Mookhey v Department of Finance, Services and Innovation

NCAT Administrative and Equal Opportunity|2018-03-19

Introduction

This is an application made under the Government Information (Public Access) Act 2009 (NSW) ("the Act") for administrative review of a decision made by Department of Finance, Services and Innovation ("the Agency") to grant Nitin Daniel Mookhey MLC only part of the information which he sought access to under the Act. The request for access to information in issue was remitted to the Agency by the Tribunal, by consent, on 28 November 2017. It sought access to the following revised data set: The identity of, and the amount of duty paid by, the top 100 corporations who paid each of the following: Mortgage Duty; and Marketable Securities Duty in each of the 2014/15 and 2015/16 financial, where "top 100" means the corporations that paid the highest amounts of each duty, whether or not the duty was paid in their own capacity or in a trustee capacity.
On 18 January 2018 a decision was made by the Agency ("the reconsideration") to release to Mr Mookhey the information he sought in tabular form, but with identity information (names and company numbers) relating to the individual corporations who had paid the 100 highest amounts of each relevant duty deleted. Thus, the Agency withheld identity information relating to who paid the duties, but released quantum information with respect to amount of the duties paid by the top 100 corporations paying the duties. The identity information was withheld on the basis that there was, on balance, an overriding public interest consideration against disclosure of the names and identity information of those corporations.
Mr Mookhey was not satisfied with the outcome of the reconsideration by the Agency, and sought administrative review of the reconsidered decision under the Act.
Ultimately, the matter came before me for hearing on 19 March 2018 when, having heard evidence and argument, I reserved my decision.

Material before the Tribunal

In considering this matter I have had regard to the following material: 1. the reconsideration decision of the Agency dated 18 January 2018; 2. three affidavits of Cullen Smythe, Executive Director, Technical and Advisory Services, Revenue NSW, dated 20 February 2018, 26 February 2018 and 16 March 2018, with attachments. Mr Smythe is the Executive Director, Technical and Advisory Services, of Revenue NSW. He is legally qualified, and has held that position since August 2016. Before then he worked for a variety of law firms. Immediately before being appointed to his current position he was the Director of the Tax Division of KPMG Australia; 3. affidavit of Nitin Daniel Mookhey dated 12 March 2018 with attachments; 4. the Agency's submissions dated 16 February 2018; 5. Mr Mookhey's submissions in reply dated 12 March 2018; 6. the Agency's further submission in reply dated 16 March 2018; and 7. a confidential and unredacted copy of the information in issue, supplied to the Tribunal by the Agency for the purpose of making its decision and without Mr Mookhey or his representative being given access to it, in accordance with s 107(2) of the Act. The information is contained in two tables which list the 100 corporations that paid the most mortgage duty and marketable securities duty respectively in the years concerned.
In the course of the hearing I heard oral evidence from Mr Smythe, and oral submissions from Mr J Mack for Mr Mookhey, and Ms R Mansted for the Agency.

The Government Information (Public Access) Act 2009

The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in s 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
'Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4.
The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9).
Subsection 14(1) provides that government information described in Schedule 1 of the Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. None of the information sought by Mr Mookhey falls within this category.
With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct
There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides - There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
In considering whether there is an overriding public interest against disclosure s 16 provides that the following principles apply - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that - The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
The public interest considerations against disclosure relied on by the agency in this case are to be found under the following categories in the Table to s 14: 1. "Responsible and effective government", specifically cl 1(d) and (f) and (g) which provide: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): (a) … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) … (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, … 1. "Business interests of agencies and other person", specifically cl 4(d) which provides: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) … (d) prejudice any person's legitimate business, commercial, professional or financial interests, … 1. "Secrecy provisions" in the Table to s 14, specifically cl 6 which provides: (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. (2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.
Before deciding an access application which, among other things, seeks access to information that includes information about a person's business, commercial, professional or financial interests, s 54 of the Act requires that the agency take such steps as are reasonable practicable to consult with that person before providing access. A reference to a person includes a reference to a corporation or body corporate: see s 21 of the Interpretation Act 1987 (NSW). In this case the Agency has not sought the views of the corporations whose business, commercial, professional or financial interests, might be disclosed by release, but considered that consulting with so many corporations not to be reasonably practicable.
Section 55 provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances they may also be taken into account in refusing access. There is no suggestion that s 55 applies in Mr Mookhey's case.
An access application is to be determined in accordance with s 58 - (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note. These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) …
In exercising functions under the Act s 3(2) instructs that - It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 73 requires that access be unconditional.
Section 80 sets out a series of decisions that are reviewable decisions under the Act. It relevantly provides - The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: (a) … (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) …
A person aggrieved may seek a review by the Tribunal (s 100). Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application."
Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98).
In any review of a reviewable decision s 105 places the burden of justifying the decision on the agency concerned. It provides - (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.
The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 (NSW) is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides - (1) In determining an application for NCAT review, the NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT review, the NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. …
The Tribunal has received the identity information in issue in this proceeding on a confidential basis to the exclusion of Mr Mookhey and his representatives, in accordance with s 107(2).
The identities of the top 100 corporations was obtained by writing an SQL query to interrogate the Agency's databases, and then manipulating and sorting the results of that SQL query. This is consistent with s 75(1) of the Act which provides: (1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information. (2) An agency's obligation to provide access to government information in response to an access application does not require the agency to do any of the following: (a) make a new record of information held by the agency, (b) update or verify information held by the agency, (c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.
The Agency did not seek to rely on s 75(2)(c).

Concerning Mortgage Duty and Marketable Securities Duty

Mortgage duty and marketable securities duty were both payable under the Duties Act 1997 (NSW). They were phased out over a number of years, commencing in 2001, in accordance with Intergovernmental agreements relating to the introduction of the Goods and Services Tax. They were finally abolished on 1 July 2016. The information sought by Mr Mookhey in his access application therefore relates to the final two financial years in which those duties were payable, by which time the relevant duties had been significantly reduced.
Mr Smythe made the point, confirmed in cross-examination, that different methods were used by the Agency to collect information concerning transactions on which mortgage duty and marketable securities duty were payable. With mortgage duties users and their agents could use the electronic EDR system. If the transactions were complex, they could be lodged for assessment. With marketable securities the instrument in issue was lodged for assessment and a notice of assessment raised.
These duties were calculated based on the value of the security in issue. In his affidavit of 16 March 2018 Mr Smythe asserted the amount of money corporations spend in paying their duties is commercially sensitive information of the corporations paying it. The release of identity information relating to the payment of mortgage duty would enable competitors to determine how highly leveraged a corporation is. The release of identity information with respect to the payment of marketable securities duty, he said, would enable inferences to be made about the value of transactions.
While it may be possible for a competitor to attempt to draw such conclusions from the release of all the information sought by Mr Mookhey, I am not persuaded that this is generally a risk or probable outcome. This is so because: 1. the information sought only relates to the mortgage duty and marketable securities duty paid in NSW and not in other states and/or overseas (which information would, among other things, be necessary to determine how leveraged a corporation is); 2. the information sought does not indicate how many transactions the mortgage duty or marketable securities duty paid by a corporation relates to, resulting in a necessary parameter being missing before one could even arrive at an average value per transaction (itself an unreliable measure); and 3. there is no evidence as to how many of the top 100 corporations paying the duties operate in NSW alone, or of the number of transactions they have been involved in to get into the top 100 list.
Additionally, it needs to be understood that with registerable mortgages over Torrens Title land the duty paid on a mortgage transaction will, once the mortgage is registered, be discoverable by an examination of the public databases held by the NSW Land Registry Service. However, only individual transactions can be accessed making it highly improbable that information of the kind sought by Mr Mookhey could be obtained from multiple examinations of that source.

Are there public interest considerations in favour of disclosure?

In the reconsideration the Agency acknowledged that the public has an interest in information relating to the payment of mortgage duty and marketable securities duty, including an interest in the top 100 corporations who paid those duties. The reconsideration noted what the delegate described as, "the recent public interest in leaning how much the largest corporations in Australia have paid in tax", and made reference to an ABC News article headlined, ATO says 30 per cent of large private companies pay no corporate tax.
In submissions the Agency did not go so far, but did acknowledge the "general public interest in favour of disclosure" in s 12 of the Act. Section 12 relevantly says: (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
In his affidavit Mr Mookhey gave evidence about his multifaceted role as an ALP MLC in NSW, and his observations of and interest in current issues relating to taxation policies at both Commonwealth and State levels. He talked of: 1. increasing interest in the transparency of tax laws and the development, especially at Commonwealth level, of tax transparency measures, both compulsory and voluntary, aimed at ensuring corporations pay their tax and manage their tax affairs transparently. Thus, the Commissioner of Taxation now publishes the names, ABNs, total income, taxable income, tax payable and amounts of PRRT (petroleum rent resources tax) and MRRT (minerals rent resources tax) paid of more than 1500 large corporate tax payers. The ATO is also urging corporations to undertake tax transparency reporting themselves; 2. the active debate on the interplay between taxation policies, productivity and economic growth, and the need for greater information on State corporate taxes and duties, to assess the "transmission effects of state tax reductions;" 3. the debate on the interplay between taxation policies, wage growth and equality. Mr Mookhey says that the advent of Commonwealth tax transparency laws has led to the comparison of intended with actual outcomes; an object which cannot be achieved without similar transparency at state taxation level; and 4. the debate of financing of government including which taxes or duties are the most efficient and concerning the distributional justice of various methods of taxation
Apart from asserting that release of identity information would assist in informing these debates, Mr Mookhey did not explain in his affidavit how that information would assist, advance or benefit macro-level analysis of the impact, efficiency and distributional benefits of the duties.
In oral submissions the Agency argued that disclosure of the identity information in issue is not necessary to inform the debates discussed by Mr Mookhey at a macro level, and argued that tax transparency is not a feature of revenue collection in NSW, despite the moves to transparency and disclosure at Commonwealth level. State tax legislation has not been amended to provide for corporate tax transparency.
In his evidence Mr Smythe made the point that given the nature of the duties, being levied on the value of transactions engaged in by corporations, rather than corporate income, the identity information is likely to change significantly from year to year, being reliant on the number of and size of transactions engaged in by individual corporations each year.
In my view the evidence establishes that there are a number of public interest considerations in favour of disclosure of the identity information sought by Mr Mookhey. Aside from the general public interest in favour of disclosure in s 12(1), I am satisfied that the release of the identity information could inform the public interest in: 1. corporations complying with their tax obligations: and 2. the Agency's accountability for ensuring corporate compliance with those obligations.
Each of these considerations is deserving of weight.
I am not persuaded that the identity information is necessary to inform macro level debates concerning the efficiency of competing taxes and duties, their impact on wage growth etc, or of a comparison between the relative efficiency of State and Commonwealth taxes, or their distributional justice. I do not accept that identity information is necessary for such an analysis to be made.

Are there public interest considerations against disclosure?

The table to s 14 requires that the decision maker be satisfied that each of the public interest consideration against disclosure set out in the table "could reasonably be expected to occur."
The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 (NSW) and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words - "... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like."
Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 that, at [61] - "… when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". And the same approach should be taken to the expression "reasonable grounds" .,."
See also Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at [61-67]

Section 14 - cl 6- secrecy provisions.

It is convenient to deal with whether there is a public interest consideration against disclosure under cl 6 first. It provides: (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. (2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.
Division 3 of Part 9 of the Taxation Administration Act 1996 (NSW) contains secrecy provisions. Of particular relevance in the current circumstances are s 81, 83 and 85A. These provide: 81 Prohibition on certain disclosures of information by tax officers A person who is or was a tax officer must not disclose any information obtained under or in relation to the administration of a taxation law, except as permitted by this Division. Maximum penalty: 100 penalty units. 83 Permitted disclosures - of a general nature The Chief Commissioner may disclose information obtained under or in relation to the administration of a taxation law unless that information will or is likely to: (a) directly or indirectly identify a particular taxpayer, or (b) disclose matters concerning the personal affairs of a particular taxpayer. 85A Disclosures under other laws (1) This Division does not prevent the disclosure of information obtained under or in relation to the administration of a non-taxation law, in the exercise of functions conferred or imposed by or under that law, even if those functions are exercised in conjunction with functions exercised under a taxation law. Note. Section 80B makes it clear that functions exercised by authorised officers under a taxation law may be exercised in conjunction with functions exercised by them under non-taxation laws. (2) However, this section does not authorise the disclosure of any such information in contravention of the non-taxation law under which the functions are exercised. (3) In this section: non-taxation law means any law of this State that is not a taxation law.
Section 4 of the Taxation Administration Act provides that the Duties Act is a taxation law for the purposes of the Taxation Administration Act.
Unlike some other secrecy provisions in legislation, the secrecy provision in the Taxation Administration Act are not the subject of a conclusive presumption of an overriding public interest against disclosure under s 14(1) of the Act and are not mentioned as an overriding secrecy law in Sch 1.
As a consequence, while release of the identity information in issue in this proceeding (disregarding the operation of the Act) by the Agency would be a breach of s 81 of the Taxation Administration Act (and contrary to s 83), access to the information could be granted to Mr Mookhey, if, on balance, there is an overriding public interest consideration in favour of disclosure. One of the public interest considerations against disclosure in those circumstances would be that release could reasonably be expected to breach the secrecy provisions of the Taxation Administration Act.
In Consolidated Press Holding Ltd, v Federal Commissioner of Taxation (1995) 128 ALR 443 at 446 Lockhart J explained that at the heart of the secrecy provision in the taxation legislation was the requirement that: It is essential if the confidence of taxpayers is to be maintained that private information concerning their finances and affairs will not be disclosed except in the special circumstances mentioned. That this is a public policy underlying the secrecy provisions of the Tax Administration Act is evident from the very clear word of s 85.
Mr Mookhey in submissions suggested that a reading of the Agency's submission indicated that it was relying on cl 6(2) alone. I do not agree. As I understand the submission, the Agency is relying on cl 6(1) as extended to the policy considerations underlying the prohibition on disclosure in accordance with cl 6(2).
I am satisfied that the secrecy provisions of the Taxation Administration Act constitute a public interest consideration against disclosure of the identity information because its release could reasonably be expected to constitute a contravention of s81 and 83 of that Act. The suggestion that the identity information was obtained as a result of processing under the Act is rejected: the primary information was obtained by the Agency under the Duties Act.
Similarly, I reject Mr Mookhey's submission that the fact the identity information relates to corporations, rather than individuals, should result in a distinction being made as to whether a public discussion of their individual tax affairs should be facilitated by the release of corporate tax information. No matter what the merits of the move by the Commonwealth towards transparency in the treatment of the tax affairs of corporations, or the support such moves have in the community, the reality is that the secrecy provision of the Taxation Administration Act remains in their current form.
In my opinion this public interest consideration against disclosure merits considerable weight.

Section 14 - cl 1(d) - prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

In Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [33] the Appeal Panel outlined the general approach to be adopted in determining whether or not information is confidential information. In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service.
In his affidavit of 16 February 2018 Mr Smythe said that the payment of duties in NSW is based on self-assessment, where taxpayers are responsible for lodging relevant documents within legislated time lines. The Agency undertakes audits to ensure compliance. In his affidavit of 16 March 2018, Mr Smythe outlined other elements that he said "underpin" duty collection in NSW. These included, "confidence in the administration of the duty system, confidence in the Australian legal system to seek review and knowledge that a compliance function also exists." He said that, in his experience, the vast majority of the users and their legal advisors ensure compliance, and that there is a "culture of compliance". Confidentiality is a cornerstone of that culture.
In his affidavit Mr Mookhey noted that the Agency said it relied on self-reporting in its collection of state duties and taxes. He set-out a number of searches he had conducted of the Revenue NSW website, using the google search engine, which had been unable to find any mention of "self-reporting", "self-report" or similar, appearing on the publicly indexed part of the Revenue NSW website. The implication being that, as a consequence, that while Revenue NSW says it relies on self-reporting for its revenue collection, that is information it does not share with the general public on its website or with the users of its EDR system in its Mortgage Processing on EDR Financial Institutions Manual. This last point ignores the fact that the use of the EDR system by users, and the completion of forms so that the duty payable can be assessed is necessarily a form of self-reporting by those involved in the transaction or their agents.
In his affidavit of 16 February 2018 (supplemented by the affidavit of 29 February 2018) Mr Smythe also set out his understanding of the law relating to taxation information and of the practices adopted within the Agency for dealing with the information. These include that: 1. The secrecy provisions of the Taxation Administration Act require that the agency keep taxpayer information secret as discussed above. 2. Officers of the Agency must comply with the Code of Conduct which cautions: We are all responsible for the effective and efficient handling of date and information created, received or collected as part of our work. You must only use official data, information and information management systems for work-related purposes and in accordance with NSW legislation. You must only disclose or use confidential data and information with appropriate approval and because you are authorised to do so by legislation. We must all make sure that: • Confidential data and information (in any form), including that stored on communication devices, is appropriately secured so that it cannot be accessed by unauthorised people • Confidential data and information, including personal and private information, is only disclosed to or discussed with people, either within or outside the Department who are authorised to have access to it • We do not reveal personal data and information, such as home addresses or telephone numbers of other departmental employees to enquirers, even when the person claims to be a relative for friend. Instead offer to take the enquirer's details and pass them on to the person concerned. 1. Mr Smythe referred to an annual declaration to be completed by staff of the Agency entitled Undertaking to maintain confidentiality and secrecy relating to information. This can be downloaded from a page on the Agency's intranet, which includes a link to guidance notes on the release of personal or confidential information under the Act. The undertaking annexed to the affidavit did not appear to be current, being dated August 2015 and referring to the Office of State Revenue (OSR). It referred to the secrecy provision in the Acts administered by the OSR, the need to treat such information with care and confidentiality, not to access or disclose it without authority, to protect and change passwords, and the degree of seriousness with which the Agency would treat "any breaches of the legislative provisions." The undertaking includes a specific undertaking "not to disclose any information except as authorised by the provisions listed hereunder". There is no such list. 2. Mr Smythe referred to privacy statements included on various forms taxpayers are required to complete. Annexed to his affidavit were two applications under s 220 of the Duties Act, both of which contained the following privacy statement: Information required from you on this form is required by the Office of State Revenue (OSR) to determine if you have a liability or entitlement. The information may be provided to third parties with your consent or as required by law. OSR will correct or update your personal information at your request. … 1. Mr Smythe referred to a statement on Revenue NSW's website which says: All Revenue NSW officers are bound by legislative secrecy provisions. Information gathered during an investigation is treated with the strictest confidence and will not be used or divulged except for purposes required by law. 1. Mr Smythe argued that taxpayers and their agents have an expectation of confidentiality which is: … partly due to the legislative secrecy provisions and partly due to privacy statements on various forms the taxpayers are required to complete. 1. He argued that secrecy is crucial to the Agency's performance of its revenue functions because: 1. confidentiality underpins NSW Revenue's tax collection model; 2. the powers of Revenue NSW to investigate and obtain information are broad, and the secrecy provisions offer comfort to taxpayers; and 3. so that information obtained for other agencies (both interstate and within NSW) will be treated in accordance with corresponding secrecy provisions. No details were provided of those corresponding provisions. 1. Mr Smythe attached to his third affidavit a document entitled Mortgage Processing on EDR Financial Institutions Manual. This sets out how users outside the Agency can use an EDR to lodge returns of mortgage duties among other things. He explained how that process worked at paragraphs [29 to 38]. His evidence did not directly address who can be use the EDR system as user, but said that contracts entered into by the Agency contained confidentiality and secrecy provisions, which he did not disclose.
In submissions, Mr Mookhey drew a distinction between the provisions of a public service such as the 000 service on a confidential basis, and the collection of duties on behalf of the State by the Agency. He questioned Mr Smythe's assertion that self-reporting and a culture of compliance underpins the duty collection system in NSW, and pointed to consequence of non-compliance in terms of penalties, and by virtue of the operation of s 304 of the Duties Act. This provides - 304 Receipt of instruments in evidence (1) An instrument that effects a dutiable transaction or is chargeable with duty under this Act is not available for use in law or equity for any purpose and may not be presented in evidence in a court or tribunal exercising civil jurisdiction unless: (a) it is duly stamped, or (b) it is stamped by the Chief Commissioner or in a manner approved by the Chief Commissioner.
On the other hand, the Agency, in submissions, submitted that a consideration of the "administrative standards and community expectations" surrounding the receipt of duty information by the Agency, point to it having established a method whereby such information is supplied in confidence. The evidence of community expectations from Mr Smythe said that in his experience corporations paying duty wanted their information to be treated confidentially. I have no reasons to doubt that evidence.
A consideration of the material before the Tribunal demonstrates that the collection of mortgage duty and marketable securities duty, up till the end of 2016, was reliant on self-reporting, either by the submission of instruments for an assessment of duty payable or by use of the EDR system. On the evidence before me there clearly was a culture of compliance. There is no evidence before me of the Agency holding out to any of its "users' or to members of the public assurances of confidentiality, using that word or similar, with respect to the information provided when seeking an assessment or using the EDR process. It did however make it clear that information would only be released in accordance with law.
There is a public reference to the secrecy provision in s 81 of the Taxation Administration Act on the Agency's website, but with respect to information," gathered during an investigation." There is no suggestion that information disclosed to the Agency when seeking a duty assessment or using EDR is gathered as part of an investigation. Provisions relating to investigations are found in separate Part of the Taxation Administration Act.
Internally, the Agency has in place mechanism to ensure the confidentiality of information it holds, and the maintenance of that confidentiality and of client privacy by agency staff. The Agency's Code of Conduct instructed that confidential information could only be disclosed with approval and "because you are authorised to do so by legislation." The annual undertaking signed by staff envisaged authorised disclosures of confidential information, in accordance with a non-existent list. The fact that taxation information was to be treated as confidential was much clearer in the Agency's internal documents, than in those accessible by the public.
It follows from all of the above that the material concerning how the Agency went about collecting the identity information, and what it told users and the public concerning release of that information, was entirely consistent with the secrecy provisions of the Tax Administration Act. While the word "confidential" or similar was not used in the Agency's communications with users and the public, whereas it was internally, the use of that word is not necessary for communications to be confidential: see for example Martin v Commissioner of Police [2005] NSWADT 23 at [43-47] a case under the Freedom of Information Act 1997 (NSW) concerning confidential information.
In my view, the weight of the evidence points to the identity information being confidential information supplied to the Agency in the course of duty collection. The secrecy provision of the Tax Administration Act makes it clear that identity information of a taxpayer is to be treated as confidential and not disclosed save in very limited circumstances. The manner in which the Agency manages the information it holds internally is consistent with this, as are its assurance to users and the public that information will not be disclosed other than in accordance with the law.
I also accept that it is reasonably likely that supply of confidential identity information from taxpayers to the Agency will be prejudiced if the identity information is released to Mr Mookhey. This is so because, irrespective of the move to transparency by the Commonwealth in its treatment taxpayer corporations, the payment of duties in NSW is still subject to secrecy provisions. Additionally, I have accepted the evidence of Mr Smythe that the maintenance of such confidentiality is important to corporate taxpayers.
I find that the potential prejudice to the supply to the Agency of confidential information that facilitates the effective exercise of its functions is a public interest consideration against disclosure. It is a public interest deserving considerable weight as it goes to the maintenance of and confidence in the collection of State revenue.

Section 1- cl 1(f) prejudice the effective exercise by an agency of the agency's functions

The Agency is charged with the collection of State Revenue, among other things.
I have already indicated that I accept that release of identity information relating to which corporations paid the most mortgage or marketable securities duty in the two years leading to their abolition, is reasonably likely to have a chilling effect on the willingness of companies to reveal their identity information to the Agency. It is on the cards that a further consequence might be that the effective exercise of the Agency's taxation function might be adversely affected, due to mistrust from users and the desire to keep their tax affairs secret.
Release of the information might therefore be reasonably expected to prejudice the effective exercise by the Agency of its functions. This is a public interest consideration against disclosure which deserves considerable weight as it goes to the maintenance of and confidence in the system for the collection of State revenue.

Section 14 - cl 1(f) - found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence

It follows that I am also satisfied that release of the identity information could reasonably expected to result in disclosure of information provided to the agency in confidence, namely the identities of the top 100 corporation paying mortgage and marketable securities duty in the two years in issue. I am satisfied that the corporations concerned provided that information to the Agency in confidence as part of the duty collection process.
In my view this is a public interest consideration against disclosure deserving of some weight as it goes to the maintenance of and confidence in the system for the collection of State revenue.

Section 14 - cl 4(d) - prejudice any person's legitimate business, commercial, professional or financial interests,

The Agency submits that it is reasonably likely that release all the information sought by Mr Mookhey would, "given the level of interest in the general public in the level of taxation paid by corporations" result in real-world consequences for them. Reference was then made to the statement of Lockhart J in Consolidated Press Holdings Ltd v FCT (1995) 128 ALR 443, at 446 that: …it is not conducive to the confidence of taxpayers if highly sensitive and important information about their finances may be referred to persons or bodies outside the ATO, in particular chartered accountant who may act for competitors …
In his evidence Mr Smythe said that it might be possible to tell from the information in issue how highly geared a company is. I thought this highly speculative given that both duties have now been abolished, that there are only the final two years data available, and the very nature of the duties concerned, when compared with income taxation.
Mr Mookhey submitted that the only real-world consequences would be the public knowing that named corporations have paid their due in terms of the two, abolished state duties concerned.
I am not persuaded that this public interest consideration against disclosure is made out.

Balancing the public interests

I have identified that following public interests in favour of disclosure. 1. the general public interest in favour of disclosure under s 12(1); 2. the public interest in corporations complying with their tax obligations; and 3. the public interest in Agency's accountability for ensuring corporate compliance with those obligations.
I consider that the first carries significant weight, and that the latter two carry less, but nonetheless real, weight.
I have identified the following public interest consideration against disclosure. That release could reasonably be expected to: 1. contravene the secrecy provisions of the Taxation Administration Act; 2. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions; 3. prejudice the effective exercise by an agency of the agency's functions; and, 4. result in the disclosure of information provided to an agency in confidence.
For reasons I have already indicated, each of these carries significant weight.
In my view the public interest consideration against disclosure of the identity information outweigh the public interest considerations in favour of disclosure.

Conclusion 1. As a consequence, the decision of the Agency to refuse Mr Mookhey access to the identity information is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2018

Freedom of Information Act 1989(NSW)

Freedom of Information Act 1997(NSW)

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