Court Decisions
Public interest immunity: see 264 notice
26.02.2009
Pagone J (Victorian Supreme Court) has held that the Commissioner could not rely on sec 109 of the Constitution to require production of documents pursuant to a sec 264 ITAA 1936 notice where the documents attract public interest immunity (Law Institute of Victoria Ltd v DFCT [2009] VSC 55).
A Deputy Commissioner of Taxation gave to the Law Institute of Victoria a notice under sec 264 ITAA 1936 which required the Institute to produce certain records relating to a solicitor. The Institute sought a declaration that compliance with the notice would contravene sec 6.4.5 of the Legal Profession Act 2004 (Vic). The Commissioner argued that the ITAA 1936 (being a Commonwealth law) prevailed (by virtue of sec 109 of the Constitution) over the State law.
Pagone J held that the Commissioner’s reliance upon an inconsistency between Commonwealth and State laws was misconceived. The fundamental question posed in the case was whether the Commissioner, in reliance upon sec 264 ITAA 1936, could require production of documents if they attract public interest immunity. Any invalidation of sec 6.4.5 of the Legal Profession Act effected by the Constitution would (if relevant) not alter the nature of the documents sought, the basis and capacity by which the Institute came to hold them, the functions exercised by the Institute in connection with those documents and the balance between the competing public interests in maintaining confidentiality of the documents in the Institute’s possession (on the one hand) and in the Commissioner having access to them (on the other hand). Pagone J said that the Commissioner conceded (correctly) that the doctrine of public interest immunity applies to the operation of sec 264 ITAA 1936 by reason of the decision in Jacobsen v Rogers ((1995) 182 CLR 572).
Pagone J noted that the Commissioner had made no attempt to provide any information to the Court that might bear relevantly, admissibly and probatively upon whether the balance of interests would favour disclosure. The ordinary rules about the burden of proof may well require the Institute to establish the basis of its claim for the relief it seeks, but the Commissioner as a model litigant and proponent of part of the public interest to be balanced in the proceeding against that invoked by the Institute had an important role to play to assist the Court in reaching the correct answer. In the end it is for the Court to decide whether the immunity exists in respect of any document or class of documents. His Honour relisted the proceeding for the parties to make submissions about what further directions should be made for the Court to determine the issue by reference to the documents and any further materials which the parties may wish to adduce in evidence.
