FEDERAL COURT OF AUSTRALIA Parker v Antoine [2009] FCA 929 ADMINISTRATIVE LAW – judicial review – application brought pursuant to Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to review conduct of respondent – objection to competency of application – whether conduct for the purpose of making a decision to which the ADJR Act applies – meaning of 'decision' under ADJR Act – whether substantive determination – whether applicant has standing to bring application Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 3(d), 5, 6, 8 Income Tax Assessment Act 1936 (Cth) s 264 Taxation Administration Act 1953 (Cth) s 353-10 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317 Electricity Supply Assn of Australia Ltd v Australian Competition & Consumer Commission (2001) 113 FCR 230 Evans v Friemann (1981) 35 ALR 428 Griffith University v Tang (2005) 221 CLR 99 Guss v Federal Commissioner of Taxation (2006) 152 FCR 88 Hutchins v Commissioner of Taxationn (1996) 65 FCR 269 Khatri v Price (1999) 95 FCR 287 Mirvac Homes (NSW) Pty Limited v Airservices Australia (No 1) [2004] FCA 109 R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 Salerno v National Crime Authority (1997) 75 FCR 133 Social Services, Director-General of v Chaney (1980) 31 ALR 571 ANDREW STEPHEN PARKER v GEORGE ANTOINE WAD 78 of 2008 MCKERRACHER J 25 August 2009 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 78 of 2008 BETWEEN: ANDREW STEPHEN PARKER Applicant AND: GEORGE ANTOINE Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 25 August 2009 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The respondent's objection to competency be upheld. 2. The claim be dismissed. 3. The applicant is to pay the costs of the respondent to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 78 of 2008 BETWEEN: ANDREW STEPHEN PARKER Applicant AND: GEORGE ANTOINE Respondent JUDGE: MCKERRACHER J DATE: 25 August 2009 PLACE: PERTH REASONS FOR JUDGMENT INTRODUCTION 1 The applicant seeks review of the respondent's conduct under s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The conduct in question is that of the respondent, an employee of the Australian Taxation Office (ATO). 2 The applicant has issued four other sets of proceedings against individual officers of the ATO. The events with which each proceeding is concerned are related. The reasoning on determination of each proceeding is also similar. 3 The respondent objects to the competency of the application on the basis that the action the subject of the application was not conduct for the purpose of making a decision under an enactment to which the ADJR Act applies. Alternatively, if there was any 'decision', the respondent contends it was a decision excluded by Sch 1 of the ADJR Act. GROUNDS OF REVIEW 4 The grounds upon which the applicant seeks review are numerous and reflect those appearing under s 6 of the ADJR Act. They are as follows: (a) that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct; (b) that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed; (c) that an error of law has been, is being, or is likely to be, committed in the course of the conduct; (d) that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision; (e) that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made; (f) that there is no evidence or other material to justify the making of the proposed decision; (g) that the making of the proposed decision would be otherwise contrary to law. BACKGROUND 5 The applicant is the director, public officer and shareholder of the company Ivyside Pty Ltd (Ivyside). Ivyside claimed GST input tax credits with respect to various purchases in relation to the company. On 22 May 2007, Mr Michael Parker (the respondent to matters WAD79 of 2008 and WAD81 of 2008) advised the applicant that the claims at 'label G11' on his activity statement for the period July to September 2006 would be disallowed because valid tax invoices were not produced to substantiate the amount of GST credits claimed. The ATO subsequently issued the applicant notices pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) and s 353-10 of the Taxation Administration Act 1953 (Cth) (TAA). On or around 3 October 2007, the ATO issued the applicant an amended assessment and penalties for the July to September quarter of 2006. COMPLAINT 6 By his application, the applicant has sought review of the conduct of the respondent in allegedly 'placing pressure to bear on the applicant's physician to attempt to have the applicant's physician release to George Antoine the applicant's private, confidential and medically sensitive medical files and history'. He claims that the respondent is acting oppressively towards him, is acting in breach of the taxpayer's charter, is abusing his power, and is acting in breach of ATO's receivables policy. He also complains that the conduct is a breach of the Privacy Amendment (Private Sector) Act 2000. 7 The conduct complained of is the respondent's alleged attempt to illegally obtain sensitive and confidential medical documents about the applicant's mental health from his medical practitioner. The applicant argues that this is a contravention of the 'Privacy Act 2000'. 8 The applicant also complains that for a period of 9 years between 1990 and 1999 the Commissioner of Taxation (the Commissioner) caused distress to him and his wife by failing to meet the requirements of the ATO Taxpayer's Charter. 9 The applicant relied upon a written apology from the Commissioner dated 23 August 1999. That communication thanks the applicant for taking the time to contact the 'Problem Resolution Service' about legal action being taken against the applicant and his wife. It continues: I am satisfied that the ATO failed to meet this requirement and I sincerely apologise for the distress and inconvenience this has caused you and your wife. Details relating to specific ATO officers have been referred to their manager for appropriate action. In addition, I have recommended the ATO procedures that brought about the legal action in your case be reviewed to ensure this type of problem does not occur again in the future. 10 The applicant complains that had the respondent acted pursuant to the Taxpayers' Charter towards him and in accordance with the assurance given in the Commissioner's written apology that he would not be aggrieved by the oppressive actions of the respondent continuing to act in breach of the Charter and abusing his power. APPROACH TO COMPETENCY CHALLENGE 11 The Court has jurisdiction to determine that it has no jurisdiction in respect of a proceeding instituted in the Court and to dismiss the proceeding accordingly (Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at [14]). As observed in Mirvac Homes (NSW) Pty Limited v Airservices Australia (No 1) [2004] FCA 109 by Branson J, the provision in the Federal Court Rules for the filing and service of a notice of objection to competency is intended to encourage a respondent to inform the applicant promptly that the jurisdiction of the Court is in issue. The filing of a notice of objection to competency also places the Court on notice that its jurisdiction to make the orders sought by the applicant in the proceeding is challenged. The Court must then decide, before it makes the orders sought by the applicant or any substantive orders, whether it has jurisdiction to proceed (R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190). 12 In Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317, Finkelstein J at [239] expressed the view that, where an issue which is properly characterised as jurisdictional is raised, it should be dealt with at the outset although a different approach was taken in Khatri v Price (1999) 95 FCR 287 per Katz J at [14]). 13 Whether or not it is necessary to resolve the jurisdictional issue at the outset, it appears to me that the current jurisdictional argument is succinct and independent in the sense that it can be resolved without any other evidentiary enquiry. If the argument is correct, there seems no obvious reason in this case why consideration of the jurisdictional challenge should be further deferred. Deferral has not been sought by the applicant. (As distinct from raising opposition to the objection). STATUTORY FRAMEWORK 14 Section 6 of the ADJR Act relevantly provides as follows: 6 Applications for review of conduct related to making of decisions (1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the conduct on any one or more of the following grounds: (a) that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct; (b) that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed; (c) that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision; (d) that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision; (e) that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made; (f) that an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision; (g) that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct; (h) that there is no evidence or other material to justify the making of the proposed decision; (i) that the making of the proposed decision would be otherwise contrary to law. … 15 Relevantly, s 3 of the ADJR Act identifies the decisions to which the Act applies as a 'decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition)': (a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or (b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment; other than: (c) a decision by the Governor-General; or (d) a decision included in any of the classes of decisions set out in Schedule 1. 16 By s 3(d) the definition of 'decision to which this Act applies' is narrowed by the exclusion of decisions included in any of the class of decisions set out in Sch 1. Schedule 1 of the ADJR Act relevantly provides: Schedule 1—Classes of decisions that are not decisions to which this Act applies … (e) decisions making, or forming part of the process of making, or leading up to the making of, assessments or calculations of tax, charge or duty, or decisions disallowing objections to assessments or calculations of tax, charge or duty, or decisions amending, or refusing to amend, assessments or calculations of tax, charge or duty, under any of the following Acts: A New Tax System (Goods and Services Tax) Act 1999 A New Tax System (Luxury Car Tax) Act 1999 A New Tax System (Wine Equalisation Tax) Act 1999 Customs Act 1901 Customs Tariff Act 1995 Excise Act 1901 Fringe Benefits Tax Assessment Act 1986 Fuel Tax Act 2006 Income Tax Assessment Act 1936 Income Tax Assessment Act 1997 Petroleum Resource Rent Tax Assessment Act 1987 Superannuation Guarantee (Administration) Act 1992 Taxation Administration Act 1953, but only so far as the decisions are made under Part 3-10 in Schedule 1 to that Act Training Guarantee (Administration) Act 1990 Trust Recoupment Tax Assessment Act 1985; … Note: Subdivision B deals with the making, reduction and revocation of estimates of certain liabilities. (f) decisions of the Commissioner of Taxation under subsection 3E(1), 3G(1) or 3H(1) of the Taxation Administration Act 1953; (g) decisions under Part IV of the Taxation Administration Act 1953; (ga) decisions under section 14ZY of the Taxation Administration Act 1953 disallowing objections to assessments or calculations of tax, charge or duty; … 17 There are several relevant taxation provisions which arise in the context of the various concerns raised by the applicant at different times. They include the following: Income Tax Assessment Act 1936 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. (2) The Commissioner may require the information or evidence to be given on oath or affirmation and either verbally or in writing, and for that purpose he or the officers so authorized by him may administer an oath or affirmation. (3) The regulations may prescribe scales of expenses to be allowed to persons required under this section to attend. Taxation Administration Act 1953 Division 353—Powers to obtain information and evidence 353-10 Commissioner's power (1) The Commissioner may by notice in writing require you to do all or any of the following: (a) to give the Commissioner any information that the Commissioner requires for the purpose of: (i) the application of an *indirect tax law in relation to you or any other entity; or (ii) the administration or operation of this Schedule (other than Division 340); (b) to attend and give evidence before the Commissioner, or an individual authorised by the Commissioner, for the purpose of: (i) the application of an indirect tax law in relation to you or any other entity; or (ii) the administration or operation of this Schedule (other than Division 340); (c) to produce to the Commissioner any documents in your custody or under your control for the purpose of: (i) the application of an indirect tax law in relation to you or any other entity; or (ii) the administration or operation of this Schedule. Note: Failing to comply with a direction can be an offence against section 8C. (2) The Commissioner may require the information or evidence: (a) to be given on oath or affirmation; and (b) to be given orally or in writing. For that purpose, the Commissioner or the officer may administer an oath or affirmation. (3) The regulations may prescribe scales of expenses to be allowed to entities required to attend before the Commissioner or the officer. CONTENTIONS The Respondent 18 The respondent contends that the decision complained of by the applicant was not conduct for the purpose of making a decision under an enactment to which the ADJR Act applies. The conduct complained of did not constitute a reviewable decision as it was not a substantive determination. 19 Further, the respondent argues that even if a decision was made by the respondent in relation to seeking further information, it formed part of the process leading up to the making of the decision by the Commissioner to disallow GST input credits claimed by Ivyside and would be excluded pursuant to Sch 1(e) of the ADJR Act. The Applicant 20 The applicant asserts that the Court does have jurisdiction to hear the matter. He contends that the respondent's actions constitute conduct for the purpose of making a decision under an enactment to which s 6 of the ADJR Act applies. RELEVANT PRINCIPLES 21 Pursuant to s 8 of the ADJR Act, the Court has jurisdiction to hear and determine applications made under the ADJR Act. Section 5 of the ADJR Act provides that a person aggrieved by a decision to which the Act applies may apply to the Court for an order of review on certain grounds. Section 6 of the ADJR Act provides for review of conduct, engaged in, being engaged in or proposed to be engaged in for the purpose of making a decision to which the ADJR Act applies. 22 It is apparent from the definition of 'decision to which this Act applies' in s 3 of the ADJR Act that the Act only applies where there is a making of, proposal to make or requirement to make a decision, the decision is of an administrative character, and the decision is made under an enactment. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (at 335), Mason CJ discussed the meaning of 'decision' under s 3 of the ADJR Act and held (relevantly) (citations omitted): (1) Meaning of "Decision" The definition in s.3(1) does not elucidate significantly the meaning of the word "decision" as it is used in the A.D.(J.R.) Act. It is clear that a "decision to which this Act applies" must be a decision of an administrative character, that it may be made in the exercise of a discretion, and that it must be made under an enactment. But these characteristics provide little guidance as to the meaning of the word "decision" upon which the definition in s.3(1) is based. … Nonetheless other considerations point to the word having a relatively limited field of operation. First, the reference in the definition in s.3(1) to "a decision of an administrative character made ... under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s.3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J., "a determination effectively resolving an actual substantive issue". Thirdly, s.3(3), in extending the concept of "decision" to include "the making of a report or recommendation before a decision is made in the exercise of a power", to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that "decision" comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s.3(5) suggests that acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision". The relevant policy considerations are competing. On the one hand, the purposes of the A.D.(J.R.) Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of "decision" is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen C.J. and Lockhart J. appeared to emphasize the first of these considerations in Australian National University v. Burns, there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret "decision" in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process. … Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s.3(2)(g), the instances of decision mentioned in s.3(2) are all substantive in character. Moreover, the provisions in sub-ss.(1), (2), (3) and (5) of s.3 point to a substantive determination. In this context the reference in s.3(2)(g) to "doing or refusing to do any other act or thing" (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. I do not perceive in s.16(1)(b) or in par.(e) of Sched.1 or par.(a) of Sched.2 to the A.D.(J.R.) Act any contrary implication. These exclusions from the A.D.(J.R.) Act or from s.13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them. (emphasis added) 23 Despite the clarity of the passage from the learned Chief Justice, application of the principles has not been without difficulty. Views on whether or not particular decisions or conduct constitutes a reviewable decision have not always been unanimous (for example, Guss v Federal Commissioner of Taxation (2006) 152 FCR 88). 24 Not only are there questions as to whether conduct constitutes a decision but also whether it is a decision taken under an enactment. For a decision to be reviewable it must be one 'for which provision is made by or under a statute', the provision should be more specific than general (for example, Hutchins v Commissioner of Taxationn (1996) 65 FCR 269 and Electricity Supply Assn of Australia Ltd v Australian Competition & Consumer Commission (2001) 113 FCR 230). A general authorisation for a body to act in a certain way is not usually regarded as being sufficient to qualify a decision as being one made under an enactment: Salerno v National Crime Authority (1997) 75 FCR 133. 25 Dealing with the enactment aspect, the majority of the High Court in Griffith University v Tang (2005) 221 CLR 99 held (at [89]) that: The determination of whether a decision is "made … under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice. 26 Indeed the High Court went on to observe that even though a decision taken may have a critical effect for the operation of the federal statute, if it is a decision made 'dehors' the federal statute, it would be un-reviewable. CONSIDERATION 27 In the present circumstances, although the conduct of which complaint is made was carried out pursuant to statutory power, it does not constitute, in my view, conduct for the purpose of making a decision in the sense contemplated in s 3 of the ADJR Act or as explained by the Chief Justice in Bond 170 CLR 321. 28 In the language of Fox ACJ in Evans v Friemann (1981) 35 ALR 428 at 431 the relevant decision or conduct did not constitute a decision which was final and conclusive for immediate purposes at least. It was not the ultimate or operative determination of an issue as distinct from the determination of issues arising in the course of making such an ultimate decision (Social Services, Director-General of v Chaney (1980) 31 ALR 571). 29 The best guidance for this is the clear language of Mason CJ in Bond 170 CLR 321 that the decision will generally but not always entail a decision which is final or operative and determinative, at least in a practical sense and a conclusion reached that is a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision unless the statute provided for the making of a finding or ruling on that point so that the decision, though an indeterminate decision, might accurately be described as a decision under an enactment. CONCLUSION 30 The alleged conduct of which complaint is raised, is the unlawful placing of pressure to bear on the applicant's physician to obtain private medical information. 31 In my view, the alleged actions or conduct of which complaint has been raised by the applicant did not constitute a decision of a reviewable nature within the meaning of the ADJR Act and the authorities. There was no substantive determination. There was no decision having the character or quality of finality. It was not a decision which affected in any way or in any direct sense the applicant's legal rights and obligations. 32 Further and as a distinct ground, even if there were an appropriate basis for review, it could be advanced only by the company, Ivyside not by the applicant. However, if this were the only issue standing in the way of the competency of this application, I may have granted any application to amend the identity of the applicant, or for that matter, the respondent. The difficulty with the competency of the application however, in my view, is much more fundamental, going to jurisdiction. 33 The respondent's jurisdictional objection to competency must be upheld and the claim dismissed. The applicant is to pay the costs of the respondent to be taxed if not agreed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 25 August 2009 The Applicant represented himself. Counsel for the Respondent: TP Burrows Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25 March 2009 Date of Last Written Submissions: 6 May 2009 Date of Judgment: 25 August 2009