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Request to issue a summons under s 74 of the Administrative Review Tribunal Act - request for directions under s 79 of the Administrative Review Tribunal Act - respondent requests a summons so as to seek access to the applicant's premises on the basis that the definition of produce includes permit access to - s 74 and s 79 do not give power to the Tribunal to permit the respondent to access the private premises of the applicant - applications refused

Administrative Review Tribunal Act 2024 (Cth)

Taxation Administration Act 1953 (Cth)

1. The respondent has requested the Tribunal under section 74 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to issue a summons to the chief executive officer of the applicant requiring the respondent's representatives to be permitted access to the premises of the applicant for the purpose of viewing certain facilities thereon. In the alternative, the respondent requests directions to a similar effect under s 79 of the ART Act.
2. This is an unusual application because section 74 of the ART Act provides a discretionary power to the Tribunal to summon a person to give evidence or produce documents. Section 74(1)(b) provides relevantly that if the tribunal has reasonable grounds to believe that a person has information, or a document or thing, relevant to a proceeding in the Tribunal, the Tribunal may summon the person to produce any document or thing specified in the summons. The definition section in s 4 of the ART Act provides that "produce includes permit access to". The respondent relies on this definition to request access to the applicant's premises.
3. In my view s 74 of the ART Act does not give power to the Tribunal to permit the respondent to access the private premises of the applicant. The purpose of the summons is to allow a party to obtain, or have access to, evidence either through the production of a document or thing or by requiring a person to appear before the Tribunal to give evidence. The respondent's request to be permitted access to the premises does not fall within the scope of the power to issue a summons to produce any document or thing specified in the summons.
4. Section 4 of the ART Act provides that "produce includes permit access to" but it does not change the fundamental meaning of produce which is directed towards the production of evidence in the form of a document or thing. The s 4 definition of 'produce' facilitates a party having access to the evidence which is the subject of the summons request. The evidence is not limited to a document; it may be a thing specified in the summons. In this case it is not a document, but the respondent does not specify in the summons what is the evidence to which access is sought. It is not clear what evidence is the subject of the summons. Arranging for the respondent to have access to the premises of the applicant prior to the hearing is not evidence. I accept that there is a potential for evidence to be generated as a result of the respondent being given access. Such evidence on the respondent's submission would include photos taken or oral evidence at the hearing of what the person saw. However, this is not the evidence to which access is being sought.
5. The respondent is seeking access to the "modified version of the facility" and the "repurposed container". However, the respondent is not requesting a summons for the production of these things. These things are not evidence that can be produced. They are not a "thing" for the purposes of s 74(1)(b) of the ART Act.
6. I conclude that the Tribunal does not have power under s 74(1)(b) of the ART Act to issue a summons on the terms requested.
7. With respect to the alternative application under s 79(1) of the ART Act, I note that it is confined to giving directions in relation to procedure. The examples of what the Tribunal may order as set out in s 79(2) relate to matters of procedure, as opposed to substance. Compelling a party to give access to its premises to another party does not fall within the confines of "the procedure to be followed for a proceeding in the Tribunal". Any power to overrule or in some way limit private property rights would need to be clearly articulated in the legislation. The power to do so is clearly not contemplated by the procedural powers in s 79(1) of the ART Act.
8. It follows that the Tribunal does not have the power to grant the respondent's request either under s 74 or s 79 of the ART Act.
9. Even if I were wrong in terms of the statutory interpretation of s 74 and s 79 of the ART Act, I would not exercise my discretion to issue the summons, or to make the directions sought, in circumstances where there is a more appropriate procedure available to the respondent to achieve its objective of accessing the premises for the purposes of viewing the relevant facilities. In this regard, having received the request to issue a summons, the Tribunal wrote to the parties suggesting that a view of the applicant's premises may be appropriate. The applicant responded by advising that it is content to adopt the Tribunal's proposal and facilitate a view of its premises in Dandenong South to be conducted by the Tribunal. Given that the applicant has agreed to a view, I would not exercise discretion to issue a summons.
10. There are other factors that militate against exercising a discretion in favour of the respondent. The issue that is sought to be tested by accessing the premises is not directly relevant to the primary issue of whether a certain facility existed in 2015 and 2016. Rather it goes to the issue of whether that facility still exists in a modified form. Further, the applicant is making available the witnesses who can be cross examined on that issue. It is also relevant that the applicant bears the onus under s 14ZZK of the Taxation Administration Act 1953 and it is a matter for the applicant if (as contended by the respondent) the best and available evidence is not put forward. Further, the respondent has had access to and has used its coercive powers to compel production of documents and to compel persons to be interviewed in order to create a positive case to be put at the tribunal. The timeframe for the provision of evidence has now expired and the applicant would need to vary previous directions in order to file further evidence.
11. I consider that the expense associated with a view at Dandenong South (about 45 minutes away) is consistent with the objects of the Tribunal in s 9(b) of the ART Act. However, an additional view at the Woodside premises (about three hours away) would involve much greater time and expense and would be of questionable benefit given that it is only the container in a modified form that is said to exist there.
12. At the conclusion of the hearing the Tribunal provided oral reasons for refusing the applications. For those reasons and those set out above, the Tribunal refuses the applications of the respondent under s 74 and 79 of the ART Act.

1. I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.

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