Citibank Ltd v Commissioner of Taxation [1988] FCA 473 (Includes summary)

an,

FEDERAL COURT OF AUSTRALIA

CITIBANK LIMITED v COMMISSIONER OF TAXATION

No. G1020 of 1988

Summary of Reasons for Judgment of Lockhart J. 2 September 1988

I give the following summary of my reasons for judgment because, aS I recognise in the judgment, the search, "visit" or "raid", as it is variously described in the evidence, with which this case is concerned, was a significant exercise of the Commissioner of Taxation's powers under s. 263 of the

Income Tax Assessment Act 1936, provoked a strong reaction

from Citibank, and has attracted considerable public interest. This summary ought not to be understood, of course, to any way qualify or modify the findings and

conclusions expressed in my reasons for judgment.

This case concerns the scope of s. 263 of the Income Tax Assessment Act 1936, and arises from a search of the premises of Citibank Limited by some 37 officers of the Australian

Taxation Office which occurred on 15 June 1988 at 11.30 am.

Section 263 confers a wide right or power upon the Commissioner of Taxation and upon officers authorised to take

access under the section. On the one hand, I recognise that

the Commissioner is charged with important functions in the

administration of the Income Tax Assessment Act and _ the

collection of revenue. At the same time, it is a fundamental principle of the common law that Australians have rights and privacy which must be respected. In my view, as s. 263 of the Act in its nature is an encroachment upon liberty, it should be construed so that the encroachment is no greater than the statute allows, expressly or by necessary

implication.

The person - whether the Commissioner of Taxation or his delegate - called upon to authorise the exercise of s. 263 powers must consider the relevant circumstances and decide whether it is appropriate in the circumstances to authorise the exercise of the power. The written authorisation under s. 263 must show on its face the premises to be searched and the books, documents and other papers or classes thereof which are the subject of the search, although in some circumstances a general description of the documents or class of documents will be appropriate, and the practical application of these requirements will vary from instance to instance. In the present case, none of the authorities make reference to the particular building, documents or classes of documents to which access is sought, and in my opinion all the authorities are bad for want of specificity and