ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS
AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION
APPLIES – DECISIONS UNDER AN ENACTMENT – GENERALLY –
where the applicants seek judicial review of decisions of
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONSAND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATIONAPPLIES – DECISIONS UNDER AN ENACTMENT – GENERALLY –where the applicants seek judicial review of decisions ofthe respondent torefuse ex gratia relief – where the applicants argue that therespondent has misinterpreted the public rulings relevant to the exercise ofthediscretion – where the respondent has the discretion to grant exgratia relief – where section 4(a) of the Judicial Review Act1991 (Qld) requires two criteria to be met in accordance with the principlesstated in Griffith University v Tang [2005] HCA 7(2005) 221 CLR 99 – whetherthe refusal of ex gratia relief is subject to judicial reviewADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW– ERROR OF LAW – where the respondent published relevantpublicrulings on which the Commissioner will grant ex gratia relief fromadditional foreign acquirer duty and land tax foreign surcharge – where
the rulings required that the commissioner
be satisfied that the foreign
entities are Australian-based and that their commercial activities make a
significant contribution
to Queensland – where the applicants submit that
the Commissioner has misconstrued the terms of the rulings – where the
applicants argue that the Commissioner has misconstrued the rulings –
where the applications contend the respondent failed
to take into account a
relevant consideration and made an error of law – where there are limited
situations where the court
will interfere with a decision-maker’s
interpretation of policy – whether the respondent was bound to apply the
public
rulings – whether the Commissioner misinterpreted the public
rulings on the grant of ex gratia relief
Duties Act 2001
(Qld)
Financial Accountability Act 2009 (Qld), s 72
Judicial
Review Act 1991 (Qld), s 4(a)
Land Tax Act 2010 (Qld)
Agriwealth Capital Ltd v Commissioner
of Taxation [2019] FCA 56
(2019) 163 ALD 541, cited
Griffith University v Tang
[2005] HCA 7
(2005) 221 CLR 99, applied
Lawrence v Fuller [2024] HCA 45, cited
Minister for Immigration, Local Government and Ethnic Affairs v Gray
(1994) 50 FCR 189, cited
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)
(1979) 2 ALD 634, cited
Judgment (112 paragraphs)
[1]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES - DECISIONS UNDER AN ENACTMENT - GENERALLY - where the applicants seek judicial review of decisions of the respondent to refuse ex gratia relief - where the applicants argue that the respondent has misinterpreted the public rulings relevant to the exercise of the discretion - where the respondent has the discretion to grant ex gratia relief - where section 4(a) of the Judicial Review Act1991 (Qld) requires two criteria to be met in accordance with the principles stated in Griffith University v Tang[2005] HCA 7; (2005) 221 CLR 99 - whether the refusal of ex gratia relief is subject to judicial review
[2]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW - where the respondent published relevant public rulings on which the Commissioner will grant ex gratia relief from additional foreign acquirer duty and land tax foreign surcharge - where the rulings required that the commissioner be satisfied that the foreign entities are Australian-based and that their commercial activities make a significant contribution to Queensland - where the applicants submit that the Commissioner has misconstrued the terms of the rulings - where the applicants argue that the Commissioner has misconstrued the rulings - where the applications contend the respondent failed to take into account a relevant consideration and made an error of law - where there are limited situations where the court will interfere with a decision-maker's interpretation of policy - whether the respondent was bound to apply the public rulings - whether the Commissioner misinterpreted the public rulings on the grant of ex gratia relief
Minister for Immigration, Local Government and Ethnic Affairs v Gray(1994) 50 FCR 189, cited
[11]
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634, cited
[12]
[1] There are three applicants, Karrabin Estates Pty Ltd ('Karrabin'), Hayview Developments Pty Ltd ('Hayview), and Avon Capital Estates (Australia) Limited ('Avon). Karrabin and Hayview are wholly owned subsidiaries of Avon, which is a foreign company registered in the United Kingdom. Each of the three applicant companies acquire and own land which they then develop for the purposes of sale.
[2] The applicants seek judicial review of decisions of the respondent, the Commissioner of State Revenue, to refuse ex gratia relief. The applicants complain that the Commissioner has misinterpreted the public rulings that comprise the guidelines for the exercise of the discretion.
[3] At the outset, it can be observed that there is something counter-intuitive in the idea that the court can compel the Commissioner to exercise a discretion make an ex gratia payment. After all, by its very nature, an ex gratia payment is something granted as a favour, possibly from a sense of moral obligation, but not because of any legal requirement.[1] That problem underlies the three issues raised by this application:
[13]
(a) Are the Commissioner's decisions to refuse ex gratia relief susceptible to judicial review?
(b) Was the Commissioner bound to apply the public rulings?
(c) Assuming judicial review is available, did the Commissioner misinterpret the public rulings (or guidelines) on the grant of ex gratia relief?
[14]
[4] In my view, the answer to each question is 'no'.
[15]
Issue 1: Is the refusal of ex gratia relief subject to judicial review?
[16]
[5] The ex gratia relief sought from the Commissioner was:
[17]
(a) for Karrabin and Hayview, from additional foreign acquirer duty ('AFAD') under the Duties Act 2001 (Qld). AFAD is additional transfer duty payable by foreign entities who acquire land in Queensland;
(b) for Avon and Hayview, from land tax foreign surcharge ('LTFS') under the Land Tax Act 2010 (Qld). LTFS is additional land tax payable by a foreign company or trustee of a foreign trust.
[18]
[6] For Karrabin and Hayview's AFAD applications, this is a second round of decisions on their applications for ex gratia relief. They were refused relief on applications made in 2022 and 2023 and applied to judicially review those decisions. Judicial review of those decisions was sought on the basis that the applicants had been denied procedural fairness and because the Commissioner had misinterpreted the public rulings (discussed below). The respondent revoked the decisions just before the hearing of the application for judicial review.
[7] Karrabin and Hayview's applications for ex gratia relief were refused again in February 2025 in materially the same terms. This proceeding relates to those decisions to refuse ex gratia relief from AFAD and LTFS made in February 2025.
[19]
The source of the power to grant ex gratia relief
[20]
[8] Ex gratia relief of this kind can be granted by the Commissioner under a delegation to him by the Under Treasurer of a power exercised pursuant to s 72 of the Financial Accountability Act 2009 (Qld). That provision grants to the Under Treasurer, and by delegation to the Commissioner, a discretion to authorise "special payments" from departmental accounts. At the heart of the power to grant ex gratia relief is a discretion to be exercised by the Under Treasurer, or the Commissioner.[2]
[9] Can the exercise of that discretion be reviewed? Section 4(a) of the Judicial Review Act1991 (Qld) defines a "decision to which this Act applies" to mean: "a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)".
[10] The words in brackets make it clear that judicial review extends to the exercise of discretions. However, the words "made... under an enactment" requires two criteria to be met in accordance with the principles stated in Griffith University v Tang:
[21]
(a) the decision must be expressly or impliedly required or authorised by the enactment;
(b) the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.[3]
[22]
The second criterion in Griffith University v Tang
[23]
[11] The second of those criteria is that the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.[4] That criterion requires a "characterisation of the particular outcome which founds an application for review".[5]
[12] The characterisation of the outcome here has two important features. First, as the Commissioner points out, the outcome of the Commissioner's refusal of ex gratia relief was that the applicants' legal rights and obligations remained as they were before the refusal decision was made. The decisions are decisions which "change nothing".[6] For that reason, they are not reviewable under part 3 of the Judicial Review Act1991 (Qld).
[13] Second, the nature of the discretion here was not simply a statutory discretion to waive a tax or duty. In particular:
[24]
(a) the legal position was that AFAD is imposed on a relevant transaction if the land is acquired by foreign persons or entities for development.[7] And, it is not in dispute that the relevant transactions the subject of Karrabin's and Hayview's applications for ex gratia relief from AFAD were dutiable transactions which were subject to AFAD.[8]
(b) similarly, it is not in dispute that the relevant transactions the subject of Avon's and Hayview's applications for ex gratia relief from LTFS were subject to LTFS.
(d) the expression 'special payments' is defined in schedule 3 to include "ex gratia expenditure and other expenditure that is not under a contract";[9]
(e) by the public rulings (discussed below) the Queensland Government recognised that there may be some land acquisitions for developments where it would be appropriate to grant ex gratia relief from additional duty or tax. And, to do so by having regard to exceptional circumstances to be considered on a case-by-case basis and reflecting a government decision to support significant development, without diminishing the operation of the taxing statutes;
(f) the public rulings require that, in granting ex gratia relief, the Under Treasurer or Commissioner be satisfied that the foreign entities are Australian-based and that their commercial activities make a significant contribution to Queensland.
[25]
[14] That whole regime is consistent with the discretion to grant ex gratia relief being just what the expression 'ex gratia' suggests - a payment given as a favour, or from a sense of moral obligation, rather than because of any legal requirement. In other words, the regime stands outside the boundaries of legal obligations.
[15] As stated above, the second of the criteria in Griffith University v Tang requires that the decision "must itself confer, alter or otherwise affect legal rights or obligations".[10] That is distinctly not the case with an ex gratia payment. The potential recipient has no right to such a payment and the entity making the payment has no obligation to make the payment. As Wilson J explained in R v Simon Fleming[11] an ex gratia payment is, by very definition, a payment made by an "act of grace" and no order can compel the making of an ex gratia payment.[12]
[16] For those reasons, the Commissioner's decisions to refuse ex gratia relief from AFAD and LTFS made in February 2025 are not decisions made under an enactment and are not therefore decisions to the Judicial Review Act 1991 (Qld) applies.
[26]
Issue 2: Was the Commissioner bound to apply the public rulings?
[27]
[17] The Commissioner published a public ruling 'DA000.15.4 - Additional foreign acquirer duty - ex gratia relief for significant development' (the 'AFAD ruling') which sets out the conditions on which the Commissioner will grant ex gratia relief from AFAD. That ruling is "designed to strike a balance between providing relief in the appropriate instances while ensuring certainty and ease of administration for both industry and the Queensland Revenue Office".
[18] A similar ruling was published in relation to LTFS 'LTA000.4.3 - Guidelines for Ex Gratia Relief from the Land Tax Foreign Surcharge' (the 'LTFSruling'). It is in materially similar terms to the AFAD ruling,[13] save for an aspect which is discussed below.
[19] The AFAD and LTFS rulings require that, in granting ex gratia relief, the Commissioner be satisfied that the foreign entities are Australian-based and that their commercial activities make a significant contribution to Queensland. The expression "Australian-based" in the rulings requires a consideration of whether the entity has a presence in Australia through a head office or principal place of business; management staff and office presence; employs Australian citizens or permanent residents, carries on business in Australia; is managed by management or employees based in Australia; and (for the AFAD ruling) contracts with Australian contractors and suppliers.
[20] The applicants submit that the Commissioner has misconstrued the terms of the rulings, particularly those referring to people the applicants 'employ' and their 'management staff' or 'management', by requiring them to show that they have a direct master-servant relationship with those people. Consequently, the applicants argue that the Commissioner has misconstrued the rulings as not comprehending the engagement of people via a contract or an arrangement with a third party. Thus, the applicants contend that the Commissioner has:
[28]
(a) failed to take into account a relevant consideration; and
(b) made an error of law.
[29]
[21] The Commissioner submits that there was no misinterpretation of the policy, and the terms of the policy were properly applied, and were applied in a manner that accords with the purpose of the policy.
[30]
[22] Various versions of AFAD ruling have been in operation since 2016. The current version, issued on 24 August 2023, explains the operation of the AFAD ruling:
[31]
"1. Under Chapter 4 of the Duties Act 2001 (the Duties Act), an additional amount of duty (additional foreign acquirer duty, or AFAD) applies to direct or indirect transactions in land that are liable to transfer duty, landholder duty and corporate trustee duty where the land is 'AFAD residential land' and the acquirer under the transaction is a foreign person.
[32]
The Queensland Government recognises that there may be some land acquisitions for developments where it would be appropriate to grant ex gratia relief from additional foreign acquirer duty (AFAD), having regard to exceptional circumstances to be considered on a case-by-case basis.
These guidelines outline the factors that may be taken into account for determining ex gratia relief from AFAD imposed on relevant transactions under which AFAD residential land is acquired by a foreign corporation or trustee of a foreign trust (a 'foreign entity') for development purposes.
The proposed guidelines have been designed to strike a balance between providing relief in the appropriate instances while ensuring certainty and ease of administration for both industry and Queensland Revenue Office." [emphasis added]
[33]
[23] The concept of ex gratia relief is explained in this way:
[34]
"6. The granting of ex gratia relief under the guidelines will occur under a general discretion provided to the Under Treasurer (able to be delegated to the Commissioner of State Revenue) under the Financial Accountability Act 2009.
[35]
An ex gratia payment is made on the basis that liability does exist under the legislation, and an assessment is raised. However, the portion of the assessment for which ex gratia relief is provided is settled through the ex gratia payment. The availability of ex gratia relief from additional foreign acquirer duty reflects a government decision to support significant development, without diminishing the operation of the Duties Act." [emphasis added]
[36]
[24] Thus, the AFAD ruling operates as a guideline in the exercise of a discretion. It will be necessary to come back to the status of public rulings as guidelines for the exercise of a discretion - sometimes called 'soft law'.[14]
[25] The LTFS ruling is in similar terms to the AFAD ruling. Both rulings are designed to outline the factors that may be taken into account by the Under Treasurer/Commissioner in determining whether the discretion ought to be exercised to grant ex gratia relief from the surcharge rate.
[37]
Guidelines for ex gratia relief: 'Australian-based'
[38]
[26] Both rulings provide guidelines for ex gratia relief based on whether the foreign corporation or trust is 'Australian-based'. The AFAD ruling specifies, in general terms, the way in which the discretion will be exercised:
[39]
"8. The transactions for which ex gratia relief from AFAD may be considered are those undertaken by foreign corporations and trusts that are Australian-based and whose commercial activities involve significant development by adding to the supply of housing stock in Queensland (either through new developments or through re-development) and where such development is primarily residential." [emphasis added]
[40]
[27] That content comprises a guide to the exercise of the discretion. The next provision of the guideline identifies conditions that must be satisfied:
[41]
"9. In determining whether ex gratia relief from AFAD will be granted for the relevant transaction on which AFAD is imposed, all the following conditions (a) to (e) must be satisfied:
[42]
Whether the foreign entity undertaking the relevant transaction is Australian-based. A non-exhaustive list of factors that may indicate a foreign entity is 'Australian-based' include:
[43]
(i) The foreign entity has a head office or principal place of business in Australia.
(ii) The foreign entity has significant management staff and office presence in Australia.
(iii) The foreign entity employs Australian citizens or permanent residents.
(iv) The foreign entity carries on business in Australia.
(v) There is a considerable level of Australian participation in the foreign entity that conducts its activities in Australia. An example of 'Australian participation' is where decisions relating to the development of land under the relevant transaction are primarily made by management or employees based in Australia.
(vi) The foreign entity primarily contracts for services and materials of Australian building contractors and suppliers to engage in the development activities in Australia. In this context, 'primarily' means more than 50% of the value paid by the entity for goods and services goes to Australian contractors and suppliers.
[44]
The more of these factors that are established, the stronger the likelihood of establishing 'Australian-based'. Examples of evidence to establish these criteria may include details of a current ACN, ABN, ABRN or ASX listing and public details from other Australian regulators, details of previous developments, prospectus documents, minutes of meetings, corporate memoranda, payroll data, contracts, quotes or invoices with Australian building and service suppliers.
[45]
(e) Use of Australian goods, services and personnel
[46]
Whether the foreign entity primarily employs or contracts for services, materials of Australian building contractors and suppliers to engage in the development of land under the relevant transaction. In this context, 'primarily' means:
[47]
(i) more than 50% of the value paid by the entity for goods and services is paid to Australian contractors and suppliers
[48]
Note: A contractor or supplier can be Australian even if they use non-Australian sub-contractors or suppliers. However, the Commissioner will examine any cases where it appears that an Australian-based contractor or supplier is not genuinely the source of goods or services and has been inserted between an actual foreign supplier and the entity to give the appearance of Australian-sourced supply of goods and services.
[49]
(ii) more than 50% of the foreign acquirer's employees for the development, in total wage value or total number of employees, are Australian." [emphasis added]
[50]
[28] The idea is that the discretion will be exercised where the Under Treasurer or Commissioner assesses that the foreign entity is 'Australian-based' having regard to the above six factors.
[29] The LTFS ruling is in similar terms:
[51]
"In determining whether ex gratia relief from the foreign surcharge will be granted, all the following conditions in (a) to (d) must be satisfied:
[52]
Whether the foreign entity that owns the relevant land is Australian-based. A non-exhaustive list of factors that may indicate a foreign entity is 'Australian-based' include:
[53]
(i) The foreign entity has a head office or principal place of business in Australia.
(ii) The foreign entity has significant management staff and office presence in Australia.
[54]
(iii) The foreign entity employs Australian citizens or permanent residents.
[55]
(iv) The foreign entity carries on business in Australia.
(v) There is a considerable level of Australian participation in the foreign entity that conducts its activities in Australia. An example of 'Australian participation' is where decisions relating to commercial activities that make a significant contribution to the Queensland economy and community[15] are primarily made by management or employees based in Australia.
(vi) The foreign entity primarily contracts for services and materials of Australian contractors and suppliers to engage in its commercial activities in Australia. In this context, 'primarily' means more than 50% of the value paid by the entity for goods and services goes to Australian contractors and suppliers.
[56]
The more of these factors that are established, the stronger the likelihood of establishing 'Australian-based'. Examples of evidence to establish these criteria may include details of a current ACN, ABN, ARBN or ASX listing and public details from other Australian regulators, prospectus documents, minutes of meetings, corporate memoranda, payroll data, contracts, quotes or invoices with Australian contractors and suppliers.
[57]
[30] If there was any doubt that these are merely guidelines for the exercise of a discretion, the words at the beginning of that last quoted paragraph, "The more of these factors that are established, the stronger the likelihood of establishing 'Australian-based'", demonstrate that an assessment is being made by the Under Treasurer or Commissioner.
[58]
[31] The Commissioner decided that the factors in 9(a)(ii), (iii) and (v) were not satisfied. In the Avon decision, the Commissioner said this:
Paragraphs 9(a)(i) through 9(a)(vi) of the Public Ruling comprise a non-exhaustive list of factors that may indicate a foreign entity is 'Australian-based'. As outlined in paragraph 9(a) of the Ruling, the more of these factors that are established, the stronger the likelihood of establishing 'Australian-based'. On balance, based on the information set out above, you have not established that you are Australian-based. In summary:
[61]
You do not establish the factor that you have significant management staff and office presence in Australia as you do not directly engage employees and do not have management staff nor does an entity wholly owned by you under paragraph 9(a)(ii) of the Public Ruling.
You do not have employeesnor does an entity wholly owned by you, and you therefore do not establish the factor that you employ Australian citizens or permanent residents under paragraph 9(a)(iii) of the Public Ruling.
The local management team make the decisions as listed above relating to the development of land under the Relevant Transactions and the local management team is not employed by you, or an entity wholly owned by you, and you therefore do not establish the factor that you have a considerable level of Australian participation under paragraph 9(a)(v) of the Public Ruling." [Applicants' emphasis]
[62]
[32] The applicants argue that the Commissioner was mistaken in his interpretation of the rulings as requiring direct "employment" of employees by the foreign entity (or its parent or another wholly owned subsidiary of the parent), in a traditional master-servant relationship. The applicants say that that erroneous interpretation was a failure by the Commissioner to take into account a relevant consideration, or alternatively, is an error of law which justifies the setting aside of the decision.
[63]
[33] The applicants contend that the principles of statutory interpretation apply to construing the rulings.[17] I reject that submission. The passage relied on by the applicants from Pearce merely records that many of the interpretative principles discussed in that text are applied to standards and guidelines.[18] As the submissions for the Commissioner explain, the principles of statutory interpretation might sometimes be useful in interpreting a government policy document. That is because they can be useful guides for attributing meaning to any text - which is why many similar principles are also relevant to the interpretation of private documents.[19]
[34] In Minister for Immigration, Local Government and Ethnic Affairs v Gray, French and Drummond JJ explained that policy is not to be construed and applied with the nicety of a statute, and that policy documents are not statutory instruments.[20] They prescribe guidelines in general, and not always in precise language. To apply policy documents with statutory nicety is to misunderstand their function.[21]
[35] The evident purpose of these public rulings is to explain, for the benefit of applicants and the public, including taxpayers, the circumstances in which the Commissioner may authorise payment to a foreign company (notwithstanding the lack of any subsisting legal obligation).[22] The terms of the public rulings reflect the discretionary nature of what the Commissioner 'may' do. Thus, ex gratia relief from AFAD "may be considered" for transactions undertaken by foreign corporations "that are Australian-based and whose commercial activities involve significant development by adding to the supply of housing stock in Queensland ... and where such development is primarily residential".[23]
[36] As the Commissioner's submissions explain, several aspects of the AFAD policy are relevant here:
[64]
(a) it reflects the Queensland Government's recognition that "there may be some land acquisitions for developments where it would be appropriate to grant ex gratia relief from [AFAD], having regard to exceptional circumstances to be considered on a case by case basis";
(b) it "outlines the factors that may be taken into account" in determining ex gratia relief from AFAD.
(c) it states that it was "designed to strike a balance between providing relief in the appropriate instances while ensuring certainty and ease of administration for both industry and Queensland Revenue Office".
(d) it involves a judgment, to be made by the Commissioner, about whether the company is 'Australian-based'.[24]
[65]
[37] Importantly, the assessment exercise required of the Commissioner involves an evaluation of the various factors and an application of the policy in the AFAD ruling. That assessment exercise is necessarily one in which different people might come to different views on the application of the policy and whether the particular case is an appropriate one for an ex gratia payment.
[38] The same considerations apply to the LTFS ruling.
[66]
[39] There are limited situations where the court will interfere with a decision-maker's interpretation of policy or the decision-maker's application of the policy to the particular situation. Some examples of the very limited situations where the court will interfere are important to explain.
[67]
(a) First, where the existence and content of a policy was a relevant fact which the decision-maker was bound to consider, a serious misinterpretation of the terms of the policy or a misunderstanding of its purposes by the decision-maker in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power.[25]
(b) Second, where a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else.[26]
(c) Third, where a misinterpretation of the policy by a decision-maker may reduce to a misconstruction of the statute or a misunderstanding of its purpose.[27]
(d) Fourth, 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, especially if the policy is shown to have been exposed to parliamentary scrutiny.[28]
[68]
[40] Those examples illustrate that the court will only rarely interfere where the decision-maker has not applied or has misapplied the decision-maker's own policy.[29] Much depends on the legislation, and whether the decision-maker's conduct can be regarded as having stepped outside what was contemplated by the statute. For my part, there is a sound basis for these views of Robertson J in Save Beeliar Wetlands (Inc) v Jacob:
[69]
"I hold a considerable reservation as to whether there is a general legal principle of universal application to the effect that a decision-maker is bound to take account of any relevant policy which he or she has formulated as a condition of the valid exercise of jurisdiction."[30]
[70]
[41] Here, the Commissioner has published the public rulings as guidelines for the exercise of a discretion under s 72 of the Financial Accountability Act 2009 (Qld). That provision grants to the Commissioner a discretion to authorise "special payments" from departmental accounts.[31] It is a discretion to grant ex gratia relief - that is relief given as a favour, rather than because of any legal requirement.
[42] The applicants argue that an exercise of the discretion under s 72 of the Financial Accountability Act 2009 (Qld) to grant ex gratia relief can be the source of substantive rights for an applicant. The applicants also contend that those possible substantive rights can be denied to an applicant if the discretion is not exercised. Those arguments are based on Agriwealth Capital Ltd v Commissioner of Taxation.[32]
[43] Those arguments cannot be accepted. Agriwealth involved an application to the respondent Commissioner of Taxation for a public ruling pursuant to what was at one time s 14ZAAG of the Taxation Administration Act 1953 (C'th). The Commissioner of Taxation declined to issue a product ruling and the issue before the court was whether that decision was reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth). What was in issue was the applicant's access to a statutory regime which may affect the incidents of another statutory regime, the taxing regime, on the applicant or the entities or class of entities the subject of the application for the ruling. Robertson J decided that the character of the decision, and its legal effect, was to exclude the applicant from the statutory benefits to which it may have had access if the ruling had been made.
[71]
Issue 3: Did the Commissioner misinterpret the public rulings?
[72]
[46] Even assuming the court is entitled to interfere, the Commissioner's interpretation of the public rulings is not mistaken.
[47] The applicants admit they have no employees (let alone any Australian employees). All the people who work for them, including in management roles, are engaged through a service company.[34] The applicants argue that, for the purposes of paragraph 9(a)(iii) of the AFAD ruling, they should be considered to 'employ' these workers. Further, the applicants contend that a broad meaning of the expressions "employs", "management staff" and "personnel" is supported by the distinction, which paragraph 9(a)(v) draws, between "management", on the one hand, and "employees" on the other hand.[35]
[73]
[48] It is true that in other contexts the expression 'employ' may have a wide meaning. But in this case the context is as follows: "The foreign entity employs Australian citizens or permanent residents".[36] There is every reason for thinking that the draftsperson has used the concept of 'employs' is its ordinary literal meaning, rather than its wider meaning. That is because, by its terms, the AFAD ruling discriminates between employees, management and contractors.[37]
[49] And, as the Commissioner points out, paragraph 9(e)(ii) of the AFAD ruling refers to 50% of the foreign acquirer's employees "in total wage value or total number of employees" being Australian.[38] The use of the expression 'wage value' is a further indicator that the word 'employees' is intended to refer to persons under a contract of employment, as it is employees and not contractors who will receive a wage.[39]
[50] The applicants argue that the purpose of the rulings is furthered whether or not the foreign entity uses employees, managers, contractors or other agents, provided that those persons, who are engaged, are Australian citizens or residents.[40] The argument is not convincing. The argument rather ignores the relatively plain language of the ruling and its deliberate use of the expression 'employs' as compared with the discussion of contractors elsewhere.
[74]
[51] Similarly, I do not accept it is fair to interpret the rulings as drawing a neat distinction between 'management' and those employed by the foreign entity. At the core of what is being considered by the Commissioner is whether the entity can be properly regarded as 'Australian-based'. That assessment as to whether the entity is 'Australian-based' involves multiple considerations such as:
[75]
(a) does the foreign entity or the transaction contribute to Queensland housing stock?
(b) is the entity's head office or principal place of business in Australia?
(c) is there significant management staff and office presence in Australia?
(d) to what extent does the foreign entity carry on business in Australia?
(e) where are the decisions made?
(f) is more than 50 per cent of the value paid by the foreign entity for goods and services paid to Australian contractors and suppliers?
[76]
[52] There is some sophistication to the factors. Factor (c) above is the requirement is that "The foreign entity has significant management staff and office presence in Australia". That focusses attention on how the entity conducts its business. The concept is that those making the management decisions, whether they be day-to-day decisions, administration decisions, or board or executive decisions, have a presence in Australia.
[53] The factors listed in the rulings are expressed to be a non-exhaustive list of factors to be taken into account by the Commissioner.
[54] There is, in my view, every reason for thinking that the words used in the rulings are used deliberately and literally - with the word 'employs' having its ordinary meaning. I reject the idea that the words used ought not be given their ordinary literal meaning and that the interpretation of the rulings should be given the broad brush or rather imprecise approach argued by the applicants. The context provides little support for the idea that the rulings adopt a neat distinction between 'management' and those 'employed' by the foreign entity in the sense of employees and contractors.
[77]
[55] Clause 9(e) of the AFAD ruling is confusing and does not make grammatical sense:[41]
[78]
"Whether the foreign entity primarily employs or contracts for services, materials of Australian building contractors and suppliers to engage in the development of land under the relevant transaction".
[79]
[56] However, in light of the context, it is difficult to construe that sentence (if it is a sentence) as giving the foreign entity an option of proving that it either employs Australians or engages the services of Australian contractors. What clause 9(e) requires is that:
[80]
(a) more than 50% of the value paid by the entity for goods and services is paid to Australian contractors and suppliers;
(b) more than 50% of the foreign acquirer's employees for the development, in total wage value or total number of employees, are Australian.
[81]
[57] In any event, the approach of the Commissioner hardly qualifies as a serious misinterpretation of the rulings. The interpretations adopted by the Commissioner were entirely open. In interpreting and applying the rulings, the Commissioner was applying the Commissioner's own assessment of the foreign entities' circumstances against a document that recorded the Commissioner's own statement of policy. The Commissioner was entitled to adopt a broad or narrow view of the concept of 'employs' in his own statement of policy.
[58] For those reasons the application is dismissed. I will hear the parties on costs.
[82]
[1] See Macquarie Concise Dictionary, 3rd ed at 386.
[83]
[2] For convenience, I will simply refer to the discretion as the Commissioner's discretion even though the power is delegated by the Under Treasurer to the Commissioner.
[6] Respondent's submissions at [31] citing Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022) at [2.580]. Those submissions also cite examples such as Eastman v Besanko[2010] ACTCA 15; (2010) 244 FLR 262 at [8]-[11] and Trask Development Corporation No 2 Pty Ltd v Moreton Bay Regional Council[2018] QSC 170; [2019] 2 Qd R 82 at [134]- [143]. In a recent case, Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Ltd v Chief Executive, Department of Environment, Science and Innovation[2025] QSC 132 at [27] Burns J decided that the decision did not create any liability for the applicant and did not affect any existing right of the applicant or create any right or obligation in the applicant going forward. Thus, the decision was not amenable to judicial review.
[25]Minister for Immigration Local Government & Ethnic Affairs v Gray(1994) 50 FCR 189; (1994) 33 ALD 13 at 30, 31. See also the consideration of that case in Minister for Foreign Affairs v Lee[2014] FCA 927 at [59] - [61].
[101]
[28]Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634 at 645.
[102]
[29] In Minister for Immigration Local Government & Ethnic Affairs v Gray(1994) 50 FCR 189; (1994) 33 ALD 13 at 31 French and Drummond JJ said that the court's jurisdiction to review decisions of a tribunal is required be exercised "with restraint".
[44] The statutory context here is entirely different. In this case the Commissioner has not just a discretion, but a discretion to grant ex gratia relief. The fact that the Commissioner chose to frame the exercise of the discretion in a public ruling does not dilute the effect of s 72 of the Financial Accountability Act 2009 9 (Qld) - which was to enable the Commissioner to grant the relief as a favour.
[45] In my view, there is no proper legal basis for saying that the Commissioner was bound to apply his own rulings in exercising that discretion.