might be expected of a reasonable person. It is not at all clear that Mr Craven meets that test. He has filed a bundle of corroborative evidence, but none of it goes to critical issues such as the positive endorsement of his work performance that he said he received. There is a vast difference between a formal evaluation yielding a written assessment containing glowing praise, on the one hand, and a lukewarm endorsement or a commented “keep up the good work” in an informal context, on the other. It seems to me plain that the probationary period and the specialised nature of Mr Craven’s work together increased the risk of being excluded from the HBCS if he were to buy an apartment, and a reasonable person would have thought twice about the timing of such a purchase. I do not think the evidence allows me to conclude that a reasonable person in Mr Craven’s position would have been unable to foresee the possibility of his employment coming to an end before the probationary period was over, and the consequences that might have flowed from that.

33. There is a further consideration to take into account. The Commissioner has issued a circular on “principal place of residence” which deals among other things with the “unforeseen circumstance” issue. The circular, Revenue Circular GEN011.2, makes the following comments on the nature of an “unforeseen circumstance” that might warrant the exercise of the discretion in the instrument (footnotes omitted): 29. Ordinarily, an exemption or extension requires the applicant to prove that they cannot reside in the property primarily because of an unforeseen circumstance. The Commissioner will determine whether the circumstances put forth are unforeseen. Common scenarios involving circumstances that would not allow an individual to reside in the property include: • Events that make the property uninhabitable, such as fire or flood. • People who have lost the ability to live independently (that is, hospital requirements, requirements for specialist disability accommodation)—they must have been able to live independently at the completion date of the transaction. • An immediate family member (who resided in the property) has a newly diagnosed health-related issue requiring them to reside somewhere other than in the property —for example, specialist long-term medical treatments only available outside of the ACT Region. • Involuntary job transfers requiring residence outside of the ACT Region. • Divorce or separation from another individual. • Serious neighbourhood dispute—evidence would be requested. 30. The ACT Revenue Office would not consider unforeseen circumstances leading an applicant to be unable to reside in the property to include scenarios, such as: • An applicant sought, applied, or expressed an interest in an employment position that involved travel, postings or transfers and was subsequently offered a position in a new location. • Loss of employment, when alternate local employment was found within three months. • The property is not suitable for the needs of the person (for example, due to property size and/or family growth). • Financial difficulties incurred due to the cost of purchasing and retaining the property (for example, higher mortgage repayments due to rising interest rates). • Off the plan purchases, where minor variations to the plan have been accepted.

34. The phrase “unforeseen circumstance” is broad and general; the circular provides guidance on how ACT Revenue might interpret it in practice. It is similar to the guidance issued by the Australian Taxation Office on the operation of the tax legislation administered by the Commonwealth. The circular, in my view, constitutes policy on the operation of the “unforeseen consequence” phrase in the instrument (as well as on other issues not presently relevant). It is policy because it is made publicly available and is officially endorsed by ACT Revenue as guidance on which taxpayers can rely.

35. The case law on the significance of policy for the purposes of administrative review once again derives from the early years of operation of the AAT. The critical decision is that of Brennan J in Drake and Minister for Immigration and 39 Ethnic Affairs (Drake (No 2)), containing a long analysis on the role of policy in tribunal decision-making. For present purposes, the following extract illustrates the point: There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process. Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute … In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice: When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to 39 [1979] AATA 179 guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application …

36. The matter under consideration in Drake (No 2) related to a Ministerial policy on deportation, and the analysis accordingly refers to Commonwealth preoccupations and to “the Minister”. In the taxation context, governments in Australia, both Commonwealth and in the ACT (and no doubt elsewhere), have established Commissioners of Taxation at arms-length to conduct revenue-raising functions free from political interference. In my view the published guidance on the operation of those revenue-raising functions operates as formal policy in the same way as the Ministerial policy that was the focus of the analysis by Brennan J.

37. The provisos attached to such policies in Drake (No 2) are, I think, met by the extract cited earlier. The matters to be considered are relevant to the issue, and no relevant matter appears to me to have been excluded. The elements of the policy, and the policy as a whole (to the extent it is related to the “unforeseen circumstance” question) is closely focused on the purpose of the relevant provision of the statute.

38. If Mr Craven’s circumstances are tested against the policy, it appears that they fall in part within the first, second and fourth dot points listed as exclusions from the ambit of an “unforeseen circumstance”. Mr Craven applied for and took up employment outside the ACT; he did so when less than three months had elapsed following the loss of employment on 5 December 2025; and it was financial difficulties that he said prompted him to accept interstate employment. If I test his circumstances against the policy, none of the possible examples of unforeseen circumstance appears to apply to him, and three of the excluding circumstances apply. I am led to conclude that Mr Craven’s circumstances do not warrant the exercise of the discretion to shorten the residence period under the instrument.

39. The additional proviso identified in Drake (No 2) is that the circumstances of the case are taken into account – that the policy is not applied rigidly and without regard to the particular applicant. I have examined Mr Craven’s circumstances above and noted that his decision to enter the real estate market while in probationary employment, especially given his specialised employment, significantly heightened the risk that something would go amiss. If he had waited six weeks, he could have avoided that heightened risk. All this should have been apparent to him at the time.

40. In undertaking administrative review, it is accepted that the Tribunal seeks the correct or preferable decision in all the circumstances of the case. But in the taxation context there is a difference: section 101(3) of the TAA places the onus on the taxpayer to sustain an objection. This means that Mr Craven must show that the Commissioner’s imposition of duty in the present circumstances was 40 excessive or mistaken. He has not done so. Mr Craven’s position is arguable, but I am satisfied that he has not discharged the onus imposed on him by section 101(3) of the TAA. In light of that conclusion, I have confirmed the decision under review.

Order The Tribunal orders that:

1. The decision of the Commissioner for ACT Revenue that the applicant was liable for conveyance duty on the purchase of his home is confirmed.

……………………………….. Senior Member M Hyman

Date of hearing: 29 June 2026 Applicant: In person Counsel for the Respondent: Mr B Buckland Solicitors for the Respondent: ACT Government Solicitor

40 See Planet Red Pty Ltd v Commissioner of ACT Revenue [2017] ACAT 18, at [13]-[22]