Authorities
43 If such an entitlement disclosure condition exists, its implication arises from s 522, and so its content necessarily turns on a consideration of that provision. Nonetheless, given the content of Mosaic's grounds of appeal and its reliance on particular authorities, it is appropriate to first consider those authorities.
44 A useful starting point is FCT v ANZ where the High Court was concerned with s 264(1) of the then Income Tax Assessment Act 1936 (Cth) (ITAA). Section 264(1) at that time was as follows:
264 Commissioner may require information and evidence
(1) The Commissioner may by notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority:
(a) to furnish him with such information as he may require; and
(b) to attend and give evidence before him or before any officer authorized by him in that behalf concerning his or any other person's income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.
45 Of s 264, Gibbs ACJ observed at 524:
The apparent intention of the Parliament is that the Commissioner is entitled to have produced any books and documents that relate to the taxpayer's income or assessment, even if he does not know what those books and documents may reveal. A document may be required to be produced only if it in fact relates to the income or assessment of the person in question, but if it is of that description, that is enough. In other words the Commissioner is entitled to make what was described as a "roving enquiry" into the income or assessment of a particular taxpayer and for that purpose to have produced such documents as relate to that income or assessment.
46 And as to the notices in that case, at 525-526:
The next question that arises is whether the notices given to the Bank were sufficient in form. To be valid a notice to produce documents under s. 264 (1) (b) must of necessity identify with sufficient clarity the documents which are required to be produced. However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, "your books of account") may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified. The power is confined to giving a requirement of a particular kind--a requirement to produce documents relating to the income or assessment of some person--and a notice requiring the production of documents not so related is beyond the scope of the power. Similar reasoning was applied, correctly in my opinion, by Burt C.J. in Snow v. Keating (W.A.) (52) where the notice required a taxpayer to give evidence but did not specify the person concerning whose income or assessment the evidence was sought.
47 Of s 264, Mason J observed at 534-535:
The power conferred upon the Commissioner by s. 264 to require a person to furnish information, to attend and give evidence and to require the production of books, documents and other papers enables him to obtain information and inspect documents when the "full and free access" given by s. 263, for whatever reason, is inadequate to enable him to inspect documentary records, though I can see no reason why the exercise of the power should be restricted to these circumstances. Section 264 makes no reference back to s. 263; nor does s. 264 condition the power which it confers upon an exercise of the right of access given by the earlier section, or an attempt to exercise that right. The later section should therefore be construed according to its terms. They are not to be cut down and distorted by the making of a vague and indefinite implication based on the existence of the earlier provision. The fact is that ss. 263 and 264 serve two different purposes. Section 263 is a general provision giving the Commissioner a right of access. It makes lawful that which otherwise would be unlawful, e.g. entry upon premises, the examination of a document. The succeeding section arms the Commissioner with inquisitorial and coercive powers. However, this difference supplies no reason for departing from the language of s. 264 which is expressed in the widest terms.
Except in one respect the powers given by s. 264 should be circumscribed only by reference to the limitations which are expressed in that section. Thus, in s. 264 (1) (b) the power to compel evidence is restricted to evidence "concerning his or any other person's income or assessment" and the power to require production is confined to documentary records "relating thereto", that is, to "his or any other person's income or assessment". However, the power to require information contained in par. (1) (a) is not similarly limited. As it is a power given to the Commissioner for the purpose of enabling him to perform his functions under the Act it must be circumscribed by reference to this purpose.
48 Mason J continued at 536:
And, for a similar reason there is nothing in the suggestion that an issue or dispute of fact must first arise between a taxpayer and the Commissioner before the Commissioner can invoke s. 264. There is simply no basis for the implication of such a limitation. The strong reasons which inhibit the use of curial processes for the purposes of a "fishing expedition" have no application to the administrative process of assessing a taxpayer to income tax. It is the function of the Commissioner to ascertain the taxpayer's taxable income. To ascertain this he may need to make wide-ranging inquires, and to make them long before any issue of fact arises between him and the taxpayer. Such an issue will in general, if not always, only arise after the process of assessment has been completed. It is to the process of investigation before assessment that s. 264 is principally, if not exclusively, directed.
49 This reasoning has been applied in a number of cases involving s 155 of the TPA, for example, in Pyneboard.
50 Section 155(1) was relevantly in the following terms:
155 Power to obtain information, documents and evidence
(1) Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, or is relevant to the making of a decision by the Commission under subsection 93 (3), a member of the Commission may, by notice in writing served on that person, require that person:
(a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;
(b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or
(c) to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.
51 Section 155(5) was in the following terms:
(5) A person shall not:
(a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it;
(b) in purported compliance with such a notice, knowingly furnish information or give evidence that is false or misleading; or
(c) obstruct or hinder an authorized officer acting in pursuance of subsection (2).
52 In Pyneboard, this Court concluded at 570-572 (footnotes omitted):
The requirement that a notice under s. 155 (1) show the person to whom it is addressed that the Commissioner is entitled to require that he furnish the information or produce the documents which the notice specifies will not be satisfied unless it appears from the notice that the information or documents sought are information or documents "relating" to one or more "matters" of a kind described in the subsection. …
If, on examination of the terms of the notices, it does not appear that the information or documents sought by a particular requirement are information or documents relating to one or other of the above "matters", the requirement will, at least to the extent to which it would require the furnishing of such information or the production of such documents, be beyond the power conferred by s. 155 (1) of the Act. In this regard however, it should be stressed that the question whether a notice discloses the necessary relatedness between documents or information sought and the identified "matters" is, like the question whether the terms of the notice are sufficiently clear, not to be approached in an over-technical or hypercritical way. As was pointed out in Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (No.3) (14) the power conferred by s. 155 (1) is an investigative power which authorizes questions both wide in scope and unspecific in subject matter. The fact that the recipient of the notice is or will, in the event, be unable to supply relevant information or disclose relevant documents will not, in itself, preclude the validity of a requirement in a s. 155 notice. The relevant question is whether the information or documents sought are capable, in a broad investigative context, of being properly regarded as related to any one of the "matters" which the notice identifies.
53 In SA Brewing, again in the context of s 155, this Court at 369-372 applied Pyneboard. The Court went on to explain at 370 that:
As with the requirement that the notice be clear in its terms, this will not support an over-technical or hypercritical approach to its construction: Pyneboard Pty Ltd v Trade Practices Commission (supra) at 376. And it is fundamental, that given the investigative nature of the power under consideration, there is no requirement that the notice "plead" all the facts necessary to constitute a contravention or possible contravention. The words "may constitute" enable a court to judge from the material in the notice whether, if other facts which may or may not have occurred come to light, the whole body of facts would constitute a contravention: Davenport v Trade Practices Commission (1983) 70 FLR 123 at 130-131 (Northrop J). In doing so however, it is not necessary for the Court to determine whether a contravention has occurred or will occur, nor will it idly speculate or draw on improbable circumstances to uphold the validity of a notice (at 132).
54 The Court considered the basis of the entitlement disclosure condition. It observed at 370 that in respect to FCT v ANZ, the condition as expressed by Gibbs ACJ in the passage recited above is based on the language of s 264 of the then ITAA. The Court observed at 371 that a statutory basis for the condition in s 155 of the TPA was propounded by Davies J in Bannerman v Mildura Fruit Juices Pty Ltd (1982) 2 FCR 581 (Bannerman v Mildura Fruit) at 588-590:
Section 155 of the Trade Practices Act 1974 (Cth) must be given effect in like manner. Not only does the section provide a penalty for breach of the obligation imposed upon the recipient of the notice, but s 155(1) in terms does not empower the Chairman to require the recipient of the notice to provide any information whatever or any document whatever but only 'such information' and 'such documents', that is to say, information and documents 'relating to a matter that constitutes, or may constitute, a contravention of this Act'.
55 The Court in SA Brewing continued at 371:
That approach was not addressed in the joint judgment of Bowen CJ and Neaves J. Their Honours simply reaffirmed the condition and pointed out that the identification of the matter provides for the recipient of the notice a point of reference by which to judge whether it validly requires the specified information to be furnished or the specified documents to be produced. Agreeing, as we do with their Honours' view of the utility and desirability of the requirement, it finds its roots and ultimate justification in a proper construction of s 155(1) as enunciated by Davies J. And on that basis it emerges as an aspect of the statutory power able to be discerned in the words of the statute.
56 Significantly, in a passage extracted by the primary judge at [79] and above at [28], the Court in SA Brewing at 371 concluded that:
Neither the constructional nor policy supports for the entitlement disclosure condition requires that a notice plead a contravention or suspected contravention. It is fundamental that the proper progress of legitimate investigation be not disrupted by what may amount to demurrer or strike out motions on the terms of the notice. Where, however, the "matter" referred to in the notice is incapable, after allowing for undiscovered facts, of amounting to a contravention, then the issue of the notice is not a valid exercise of power.
57 Finally, the Court concluded at 372:
The entitlement disclosure condition is an emanation of the statutory language empowering the Chairman only to serve a notice requiring the furnishing of such information, the production of such documents or the giving of such evidence as relates to a matter which constitutes or may constitute a contravention.
58 In Commissioner of Taxation v Pilnara Pty Ltd [1999] FCA 1805; 96 FCR 82 (Pilnara), this Court considered s 264A of the then ITAA at [34]-[40]:
[34] The task at hand is, of course, to construe s 264A. The section does not contain an express requirement that any notice issued under it must contain an entitlement disclosure condition. The question is whether such a condition should be implied.
[35] In our view, and with due respect to the primary judge, no such condition should be implied into s 264A.
[36] We think that there are relevant distinctions between s 264A of the Income Tax Assessment Act and s 155 of the Trade Practices Act.
[37] First, s 155 is concerned with a "matter" involving a contravention of the Trade Practices Act. There are many contraventions which might arise under that Act. That fact necessitates the implication of an entitlement disclosure condition in any notice issued under s 155. But s 264A of the Income Tax Assessment Act is only concerned with information and documents "relevant to the assessment of a taxpayer".
[38] Secondly, the basis upon which the condition was implied in Pyneboard is absent in the present context. The implication in Pyneboard was expressed as being based on the circumstances that refusal or failure to comply with a notice issued under s 155 was punishable by imprisonment or fine (see p 374).
[39] We acknowledge that the evidentiary exclusion in s 264A(lO) may, on occasion, be a very serious matter. Accordingly we would not distinguish the s 155 cases solely on this basis.
[40] There is, perhaps (as Mr A Robertson SC, senior counsel for the appellant pointed out), some irony in the fact that the Full Court in Pyneboard relied upon the decision of the High Court of Australia in Commissioner of Taxation (Cth) v Australia & New Zealand Banking Group Ltd, a case which related to notices issued under s 264 of the Income Tax Assessment Act. It is clear from the statements of Gibbs ACJ at 525 and 528 and Mason J at 537 and 535 in that case, that it is sufficient for the purposes of a notice issued under s 264 that the notice refer to a person's income or assessment to show that the notice is within the power conferred by that section. See also Jacobs J at 541-542 and Murphy J at 547. We see no relevant distinction between the provisions of s 264 and s 264A on the question of the entitlement disclosure condition. In our view, the approach taken in Australia & New Zealand Banking Group Ltd should be applied to the present matter. Accordingly we hold that it is sufficient, for the purposes of s 264A, simply to identify the taxation assessment of a party served with a notice under that section.
59 Mosaic also referred to authorities as examples of implying entitlement conditions, in relation to s 712 of the FW Act, s 86(1A)(c) of the Workplace Relations Act 1996 (Cth) (repealed), s 193 of the Protection of the Environment Operations Act 1997 (NSW) and s 9 of the Occupational Health and Safety Act 2004 (Vic): see, for example, Construction, Forestry, Mining and Energy Union v Alfred [2016] FCA 591; 242 FCR 35; Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Inspector Lam [2018] FCA 1379; Fair Work Ombudsman v United Petroleum Pty Ltd [2020] FCA 590; 85 Degrees Coffee Australia Pty Ltd v Rodwell [2020] FCA 1190; 299 IR 280; Thorson v Pine [2004] FCA 805; Thorson v Pine [2004] FCA 1316; 139 FCR 527.
60 It is also plain that there are authorities which have not found such a condition, in other statutory contexts: see, for example, Pilnara, examining s 264A of the then ITAA; James v Chief Commissioner of State Revenue (No 2) [2011] NSWSC 654; 81 NSWLR 267, examining s 72 of the Taxation Administration Act 1996 (NSW); AB Pty Ltd v Australian Crime Commission [2009] FCA 119; 175 FCR 296, examining s 29 of the Australian Crime Commission Act 2002 (Cth); and West Tamar Council v Leonard [2012] TASSC 68; 21 Tas R 412, examining s 47(1)(c) of the Integrity Commission Act 2009 (Tas).
61 Pausing there. The authorities make it clear that whether such a condition is implied into a notice provision, and if so, the necessary content of the notice, turns on the particular statutory scheme under consideration. It is plain that the issue at hand is not resolved by simply transposing the reasoning from one statutory scheme into another. There is, as the ACMA correctly submitted, no universal rule as to implying a condition into a notice provision. Rather, attention must be directed to the particular statutory scheme in issue.