Jessup J
1 I have had the benefit of reading the reasons of Robertson J in draft. I agree that the orders proposed by his Honour should be made, but I would take a somewhat different approach to the determination of the issues which arise for consideration from that taken by his Honour. In what I have written below, I assume an acquaintance with his Honour's reasons.
2 In the Administrative Appeals Tribunal ("the Tribunal"), the appellant contended that its application for a review of the Commissioner of Taxation's ("the Commissioner") (deemed) disallowance of its objection to the Commissioner's failure to give the ruling which it sought on 30 December 2010 had to be decided by reference to the provisions of the Income Tax Assessment Act 1997 (Cth) ("the 1997 Act") before the amendments effected by the Tax Laws Amendment (2012 Measures No 2) Act 2012 (Cth) ("the 2012 Act"). That contention became the subject of the preliminary question which the Tribunal answered in the negative. In this Court, the primary judge held that the Tribunal had not erred in law in giving that answer.
3 In support of its challenge to that holding, the appellant submitted that the case involved two questions: first, whether, when it applied for the ruling on 30 December 2010, or when it applied for a review of the Commissioner's disallowance of 21 December 2011, or at both such times, the appellant had an accrued right within the terms of s 7(2)(c) and (e) of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act"), and, secondly, if there were such a right, whether the application of s 7(2)(c) and (e) was subject to a contrary intention, within the meaning of s 2(2) of that Act, conveyed by the relevant terms of the 2012 Act.
4 Both at first instance and now on appeal, the "right" for which the appellant contended was a right to a ruling based on the taxing rules which were operative before 31 March 2011. The primary judge was prepared to assume that the appellant had an accrued right, within the terms of s 7(2)(c) of the Acts Interpretation Act, to a ruling based on the taxing rules operative before 31 March 2011. His Honour then moved to the question which arose under s 2(2) of the Acts Interpretation Act, namely, whether the application of s 7(2)(c) was "subject to a contrary intention". On appeal, the Commissioner put both questions in play, and the appellant accepted that it was obliged to deal with the first question, notwithstanding that an answer which was favourable to it had been assumed by the primary judge. In the circumstances, I take the view that we are not entitled to follow the course adopted by his Honour, but must decide the first question for ourselves.
5 The right upon which the appellant relied would arise in the following way. Under s 359-10(1) of Sch 1 ("the Schedule") to the Taxation Administration Act 1953 (Cth) ("the Administration Act"), a taxpayer may apply to the Commissioner for a "private ruling", that is to say, for a "written ruling on the way in which the Commissioner considers a relevant provision applies or would apply to you in relation to a specified scheme" (s 359-5(1) of the Schedule). In the present case, the "relevant provision" (s 357-55 of the Schedule) was s 716-405 of the 1997 Act. In its amended objection of 20 October 2011, the applicant sought a "conclusion" - and thereby, as I understand it, a ruling - that "the tax cost setting amounts attributable to the Contractual Rights are deductible over 10 years in accordance with section 716-405, commencing in the year ended on 30 June 2009".
6 The appellant's application for a ruling having been made, the Commissioner was obliged to comply with it and to make the ruling: s 359-35(1) of the Schedule. There was, however, no time specified within which the ruling had to be made. Rather, if the ruling had not been made within 60 days, the taxpayer was entitled to give the Commissioner a written notice under s 359-50(1) of the Schedule requiring him to make the ruling. In the present case, that provision was activated, the appellant's notice having been given on 19 August 2011. If the ruling had still not been given within a further 30 days, the taxpayer was entitled to object, in the manner set out in Pt IVC of the Administration Act, against the failure to make the ruling: s 359-50(3) of the Schedule. Again, in the present case, these provisions were activated, the appellant having lodged an objection on 29 September 2011 and a revised objection on 20 October 2011. Thenceforth, the matter proceeded under Pt IVC. The Commissioner did not make a private ruling within the period of 60 days for which s 14ZYB(1) of the Administration Act provides, and the objection was, therefore, taken to have been disallowed by the operation of subs (2) of that section. Finally, under s 14ZZ(a)(i) of the Administration Act, the appellant was entitled to apply, and on 15 February 2012 it did apply, to the Tribunal for review of the s 14ZYB disallowance.
7 Pursuant to the provisions referred to above, the appellant had, and exercised, certain rights: the right to apply for a private ruling under s 359-10(1) of the Schedule, the right to give a notice under s 359-50(1) of the Schedule, the right to object under s 359-50(3) of the Schedule, and the right to apply for review to the Tribunal under s 14ZZ(a)(i) of the Administration Act. These provisions founded the submission made on behalf of the appellant that it had a right to receive a ruling, a submission which, having regard to s 359-35(1) of the Schedule, could not seriously be disputed. Understood at this level, the appellant's case identified, and relied on, a right which arose under the Administration Act.
8 The appellant invoked the provisions of paras (c) and (e) of s 7(2) of the Acts Interpretation Act, which I set out below (together with those of para (b) which, for reasons which will appear presently, must now also be considered):
If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:
…
(b) affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or
…
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
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 the affected Act or part had not been repealed or amended.
Note: The Act that makes the repeal or amendment, or provides for the instrument to make the repeal or amendment, may be different from, or the same as, the affected Act or the Act containing the part repealed or amended.
Each of these provisions of s 7(2) operates with respect to "the affected Act or part", that is to say, the Act or part which has presumptively been repealed or amended.
9 Looking only at the plain words of s 7(2), the appellant's argument would seem to encounter an insuperable difficulty, which ought to have been recognised both in the Tribunal and before the primary judge. In the facts of the present case, the 2012 Act is the "Act" first mentioned in s 7(2), and the 1997 Act is the "Act" there second mentioned, that is, the "affected Act". The Administration Act was not amended in any respect which is relevant to the present appeal. But the "right" upon which the appellant relied was one which arose under the Administration Act. It did not arise under the 1997 Act. It may be that the content of the ruling applied for was given by a provision of the 1997 Act, but the right to the ruling did not arise under that Act. It did not arise under the Act which was amended.
10 When this difficulty was drawn to the attention of the appellant in correspondence from the Court after we had reserved judgment, it took the opportunity to file a written submission which dealt with the point. It is with that submission that the balance of these reasons is concerned.
11 The appellant first submitted that the rights upon which it relied were not confined to the right to receive a private ruling. They included the right, under its objection, to require the Commissioner to make a ruling in accordance with the draft which had been lodged with the objection, or to make "a different ruling". They included also the right to have the Commissioner's disallowance of the objection reviewed by the Tribunal. All this may be granted, but the rights relied on, to the extent that they arose at all, arose under the Administration Act.
12 The appellant also submitted that each of these rights was a right to have the ruling made, the objection considered and the disallowance reviewed "according to law". This too may be granted, but the conclusion does not, in the unelaborated terms in which it was expressed, take the matter any further: even rights so described would arise under the Administration Act, not the 1997 Act.
13 I consider next so much of the appellant's submissions as invoked the terms of paras (c) and (e) of s 7(2) of the Acts Interpretation Act. The availability of para (e) depends, of course, upon a finding that there was a right (etc) of the kind referred to in para (c), and it is convenient to address those submissions by reference to that paragraph.
14 It is said that the provisions of the 1997 Act "are expressly incorporated in" the Administration Act, reference being made in this respect to subss (2) and (3) of s 3AA of the latter. I would not accept that these provisions are to the effect submitted. They are both interpretation provisions only. They do not produce the result that the Administration Act is the same Act as the 1997 Act for the purposes of the application of s 7(2) of the Acts Interpretation Act.
15 The appellant next relied on para 7.23 of Pearce, DC and Geddes, RS, Statutory Interpretation in Australia, 7th ed, 2011, for the proposition that "courts look at the effect of a provision rather than its form to determine whether it amends an earlier statute", and that, "[i]f the court is satisfied that the intended effect of the later Act is to bring about an alteration in the operation of the earlier Act, the later Act will be regarded as an amending Act". Although not articulated in the appellant's written submission, I gather that the point being made here was that the Administration Act was, as a matter of substance if not form, amended by the 2012 Act because there was an alteration in the operation of it. I would not accept such a submission. Relevantly to the present issue, the "operation" of the Administration Act was, and remained, by way of enabling a taxpayer to obtain the view of the Commissioner about how certain laws (including the 1997 Act) applied to him or her. An amendment to one of those laws did not amend the Act that provided the machinery for such a view to be obtained, and for the consequences of the expression of such a view. No more so did it do that than an amendment to the 1997 Act, for example, would ipso facto also amend the provisions of the Administration Act that provide for appeals and reviews or, for that matter, the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") or the Federal Court of Australia Act 1976 (Cth).
16 It was next submitted on behalf of the appellant that it was an object of the Administration Act to confer entitlements on taxpayers in respect of other enactments, including the 1997 Act. This was achieved by the procedure for obtaining the view of the Commissioner under the system of private rulings, and by provisions which made such an opinion binding on the Commissioner if the 1997 Act would otherwise have ordained a result which was less favourable for the taxpayer. It was pointed out that, under s 357-85, a private ruling ceases to be binding if the provision to which the law relates is amended, unless the new provision expresses the same ideas as the old provision. "Therefore", it was said, "an amendment to a provision which is the subject of a private ruling ... may, through the operation of s 357-85, affect an entitlement arising under" the Administration Act.
17 The appellant's submission appears to involve the proposition that an amendment of the 1997 Act would, in a case such as the present was said to be, change what would otherwise be the presumptively correct, or lawful, content of a ruling given under the Administration Act, and thus affect entitlements (in the language of s 7(2) of the Acts Interpretation Act, "rights") arising under the Administration Act. I would accept that an amendment of the 1997 Act would have the potential to affect the content of a private ruling for which a taxpayer had applied before the amendment, and thus, in appropriate circumstances, the taxable income which would be the outcome of the Commissioner's assessment. However, accepting everything that the appellant has here submitted, the fact remains that the right referred to would be one which arose "under" the Administration Act rather than under the Act which was amended. This way of expressing the appellant's position gets it no closer to overcoming the problem to which I have referred in para 10 above.
18 Finally with respect to para (c) of s 7(2) of the Acts Interpretation Act, the appellant pointed to the occasion when Part 5-5 was introduced into the Schedule by an amendment made by the A New Tax System (Tax Administration) Act 1999 (Cth) ("the 1999 Act"). Previously, provisions to substantially the same effect were to be found in ss 170BA - 170BI of the Income Tax Assessment Act 1936 (Cth) ("the 1936 Act"). Absent any indication of an intention to effect substantive law reform at this time, it was said that it would be "anomalous" if the removal of provisions which previously would have given a taxpayer a "right" of the kind recognised by s 7(2)(c) into a separate Act were to be held to deprive him or her of that right.
19 I would accept that, in some situations, the fact that a particular construction of a statutory provision would give rise to anomalies might properly be taken into account in the course of identifying the intention of the legislature. But the issue which presently confronts the Court is not one of construction. No part of the appellant's submissions points to any provision which is said to be unclear, or of uncertain meaning, such that a construction which would not produce an anomalous result should be preferred. In these circumstances, it is not sufficient, and does not lead anywhere as a matter of legal analysis, for the appellant merely to propose that it would be anomalous for a taxpayer in its position to be denied the benefit of s 7(2)(c), whereas before the amendment made by the 1999 Act it would have had the benefit of that provision.
20 It may be that, when the amendment made by the 1999 Act was made, the legislature did not turn its mind to the consequences of the amendment to the operation of the Acts Interpretation Act apropos the position of a taxpayer who applied for a ruling before an amendment to the 1936 Act or the 1997 Act but who did not receive that ruling until after such an amendment. If so, it is not obvious how the legislature would have resolved that question had it thought about it. It could not be said that it would necessarily have done so by providing, for example, that, for the purposes of s 7(2) of the Acts Interpretation Act, the 1936 Act, the 1997 Act and the Administration Act were to be treated as the same Act. It is, however sufficient for present purposes to note that there is nothing in the terms of the relevant legislation, and nothing in the materials which are conventionally available as aids to construction, which points towards an intention to that effect.
21 As mentioned above, in its submissions recently filed the appellant relied also on para (b) of s 7(2) of the Acts Interpretation Act. It was said that its application for a private ruling "concerned the operation" of the 1997 Act, even though the right to a ruling as such did not arise under that Act. I would accept, of course, that s 7(2)(b) applied to the amendments to the 1997 Act effected by the 2012 Act. At that level, however, there could not be any doubt about the existence of a contrary intention within the meaning of s 2(2) of the Acts Interpretation Act. The provisions of the 2012 Act that dealt with the dates of application of the various amendments which were then made to the 1997 Act did affect, and were unambiguously intended to affect, the "previous operation" of the 1997 Act.
22 The appellant relied also on the second limb of s 7(2)(b) of the Acts Interpretation Act in submitting that the 2012 amendment to the 1997 Act had "the potential to affect something done ([the appellant's] ruling application) before the amendment" under the 1997 Act. In this part of its argument, however, the appellant has invoked a formula which finds no place in para (b). The question is not whether there was anything done before the amendment. It is whether there was anything done under the affected Act. In the present case, the thing referred to, the appellant's application for a private ruling, was done under the Administration Act, not under the affected Act.
23 Finally, the appellant submitted that, even if it were unable to rely on s 7(2) of the Acts Interpretation Act, the correct application of the common law presumption against the retrospective operation of legislation would produce the result for which it contended before the Tribunal. In this area of the case, it is sufficient to note the terms in which the presumption was articulated by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261, 267:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
It was submitted that, under this principle, the rights referred to are not limited to rights arising under the statute that has been amended. This submission must be accepted so far as it goes, since the rule referred to by Dixon CJ applies generally to new legislation, even in situations in which there was no amendment of an existing Act. Legislation by way of law reform which prohibited some previously unregulated activity, for example, would attract the operation of the rule.
24 When it comes to the application of the rule to the facts of the present case, however, it is not apparent that a result different from that which obtains under s 7(2) of the Acts Interpretation Act would be yielded. The rule takes as its starting point facts or events which have already occurred and in relation to which the law has defined rights or liabilities. The rule is then concerned with the application of the statute which changes the law to those facts or events. In the present case, the statute which changed the law was the 2012 Act, and the previous facts to which it applied were the taxable incomes of those who were subject to the 1997 Act. At this level, I do not understand it to be suggested on behalf of the appellant that the retrospective application of the 2012 Act did not, "with reasonable certainty", appear from the terms of that Act itself.
25 Although, in its written submissions recently filed, the appellant did not make it entirely clear where its common law argument would proceed from there, I am prepared to assume that its point is that the right which the law had defined by reference to past events was not the right to have its taxable income assessed in accordance with the pre-existing law but the right to which I referred in para 7 above, namely, the right to receive a private ruling in accordance with law. Immediately before the commencement of the 2012 Act, the appellant had a right to have its application for a review of the Commissioner's deemed disallowance dealt with by the Tribunal. That right was unaffected by that commencement. It may be that the content of any ruling made by the Tribunal would stand to be affected by the commencement, but, once one moves to outcome as distinct from process, one is back in the area of the 1997 Act and its clear intention of retrospective application with which I have dealt in the previous paragraph. Maxwell v Murphy is not authority for the proposition that a taxpayer in the position of the appellant in the present case may call upon the Tribunal to apply substantive assessment provisions which have been repealed, and contrary to clear indications as to the timing of the application of that repeal, purely on the basis that it had a procedure pending which would give it the benefit of the Tribunal's opinion (that is, on a review of the Commissioner's disallowance of an objection against his failure to provide his own opinion). At the point of providing that opinion, and subject, of course, to such operation as s 7(2) of the Acts Interpretation Act may have in the circumstances, the Tribunal would be bound by the law as it then knows it to be, including so much of it as lays down the timing of the application of recent changes to the law.
26 The only other matter which should be mentioned is the appellant's conditional reliance on s 43(6) of the AAT Act, to which Robertson and Davies JJ have referred in their reasons. On the hearing of the appeal, counsel for the appellant made it clear that, if their client were unsuccessful on the main points in the case - the existence of an accrued right under s 7(2) of the Acts Interpretation Act and the absence of a contrary intention under s 2(2) of that Act - it could not succeed under s 43(6). In the circumstances, I would say nothing about the operation of that subsection.
27 For the above reasons, the Tribunal was, as a matter of law, bound to answer the separate question in the negative. I would dismiss the appeal.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.