Victorian Civil and Administrative Tribunal|2003-08-08

Firmstone v State Revenue Office [2003] VCAT 953 (8 August 2003)

General List - freedom of information - access to information - repeal of legislation - whether documents to which secrecy provisions of enactment apply - Freedom of Information Act 1982 s.38 - Business Franchise (Tobacco) Act 1974 s.5 - Business Franchise Fees (Safety Net) Act 1997 s.9(a)

I set aside the decision of the respondent not to grant access to the information and substitute it with a decision that access is to be granted at the expiration of 28 days from 8 August 2003.

1. Mr Adrian Firmstone, the applicant in these proceedings, is a Director of Firmstone & Feil (Firmstones), a firm of consultants who are concerned with indirect tax matters, including State tobacco licence fees.

2. Firmstones represent approximately 3000 entities that were the retailers of tobacco products sometime in the period 1 July 1997 to 5 August 1997.

3. On 5 August 1997, the High Court held that the tobacco licensing regime in the New South Wales equivalent of the Victorian Business Franchise (Tobacco) Act 1974 (the BFT Act) was unconstitutional (Ha & Anor v State of New South Wales & Ors [1997] HCA 34; (1997) 189 CLR 465). Following that decision the Business Franchise Fees (Safety Net) Act 1997 amended the BFT Act to remove the requirement for tobacco wholesalers and retailers to be licensed or pay a licence fee.

4. Certain retailers of tobacco sued a manufacturer of tobacco for recovery of the tobacco licence fee included in the price of the tobacco sold by the manufacturer to the retailers in the period 1 July 1997 to 5 August 1997 and retained by the manufacturer and not remitted to the New South Wales government agency. These retailers were successful in recovering this money. Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68; (2001) 208 CLR 516.

5. Firmstones wishes to contact tobacco retailers to advise them of their potential entitlement to recover the tobacco licence fees included in the prices paid to their tobacco suppliers on the purchases during the period 1 July 1997 to 5 August 1997 and ask them whether they wish Firmstones to act for them in pursuing this potential entitlement on their behalf.

6. To date, 16 separate proceedings have been commenced in the Supreme Court of New South Wales against tobacco wholesalers and manufacturers to recover licence fees paid in circumstances analogous or identical to the circumstances in Roxborough. The plaintiffs in those proceedings are client retailers of Firmstones. The proceedings have been commenced on a representative basis. At present there are probably thousands of retailers who are not known to Firmstones but who are represented in these proceedings.

7. To assist Firmstones identify the Victorian retailers involved, Firmstones has placed advertisements and continues to place advertisements in the press. To further assist Firmstones, requests have been made to the Victorian State Revenue Office (the SRO) for access to documents of the SRO pursuant to the provisions of the Freedom of Information Act 1982 (the FOI Act).

8. The requests seek access to registers, lists and other documents in the possession of the SRO that would reveal the holders of retail and wholesale tobacco licences between 1 July 1997 to 5 August 1997.

9. The SRO has denied access to the information that has been requested without identifying any of the documents to which the request relates pursuant to s.25A(5) of the FOI Act on the basis that it is apparent from the nature of the information as described in the request that all of the documents to which the request is expressed to relate, would be exempt documents.

10. Firmstones applied to this Tribunal for review of the decision of the SRO to deny access. The hearing came on before me on 1 August 2003. At the hearing, the only section the SRO relied on to support the claim for exemption from release was the exemption set out in s.38 of the FOI Act.

11. Section 38 of the FOI Act concerns documents to which secrecy provisions of enactments apply. It states :

"38. Documents to which secrecy provisions of enactments apply

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications."

12. The enactment in force that is relied on to attract the exemption under s.38 of the FOI Act, is s.5 of the BFT Act. It states :

(1) The Commissioner may communicate any information respecting the affairs of any person disclosed or obtained under the provisions of the Business Franchise Acts to

(a) an environmental health officer appointed under section 30A of the Health Act 1958;

(b) an officer of the Australian Customs Service;

(d) any special commission (within the meaning of the Evidence (Commissions) Act 1982) where -

(i) the Commissioner has received a request in writing for information from the special commission; and

(ii) the Treasurer has given written approval to the Commissioner of the communication of that information.

(2) Except as provided in sub-section (1) or in the Taxation (Reciprocal Powers) Act 1987 a person shall not -

(a) make a record of, divulge or communicate to any person or publish any information or any document or part of a document obtained by him in connexion with the administration or execution of the Business Franchise Acts; or

(b) be required to produce in court any document connected with the administration or execution of the Business Franchise Acts in his custody in the course of his employment or to divulge or communicate to any court any matter or thing coming under his notice in the course of his employment -

unless the production, divulgence, communication or publication is made -

(c) with the consent of the person from whom the information or document was obtained;

(d) in connexion with the administration or execution of the Business Franchise Acts or the regulations; or

(e) for the purpose of any legal proceedings arising out of the Business Franchise Acts or the regulations or of any report of any such proceedings.

13. Before turning to a consideration of whether the exemption claimed is made out, it is useful to set out a little more about the context in which the Registers were kept.

14. The Registers were kept pursuant to provisions of the BFT Act, which are now repealed. The provisions were repealed by the Business Franchise Fees (Safety Net) Act 1997. Before their repeal, s.5A stated :

(1) The Commissioner must cause to be kept a register of the holders of licences.

(2) The Register shall be available at the office of the Commissioner for inspection by members of the public during ordinary office hours.

(3) The Commissioner may publish the Register or an extract from the Register in any manner he or she sees fit.

(4) Without limiting the generality of sub-section (3), the Commissioner may publish the following information about a person whose licence has been suspended or revoked -

(b) any business or trading name under which the person is known to have carried on tobacco wholesaling or tobacco retailing;

(c) the address of any premises on which the person is known to have carried on tobacco wholesaling or tobacco retailing;

(d) the number of the licence that was suspended or revoked.

15. Mr Chris Dalton, who is a Senior Investigator in the Investigations Branch of the SRO and who, between 1995 and 1998, was employed as a Revenue Specialist in the Business Franchise Branch, prepared a witness statement tendered in evidence.

16. According to Mr Dalton, the wholesale and retail registers were kept electronically. In addition, there was a hard copy of part of the wholesale register, kept for internal purposes. Mr Dalton's understanding is that at the time, if a person had asked to inspect the registers, they would have been required to specify a particular licensee or area in which they were interested and the relevant parts of the register would have been made available for inspection.

17. Thus, the information in the registers was effectively accessible by a member of the public. Since the repeal, those provisions no longer exist. However, the documents remain in existence in electronic form apart from those parts of the wholesale register which are in hard copy, and the information sought can be printed out if necessary.

18. One of Firmstones' contentions was that the Registers were not exempt documents because during the relevant period, they were publicly available documents and the repeal of s.5A did not make the provisions of s.5 of the BFT Act extend to the Register. It was submitted that in interpreting s.5 today, it cannot be said that s.5 now applies to documents there were not covered by it previously, merely because of the repeal of other provisions of the Act. No authority was cited to me to support this assertion.

19. The respondent submitted that the BFT Act is to be construed as it was at the time the request for access was made, and therefore without regard to the by then repealed s.5A.

20. I agree with the respondent's submission. Section 14 of the Interpretation of Legislation Act 1984 sets out the principles applicable to the effect of repealed legislation. It reads :

"14. Provisions as to effect of repeal etc. of Acts

(b) expires, lapses or otherwise ceases to have effect -

any Act or provision of an Act that had been repealed by the first-mentioned Act or provision shall not, unless the contrary intention expressly appears, be construed as having been revived in consequence of the repeal, expiry, lapsing or ceasing to have effect of the first-mentioned Act or provision.

(b) expires, lapses or otherwise ceases to have effect -

the repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears -

(c) revive anything not in force or existing at the time at which the repeal, amendment, expiry, lapsing or ceasing to have effect becomes operative;

(d) affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision;

(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;

(f) affect any penalty, forfeiture or punishment incurred in respect of an offence committed against that Act or provision; or

(g) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as is mentioned in paragraphs (e) and (f) -

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if that Act or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect".

21. The High Court in Esber v Commonwealth of Australia [1992] HCA 20; [1992] 174 CLR 430 at 440, when dealing with a provision in the Commonwealth Acts Interpretation Act, similar to s.14 of the Interpretation of Legislation Act, stated :

"Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely 'a power to take advantage of an enactment'. Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Act Interpretation Act protects anything that may be truly described as a right, 'although the right might fairly be called inchoate or contingent'. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s.8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act".

22. A distinction is drawn between "a right" and merely "a power to take advantage of an enactment". The circumstances of this application fit the latter category. Whilst Firmstones could have taken advantage of the opportunity to inspect the Registers while s.5A was in operation, they did not. In contrast to the situation in Esber's case, Firmstones had made no application before repeal. Hence Firmstones had neither acquired nor accrued any right or privilege under the repealed enactment which would require me to consider whether they had any accrued rights. Nor was my attention drawn to any contrary intention in the Act that repealed s.5A which might support Firmstones' assertions.

23. The respondent claims the Registers are exempt from release under s.38 of the FOI Act set out earlier. The enactment which it contends satisfies s.38 is s.5(2) of the BFT Act, also set out earlier in these reasons.

24. The thrust of the submission of Mr O'Bryan, counsel for the SRO, were as follows :

* There can be little doubt that all the information the subject of these applications was obtained in connection with the administration or execution of the BFT Act within the meaning of s.5(2)(a), making the situation one where persons are prohibited from disclosing information of the kind sought within the meaning of s.38 of the FOI Act.

* Although the language used in s.5(2)(a) is not terribly specific compared with some other enactments, it is sufficiently specific to satisfy the first part of s.38 which says a document is exempt if there is in force an enactment "applying specifically to information of a kind contained in the document".

25. Mr O'Bryan submitted that at the end of the day, the consideration of whether the enactment had the necessary degree of specificity, had to be considered on a case by case basis. He conceded that this case is close to the borderline. Counsel drew my attention to a number of decisions of this Tribunal and its predecessor the Administrative Appeals Tribunal.

26. It is well accepted that to attract the s.38 exemption, the particular enactment must be expressed so as to relate specifically to the relevant information (see Federal Commissioner of Taxation v Swiss Aluminium Australia Ltd (No 2) and Others (1986) 66 ALR 159).

27. Section 5(2) of the BFT Act essentially prohibits all persons from disclosing information that is obtained in connection with the administration or execution of the BFT Act. It is expressed in general terms and does not refer with particularity to the information or the kind of information in question. The section says nothing about the intrinsic characteristics of the kind of information in question and does no more than prohibit the disclosure of information obtained by a person in connection with the administration or execution of the BFT Act (see Kavvadias v Commonwealth Ombudsman [1984] FCA 55; (1984) 1 FCR 80, Re Berryman and Department of Education (unreported), VCAT, Macnamara DP, 4 February 1999; Re Woodford and Ombudsman [2001] VCAT 1972; (2001) 18 VAR 102).

28. In those circumstances I am not satisfied that s.5(2) is an enactment that applies specifically to information contained in a document such as to attract the exemption claimed under s.38 and I find that the exemption claimed by the SRO is not made out.

29. I therefore set aside the decision of the SRO not to grant access to the information and substitute it with a decision that access is to be granted at the expiration of 28 days from 8 August 2003.

Information Act 1982

Franchise Fees (Safety Net) Act 1997

(Commissions) Act 1982

(Reciprocal Powers) Act 1987

Franchise (Tobacco) Act 1974

Legislation Act 1984

Firmstone v State Revenue Office [2003] VCAT 953

At a glance

Court

Decision date

Source

Judgment (69 paragraphs)

Firmstone v State Revenue Office [2003] VCAT 953 (8 August 2003)

Parties

Legislation Cited (6)

Cases Cited (4)