Alcoa of Australia Ltd v FC of T (FOI)

Tribunal:
Administrative Appeals Tribunal, Melbourne

MEDIA NEUTRAL CITATION: [2024] AATA 423

Decision date: 9 February 2024

Britten-Jones (Deputy President)

1. The applicant ( Alcoa ) is seeking access to certain documents held by the Australian Taxation Office ( ATO ). Some documents have been provided in full and in part but there remains a significant number of documents which the respondent is refusing access to on the basis that the documents are exempt pursuant to the Freedom of Information Act 1982 (Cth) ( FOI Act ).

2. The documents in issue relate to matters considered in a Statement of Audit Position ( the SOAP ) issued by the ATO to the applicant on 18 December 2019. The SOAP outlined the ATO's position in respect of the application of the former Division 13 of the Income Tax Assessment Act 1936 ( the ITA Act ) to the supply of alumina by the applicant to Bahrain for the years 1989 to 2009. The SOAP arose from an audit commenced by the respondent on 20 December 2016 which considered the arrangements entered into by Alcoa for the supply of alumina to Bahrain.

3. The respondent called evidence from Yen-Lin Faith Harako, Assistant Commissioner from the ATO, who explained in her affidavit sworn 25 March 2022 ( the First Harako affidavit ) about the relevant transfer pricing legislation in the ITA Act:

12. Former Division 13 of Pt Ill of the ITA Act (ss 136AA to 136AF) contained Australia's domestic law dealing with cross-border transfer pricing (transfer pricing). It was an anti-avoidance division aimed at countering non-arm's length transfer pricing in order to protect the Australian revenue.

13. Transfer pricing refers to the prices charged when, as part of a cross-border transaction, an entity supplies or acquires products or services from another entity and those entities are not dealing at arm's length. The prices charged will impact the level of profits of each entity, and therefore the amount of tax they have to pay, in the respective countries.

14. The arm's length principle embodied in Division 13 was modelled on concepts about what independent parties dealing at arm's length might reasonably be expected to have done, in the taxpayer's circumstances.

15. Section 136AD, in Division 13 of Pt Ill of the ITA Act, provided that where a taxpayer had supplied or acquired property under an international agreement, and the Commissioner having regard to the connection between the parties to the agreement was satisfied that the parties were not dealing at arm's length with each other in relation to the supply or acquisition, the Commissioner could determine that the provisions of subsections 136AD(1), (2) and (3) applied so that the consideration was deemed to be the arm's length consideration for the purposes of the ITA Act.

16. Subsection 136AD(1) covered the case of the actual consideration received by a taxpayer being less than the arm's length consideration for the supply; subsection 136AD(2) covered the case where the taxpayer received no consideration for the supply; and subsection 136AD(3) covered the case where the actual

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consideration given by the taxpayer for an acquisition was greater than the arm's length consideration.

17. Further, subsection 136AD(4) of the ITA Act provided that where for any reason the Commissioner was unable to ascertain the arm's length consideration, the arm's length consideration should be deemed to be the amount that the Commissioner determined.

4. The SOAP contained findings that:

(a) The respondent was satisfied that Alcoa was not dealing at arm's length and that the consideration received by Alcoa was less than the arm's length consideration in respect of the supplies under s 136AD(1) of the ITA Act (as deemed by s 136AD(4)).
(b) The respondent's view that Alcoa received less than arm's length consideration for the alumina supplied was based upon a comparison of the consideration actually received for the alumina supplied and the consideration that would have been received under certain supply agreements.
(c) The respondent applied Division 13 to substitute an arm's length price for the consideration received for the supply by asking what consideration might reasonably be expected to have been given if the agreements for the supply of alumina had been entered into between independent parties dealing with each other at arm's length.
(d) The respondent proposed adjustments to the tax payable by Alcoa which resulted in a total tax shortfall of $214,109,234.

5. Alcoa disputes the findings in the SOAP. Alcoa denies that there is any tax owed and has brought separate applications in the Tribunal which have yet to be heard.

6. The specific provisions of the FOI Act relied upon to refuse access are ss 42, 38, 47 and 47F.

Procedural background and subsequent events

7. Alcoa made a request for access to documents under s 15 of the FOI Act on 3 April 2020. That request was revised on 15 June 2020 and relates to any documents created, obtained, modified or otherwise held by the ATO in respect of matters considered in the SOAP that:

(a) were created, obtained or modified by the ATO's Tax Counsel Network ( TCN ) on or after 14 December 2018;
(b) are (or contain) a communication with any expert (being a person with specialised knowledge relevant to matters considered in the SOAP) not ordinarily employed by the ATO;
(c) are a communication sent by officers in the ATO's Economist Practice ( EP ) between 19 November 2019 and 18 December 2019 (inclusive); and
(d) are one of the 10 key work-in-progress drafts of the SOAP and the EP Report identified by the ATO.

8. On 16 July 2020, an authorised officer of the ATO decided to refuse access to certain documents falling within the scope of the request. There was an internal review of that decision and on 9 October 2020 there was a varied decision ( the internal review decision ) that maintained exemptions over a number of documents. The Information Commissioner decided not to undertake a review of the internal review decision. Alcoa applied to the Tribunal for review on 3 September 2021. The decision was subsequently altered by orders made under s 26(1)(b) of the Administrative Appeals Tribunal Act 1975 ( AAT Act ) between April 2022 and 21 June 2023 which resulted in the release of further documents or parts of documents to the applicant.

9. A schedule of documents in dispute was first prepared on 25 March 2022 by the ATO and annexed to the First Harako affidavit. A revised schedule of documents in dispute was prepared and included as Annexure 13 to the further affidavit of Yen-Lin Faith Harako sworn 6 September 2022 ( the Second Harako affidavit ). The final iteration of the documents in dispute is exhibit 9 dated 20 June 2023 which is a revised version of Annexure 13.

10. A complete list of all documents, which includes those released and those to which access has been refused in full or in part, is exhibit 8 dated 20 June 2023. There are 1028 documents in this list. An earlier iteration of exhibit 8 was Annexure 11 to the Second Harako affidavit.

11. On 2 September 2022 Achilleas Nicholas A Shizas, Assistant Commissioner and General

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Counsel of the ATO, swore an affidavit describing the searches undertaken by the ATO to identify and locate documents within the scope of Alcoa's request. There remains an unresolved issue with respect to the responsiveness to the request. The respondent has marked as 'irrelevant' in exhibit 8 those documents it considers fall outside the scope of the request. Further, the respondent has provided a separate schedule entitled Documents Outside the Scope of the Request. This schedule is to be read in conjunction with paragraphs 14 and 15 of the Second Harako affidavit in which Ms Harako explains that certain documents previously considered within scope are not in fact within the scope of Alcoa's request. Alcoa accepts this explanation in part ^[1] See Applicant’s Amended Statement of Facts, Issues and Contentions dated 2 December 2022 at [19] to [21] and [78] ( ASFIC ). but requests the Tribunal to determine the issue in relation to those documents still pressed by Alcoa.

12. Ms Harako gave oral evidence to the Tribunal and was cross examined. All the evidence was dealt with on an open basis. The only closed session held, during which the applicant and its representatives were excluded from the hearing, was for the purpose of the respondent making submissions by reference to the documents in issue.

STATUTORY FRAMEWORK

Freedom of Information Act 1982

13. The High Court considered the legislative framework of the FOI Act in
Kline v Official Secretary to the Governor-General:^[2] [2013] HCA 52 ; (2013) 249 CLR 645 , 661 at [37] .

…The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.

14. The general objects of the FOI Act are set out in s 3 as follows:

(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
- (a) requiring agencies to publish the information; and
- (b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:
- (a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
- (b) increasing scrutiny, discussion, comment and review of the Government's activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

15. To promote the objects in s 3(1)(b), s 11(1) provides that:

Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

16. Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the FOI Act 'subject to this section'.

17. Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document.

18. The term 'exempt document' is defined in s 4(1) to include: 'a document that is

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exempt for the purposes of Part IV (exempt documents) (see section 31B)'. Section 31B provides that:

A document is exempt for the purposes of this Part if:

(a) it is an exempt document under Division 2; or

(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).

19. If a document is exempt, the agency is not required to provide the document.

THE CLAIM FOR EXEMPTION UNDER SECTION 42 - LEGAL PROFESSIONAL PRIVILEGE

Section 42 and Case Law on legal professional privilege

20. The ATO has withheld certain documents as exempt due to a claim of legal professional privilege. Section 42 provides:

Documents subject to legal professional privilege

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.

(3) A document is not an exempt document under subsection (1) by reason only that:

(a) the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and

(b) the information is operational information of an agency.

21. A document will be exempt from disclosure pursuant to s 42 if it would be privileged from production in legal proceedings on the ground of legal professional privilege. There is no definition of legal professional privilege in the FOI Act and therefore one turns to the common law concepts.

22. The principle of professional privilege to be applied in Australia was first stated by Barwick CJ in
Grant v Downs (1976) 135 CLR 674 at 677:

…a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.

23. The relevant principles were later articulated by Young J in
AWB Ltd v Cole (2006) 155 FCR 30 at [44]:

(1) The party claiming privilege carries the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice. The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation. It might also be discharged by reference to the nature of the documents, supported by argument or submissions.
(2) The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive. It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication.
(3) The existence of legal professional privilege is not established merely by the use of verbal formula. Nor is a claim of privilege established by mere assertion that privilege applies to particular communications or that

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communications are undertaken for the purpose of obtaining or giving "legal advice". If assertions of that kind are received in evidence in support of the privilege claim, their conclusionary nature can leave unclear what advice was really being sought. There will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed.
(4) Where communications take place between a client and his or her independent legal advisers, or between a client's in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications. In Kennedy v Wallace, Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.
(5) A "dominant purpose" is one that predominates over other purposes; it is the prevailing or paramount purpose.
(6) An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence.
(7) The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character.
(8) Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client.
(9) Subject to meeting the dominant purpose test, legal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client's legal adviser to enable him or her to advise. The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are themselves actually communicated to the lawyer.
(10) Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client…
(11) Legal professional privilege protects communications rather than documents, as the test for privilege is anchored to the purpose for which the document was brought into existence. Consequently, legal professional privilege can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test. In Propend at 512, Brennan CJ added a qualification to this principle: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the persons seeking to execute the warrant, and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the otherwise privileged copy loses its protection.
(12) The Court has power to examine documents over which legal professional privilege is claimed. Where there is a disputed claim, the High Court has said that the court should not be hesitant to exercise such a power…
(citations omitted)

24. As to when third party communications may be privileged, Lockhart J said in
Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246:

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Legal professional privilege extends to various classes of documents including the following:

(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them.

(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used.

(c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance.

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf.

(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence.

(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action.

(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.
(footnotes omitted)

25. In
Barnes v Commissioner of Taxation (2007) 242 ALR 601, the Full Court of the Federal Court noted that the relevant authorities emphasised the need for focused and specific evidence in order to ground a claim for legal professional privilege and considered that the evidence in that case was manifestly insufficient. However, after inspecting the documents themselves, they found that it could reasonably be inferred from the documents and on the face of some of the documents that they came into existence for the dominant purpose of legal advice.

26. It is apparent from the above authorities that to determine this question of legal professional privilege, it is necessary to consider the context and circumstances surrounding the creation of the documents. With that in mind, I turn to the background facts based upon the documentary evidence and the evidence of Ms Harako.

Background facts relevant to the privilege claim

27. Ms Harako deposed in her first affidavit with respect to the events of 2017 to 2019 as follows:

22. In November 2017, the ATO directly briefed external counsel (Brendan Sullivan SC and Daniel McInerney) to provide legal advice in relation to various issues associated with the Alcoa audit, in the expectation that the audit was likely to give rise to litigation between the ATO and Alcoa.

23. On 6 September 2018, the ATO issued a Position Paper in relation to the Alcoa audit (Annexure 3) which outlined the ATO's position on the application of the transfer pricing provisions to the arrangements for the sale of alumina to Alba and other entities during the relevant period.

24. On 27 September 2018, the ATO engaged the Australian Government Solicitor (AGS) to work with counsel and

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provide legal advice in relation to the issues arising in the audit. Legal advice was provided by a team of AGS lawyers including Matthew Walsh (Special Counsel, Tax Disputes), Anthony Cowan (Senior Lawyer) and Carla Kovacevic (Senior Lawyer).

25. To assist the AGS and counsel to provide their advice, AGS was briefed to engage an industry expert to advise in relation to issues relevant to the determination of the arm's length consideration that ought to have been paid for the supplies from Alcoa to Alba and other entities during the relevant years.

26. In November 2018, AGS was formally retained to represent the ATO in its dealings with Alcoa in the context of the audit, and in any proceedings arising out of or connected with the matters the subject of the audit.

27. On 14 December 2018 and 15 February 2019, Alcoa responded to the Position Paper, and provided with each response a number of agreements in relation to the sale of alumina during the relevant period which it claimed were relevant to the determination of whether the parties to the Alba supply arrangements were dealing with each other at arm's length.

28. On 5 April 2019, the ATO issued Alcoa with a notice pursuant to section 353-10 of Sch 1 to the Taxation Administration Act 1953 ( TA Act ) requiring Alcoa to produce further agreements for the purposes of assessing the comparability between the agreements entered into in connection with the supply of alumina to Alba and other entities, and agreements entered into with other customers during the relevant period. On 10 May 2019, Alcoa provided about 869 further documents in response to the notice.

29. In May 2019, AGS formally engaged an industry expert to provide a report to assist AGS and counsel in providing legal advice to the ATO in connection with the audit and for use in any litigation between Alcoa and the ATO arising out of the subject of the audit.

30. The audit team was not involved in the contract negotiation in relation to the engagement of the expert. However, I have been provided with a copy of the agreement between AGS which is annexed (with the identity of the expert and other privileged information redacted) as Annexure 4. Copies of the initial instructions provided by AGS to the expert are documents with AAT Schedule Nos 397-415 in the Revised Schedule of Documents (discussed further below),

31. In August 2019, Alcoa provided its comparability analysis based on its review of principal agreements for the supply of alumina to customers. In October 2019, Alcoa also provided to the ATO an advice from Mr Kenneth Hayne AC QC in relation to some of the issues arising out of the audit.

32. After considering all of the information provided by Alcoa, the ATO issued a SOAP in relation to the audit on 18 December 2019 (Annexure 5). The SOAP set out the ATO's views on the application of former Division 13 of Pt III of the ITA Act to the supplies to Alba and other entities. The SOAP included as Appendix C the document entitled 'Economist Report Alcoa of Australia Report on Alumina Pricing' prepared by the ATO's EP (Annexure 6).

33. Subsequently, on or about 21 January 2020, Alcoa requested an independent review of the SOAP, however I do not understand the scope of Alcoa's FOI request to include access to documents in relation to the independent review.

28. The events of 2019 deposed to by Ms Harako provide the immediate context for the documents over which privilege is claimed.

29. Ms Harako deposes at paragraph 22 of her first affidavit that external counsel was briefed in November 2017 'to provide legal advice in relation to various issues associated with the Alcoa audit, in the expectation that the audit was likely to give rise to litigation between the ATO and Alcoa'. The ATO Position Paper issued on 6 September 2018 proposed an adjustment to the tax payable by Alcoa in the sum of $598,903,276. Ms Harako deposes at paragraph 24 that on 27 September 2018 the ATO engaged the Australian Government Solicitor to work with counsel and to provide advice. On 14 December 2018, Clayton Utz, Alcoa's lawyers,

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provided a response to the Position Paper asserting the position that no adjustments could be made under Division 13 of Part 3 of the ITA Act. Under cross examination, Ms Harako said that having received Alcoa's response, the process was then to consider it 'with a view to issuing a statement of audit position if the facts and circumstances in the application of the law leads to that outcome.'^[3] Transcript p 94.

30. I note that as early as November 2017, Ms Harako was of the view that counsel needed to be briefed because litigation with Alcoa was anticipated. Leaving aside whether litigation was reasonably anticipated at that stage, the evidence supports a finding that at least from December 2018, when Clayton Utz responded to the ATO Position Paper, litigation was reasonably anticipated. By that stage, Alcoa had engaged lawyers and had clearly rejected the ATO's claims that an adjustment to the tax payable by Alcoa was required. Also by that stage, the ATO had been seeking advice from counsel and had engaged the Australian Government Solicitor to advise on issues for the anticipated litigation. By reference to these objective criteria and not just the subjective views of Ms Harako, I am satisfied that litigation was reasonably anticipated by at least December 2018 which is prior to the date range relevant to the documents in issue.

31. There is a file note ^[4] Document 755. of a discussion with counsel in February 2019. Ms Harako further deposes at paragraph 29 that in May 2019 AGS engaged an industry expert to assist AGS and counsel to provide legal advice. In May 2019, Alcoa provided the ATO with a significant number of documents relating to their supply agreements. In August 2019, Alcoa provided its comparability analysis based on their principal supply agreements. In October 2019, Alcoa provided to the ATO an advice from Kenneth Hayne AC QC.

32. During the period September 2018 to December 2019, ATO staff from the Public Groups and International (PG&I) business line were involved in the Alcoa audit. This audit team was led by Mariem Osmani and reported to Ms Harako.

33. The audit team was assisted by the Tax Counsel Network which provided legal input. Tax counsel Eddie Koit was specifically allocated to assist with the Alcoa audit from about December 2018.

34. The audit team was also assisted by the Economist Practice about which Ms Harako deposed as follows in her first affidavit:

[38] Substantial consultation also occurred with members of the EP, which is the central area within the ATO responsible for the provision of economic advice relating to tax laws, including in particular transfer pricing. EP operates as a separate practice area in the ATO, providing independent, accredited economic advice used by audit teams to assist with forming views on economic issues. EP members who were consulted as part of the audit were Giuseppe Lunghitano, Steven Stepanian, Paul Wilson and Clare Millen.

35. Ms Harako deposed at paragraph 39 of her first affidavit that in her experience it is usual practice to utilise the technical knowledge and experience of ATO officers within the EP and the TCN to inform instructions given to an external legal services provider.

36. It is apparent from the evidence that there were various drafts of the EP report leading up to its final version included as an appendix to the SOAP dated 18 December 2019. The earliest draft appears to have been dated 9 November 2019, but the evidence showed that the EP was assisting the audit team as at August 2019. Ms Harako said under cross examination that the EP was instrumental in providing input to the advice that counsel was asked to provide throughout the course of the audit.^[5] Transcript p 138. It is apparent from the date and description of the documents ^[6] Documents 64, 79, 744, 745, 755, 775, 795, 796, 843, 885 and 889. in issue that this advice from counsel was being provided in written form or as a file note in the relevant period from December 2018.

Applicant Contentions as to Privilege

37. The documents that remain in dispute according to the applicant's Amended Statement of Facts, Issues and Contentions dated 2 December 2022 are principally in relation to:

(a) the respondent's communications with Mark Bodner, an expert who prepared a report (including drafts) dated 15 June 2020 ( the Bodner Report );

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(b) the respondent's communications with unnamed experts in connection with the audit of Alcoa; and
(c) the preparation of the EP Report.

38. The applicant contends that the respondent has failed to satisfy the onus under s 61(1)(b) of the FOI Act of establishing the dominant purpose of each communication. With respect to the engagement of an industry expert, the applicant contends that the dominant purpose of the relevant communications was for the respondent to obtain factual information relating to the determinations and assessments relating to the audit, which are administrative tasks.

39. The applicant contends that any legal professional privilege has been waived.

Findings as to Privilege

Documents in relation to industry expert - paragraph 29 to 45 of the Second Harako Affidavit

40. The background to the briefing of an industry expert was that AGS had been engaged by the ATO to work with counsel and provide advice in relation to the Alcoa audit. In May 2019, AGS engaged Mr Bodner as an industry expert to assist with that advice. On 1 August 2019, the AGS wrote to Mr Bodner requesting expert advice in a written report concerning the pricing of Alcoa's alumina sales.^[7] Exhibit 14. AGS requested that the report comply with the Federal Court Harmonised Expert Witness Code of Conduct and that it address the question of arm's length consideration as defined in the ITA Act. AGS issued a further request to Mr Bodner in similar terms on 30 October 2019.^[8] Exhibit 10 tab 37. Mr Bodner communicated with the AGS in relation to the preparation of his report. Responses to Mr Bodner were prepared by AGS in accordance with the ATO's instructions. Mr Bodner provided his report to the AGS on 15 June 2020. The ATO decided to waive privilege in the final version of the Bodner Report and the instructions relating to it.

41. The communications for which privilege is claimed are set out in paragraph 43.1 of the respondent's Amended Statement of Facts, Issues and Contentions dated 6 September 2022. They relate to:

(a) the identification and engagement of an industry expert;
(b) drafts of the expert report; and
(c) finalisation of the expert report.

42. The applicant contends that the AGS were acting as a mere conduit for the ATO and that the communications with the expert were being 'routed' through the AGS so as to attract privilege. The applicant contends that the dominant purpose of these communications was for the respondent to obtain factual information relating to the determinations and assessments relating to the audit, which it says are administrative tasks. I do not accept this contention and note what Young J in
AWB Ltd v Cole (2006) 155 FCR 30 said at [44], namely that:

(7) The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial…

43. In this case, the ATO had engaged the AGS and counsel to provide advice and to assist with legal questions arising under the transfer pricing legislation in the former Division 13 of Part 3 of the ITA Act. The AGS then sought expert assistance with respect to those legal questions. The advice was not purely commercial. It was being provided in the legal context of addressing the complex question of arm's length consideration as defined in the ITA Act. That context is apparent from the terms of the 30 October 2019 letter of instruction from the AGS to the expert. The AGS was seeking assistance from the expert so that it could provide advice to the ATO in relation to the audit and with respect to the SOAP. The complexity of the legal issues is reflected in the fact that counsel was being asked to and did provide written opinions in the 12 month period from December 2018. This is a case where the lawyer and not the client is seeking the expert opinion so that it can properly address the legal issue.^[9] cf Pratt Holdings v Commissioner of Taxation (2004) 136 FCR 357 , 368–369 . The dominant purpose of the communications was to enable the AGS and counsel to give legal advice. In that context, the communications between the AGS and the expert are privileged together with any other documents, such as internal ATO

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emails, that disclose those communications. Further, any internal ATO emails generated for the dominant purpose of getting advice from the AGS would be privileged. These internal communications would fall within the class of documents referred to by Lockhart J in
Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246:

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client…of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf.

44. With respect to the identification and engagement of an industry expert and the documents relating thereto in paragraphs 32 to 37 of the Second Harako affidavit,^[10] Paragraph 33 of the Second Harako affidavit includes a reference to document 486, although I note that the schedule (exhibit 9) refers only to a s 38 claim over document 486. I find that all of these communications take place within the legal context of the complex issues arising from the transfer pricing legislation for which it was appropriate to engage expert assistance. Included in these communications are internal ATO emails generated for the dominant purpose of providing instructions to the AGS so that they can provide advice about engaging and dealing with an expert. There are communications between the ATO and the expert as well as communications between the AGS and the expert. I have considered the claim for privilege made with respect to the documents referred to in paragraphs 32 to 37 of the Second Harako affidavit and I conclude that the dominant purpose of these communications was to obtain or give legal advice. The documents would be privileged from production in legal proceedings on the ground of legal professional privilege.

45. With respect to the drafts of the expert report and the documents relating thereto in paragraphs 38 to 43 in the Second Harako affidavit, these communications also took place within the legal context of the transfer pricing legislation for which it was appropriate to engage expert assistance. There were communications relating to conferences held between AGS, counsel, the ATO and Mr Bodner. Following those initial conferences, draft reports were provided to the AGS. These draft reports were commented upon by the ATO and were the subject of further conferences and communications. These communications (including attachments) and the draft reports were generated for the dominant purpose of enabling the AGS to give legal advice. I have considered the claim for privilege made with respect to the documents referred to in paragraphs 38 to 43 in the Second Harako affidavit and I conclude that the dominant purpose of these communications was to obtain or give legal advice. Subject to a finding of waiver, the documents would be privileged from production in legal proceedings on the ground of legal professional privilege.

46. The issue of whether drafts may be privileged despite disclosure of a final document was considered by Dawson J in
Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 496 to 497:

… The reason why the draft may be privileged before the document is completed was early explained in
Walsham v Stainton [(1863) 71 ER 357], upon the basis that, although after a pleading has been filed it becomes publici juris, the drafts 'might disclose the precise character of confidential communications with the solicitor, by showing the alterations made from time to time'. In the same way a letter to the other side in litigation which is drafted in a solicitor's office may be privileged before it is sent because it may reveal confidential communications between the solicitor and his client. Once it is sent, however, it ceases to be confidential and there is no privilege in it, not because privilege in the document is waived, but because no privilege attaches to it.

47. The draft Bodner reports were often attached to privileged communications and so would themselves attract privilege. Further, the drafts on their own would be privileged because the various iterations of the report would reveal the privileged communication as the advice could be inferred from an analysis of the passages in the drafts compared to the final version.

48. The fact that the Bodner Report was not ultimately attached to the SOAP does not mean that the communications were not privileged.

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That does not change the nature of the communications.

Emails between ATO and AGS - paragraphs 46 to 48 of Second Affidavit of Harako

49. The respondent provides a description of this category of documents in paragraph 43.2 of its Amended Statement of Facts Issues and Contentions dated 6 September 2022.

50. The documents referred to by Ms Harako at paragraph 47 of her second affidavit are emails including attachments dated between 22 August 2019 and 17 December 2019. Included within the attachments are drafts of the SOAP ^[11] For example, documents 16, 18, 20, 22 and 346. and drafts of the expert report.^[12] For example, documents 23 and 347. The emails are confidential communications between the ATO and the AGS and relate to advice received from counsel about the draft SOAP and the expert report. There are also internal ATO emails ^[13] For example, documents 72 and 75. which forward on emails between the ATO and AGS. It is apparent from the emails and their attachments that the advice being received was reflected in the various iterations of the draft SOAP and draft expert report. An example of the advice being received from counsel was the written opinion dated 11 October 2019.^[14] Document 64. The application of the transfer pricing legislation to Alcoa and the determination by the respondent as to whether Alcoa's dealings were at arm's length involved complex questions of both law and fact and would be informed by the opinion of an expert. At the time of these emails the SOAP was being drafted which involved consideration of these issues. The advice being sought in relation to the audit was not only of a commercial nature. Ms Harako said under cross examination, and I accept, that in transfer pricing matters there are legal as well as economic issues and that experts are important.^[15] Transcript p 115. The professional advice being sought and obtained was in relation to the drafting of the SOAP and the expert report in the legal context of the transfer pricing legislation. I have reviewed the documents referred to in paragraph 47 of the Second Harako affidavit and I find that the dominant purpose of the documents was the obtaining or giving of legal advice related to the drafting of the SOAP. The documents would be privileged from production in legal proceedings on the ground of legal professional privilege.

51. The documents referred to by Ms Harako at paragraph 48 of her second affidavit are emails including attachments dated between January 2019 and March 2020. I have reviewed these documents. The emails and their attachments are confidential communications sent internally between ATO staff working on the Alcoa audit. They comprise forwarded emails and attachments which are themselves confidential communications between the ATO and the AGS. Many of the forwarded emails are those that were referred to in the above paragraph and by Ms Harako at paragraph 47 of her second affidavit. Included within the attachments are drafts of the SOAP,^[16] For example, documents 10, 56, 68. drafts of the expert report,^[17] For example, documents 57. opinions from counsel ^[18] Documents 79, 744, 745, 775, 795, 796, 843, 885 and 889. and AGS instructions to counsel.^[19] Documents 92 and 742. Ms Harako was cross examined about document 804 which is an internal email from Eddie Koit of the Tax Counsel Network to Mariem Osmani (ATO) dated 2 May 2019 which includes a train of earlier emails. Part of document 804 has been released but there is a claim for privilege over part of the emails that disclose advice from counsel. Included in these documents is the email dated 11 October 2019 from the AGS to the ATO attaching a written memorandum of advice described as an opinion from counsel.^[20] Documents 63 and 64. It is apparent from the description of document 794 which is an email dated 7 January 2019 that written advice from counsel ^[21] Documents 795 and 796. had been provided as early as the date of that email. It is not in dispute that a written memorandum of advice from counsel would be privileged. The documents referred to by Ms Harako at paragraph 48 of her second affidavit record or contain privileged communications. The documents would be privileged from production in legal proceedings on the ground of legal professional privilege.

Internal ATO Emails - paragraphs 49 to 50 of Second Affidavit of Harako

52. The respondent provides a description of this category of documents in paragraph 43.3 of its Amended Statement of Facts Issues and Contentions dated 6 September 2022.

53. Ms Harako deposes at paragraph 49 of her second affidavit that in order to provide instructions to and obtain legal advice from AGS and counsel in relation to the audit, members of the audit team (including herself) communicated with each other, the Economist

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Practice and the Tax Counsel Network about the scope of the legal advice sought and the matters/instructions to be put to AGS for the purpose of obtaining legal advice. The documents referred to by Ms Harako at paragraph 50 of her second affidavit are emails including attachments dated between 1 March 2019 and 4 March 2020. I have reviewed these documents and I am satisfied that they are internal confidential communications between ATO officers for the purpose of providing instructions to or obtaining legal advice from AGS and counsel in relation to the audit. The communications often disclose legal advice already obtained from AGS and/or counsel. Document 819 is an internal ATO email dated 4 March 2020 which has been partially redacted because it contains a reference to advice from AGS regarding the independent review of the SOAP. These internal emails are privileged because they come within the class of documents referred to by Lockhart J in
Trade Practices Commission v Sterling (1979) 36 FLR 244 as follows:

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client…of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf.

ATO Documents including DC Case Status Reports, draft Economist Practice Reports and draft SOAPs - paragraphs 51 to 53 of Second Affidavit of Harako

54. The respondent provides a description of this category of documents in paragraph 43.4 of its Amended Statement of Facts Issues and Contentions dated 6 September 2022.

55. Ms Harako deposes at paragraph 51 of her second affidavit that throughout the audit there were communications and documents produced by the ATO that recorded the substance of legal advice provided to the ATO by AGS or counsel. These documents include internal ATO emails, DC Case status reports, drafts of the Economist Practice Reports and drafts of the SOAP.

56. Young J in
AWB Ltd v Cole (2006) 152 FCR 382 at [127] said that as an adjunct to the first limb of privilege, protection against disclosure has been extended to documents that record confidential legal advice or confidential legal work. The documents may have been prepared by the lawyer or its client. The reason why such material is protected is because the disclosure of it will, or will tend to, reveal the privileged communication. Young J articulated the test by saying at [132] that the question is whether the disclosure of the document in question will directly reveal, or allow its reader to infer, the actual content or substance of a privileged communication. As to the inference required to satisfy this test, Young J said at [133]:

There is, of course, a difference between explicit disclosure and disclosure by inference. Inferences are rarely certain. In my opinion, what Gummow J and Anderson J each had in mind was that the document in question would support an inference of fact as to the content or substance of a privileged communication; but the inference of fact must have a definite and reasonable foundation in the contents of the document. It would not be sufficient that the document as a whole, or particular statements within it, cause a reader to wonder or speculate whether legal advice had been obtained and what was the substance of that advice. I do not think that this is the kind of tendency that Anderson J had in mind in Dalleagles when his Honour said that the true basis for extending privilege to this class of documents was not so much that they were themselves advice or communications, but because they will, if disclosed, reveal or tend to reveal, the content of privileged communications.

57. The internal ATO emails referred to in paragraph 52.1 of the second Harako affidavit are dated between 26 February 2019 and 20 February 2020. Most of these have been released in part (except documents 755, 799, 892 and 964 which are claimed to be exempt in full). The attachments which are documents 755 and 892 comprise advice from counsel. I have reviewed the documents referred to in paragraph 52.1 of the second Harako affidavit and find that the documents have only been redacted or exempted in so far as they contain a reference to legal advice. The disclosure of the

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redactions would reveal or tend to reveal the privileged communication. I have previously found that advice from counsel and AGS was being provided throughout 2019 in relation to the Alcoa audit. It is that advice which would be revealed either directly or through inference if these documents were disclosed.

58. I have reviewed the internal ATO 'DC Case status reports' referred to in paragraph 52.2 of the second Harako affidavit. These reports were prepared periodically for the purpose of callovers conducted by the Deputy Commissioner in relation to the Alcoa audit. These reports contain numerous references to advice from or engagement with counsel with varying degrees of information provided in a summary form. I find that the reports have been redacted in so far as they record the giving of and the substance of legal advice provided to the ATO by AGS or counsel. The redactions would be privileged from production in legal proceedings on the ground of legal professional privilege.

59. I have reviewed the drafts of the Economist Practice Report referred to in paragraph 52.3 of the second Harako affidavit. These are standalone drafts which were not attached to privileged communications. They have been partially released to Alcoa. The Economist Practice is the part of the ATO which has specialist knowledge of economics. The Economist Practice prepared a report ( the EP Report ) which was attached as Appendix C to the SOAP dated 18 December 2019.^[22] First Harako affidavit at [32] and annexure 6. That report provided advice relevant to the Alcoa audit in relation to comparable transactions between unrelated parties dealing with each other at arm's length. It was the comparability analysis which was contained in the EP Report and which was relied upon by the respondent. Legal advice was sought as part of the process of drafting the EP report. The drafts are dated 12 December to 18 December 2019 so they are confined to the week before the final version of the report which is dated 18 December 2019. The respondent contends that the EP Report and its drafts contain a record of the substance of legal advice provided to the ATO by AGS or counsel. That legal advice has been redacted and is contained in the body of the draft or as a comment recorded as an insert to the side of the body of the document. An example is document 29 which is a draft EP report dated 12 December 2019 which contains a redacted passage at page 6. I have read the redacted passage and I find that it records advice from legal counsel. There is another redacted passage at page 10 which is a comment to the side which I find discloses the view of counsel as an explanation for a change to the body of the document.

60. I have reviewed the drafts of the SOAP referred to in paragraph 52.4 of the second Harako affidavit. These drafts are dated 6 September, 14 October, 4 December and 16 December 2019. The evidence establishes that in the period leading up to 18 December 2019, counsel was reviewing drafts of the SOAP and providing advice with respect to its contents.

61. It may be thought that because the final version of the EP report and the SOAP have been disclosed that there is no confidentiality or privilege in the earlier drafts. The issue of whether drafts may be privileged despite disclosure of a final document was considered by Dawson J in discussed above referring to
Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 496 to 497.

62. In this case, the drafts of the EP report and the SOAP have been redacted so as not to disclose the passages that may reveal legal advice or legal workings. It is apparent from my reading of the redacted passages that they have been altered when compared to the final disclosed version. Those alterations themselves may reveal some confidential privileged communication.

63. I have read the redacted passages of the drafts of the EP report and the SOAP and conclude that they record advice from legal counsel or that the advice could be inferred from an analysis of the passages in the drafts compared to the final version. It follows that the documents referred to in paragraphs 52.3 and 52.4 of the Second Harako affidavit would be privileged from production in legal proceedings on the ground of legal professional privilege.

Has Privilege been Waived?

64. The applicant submits that privilege in some documents has been expressly waived. On 4 May 2022 the respondent advised in a letter from the AGS that it had decided to waive its claim for legal professional privilege over

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certain documents and that it would prepare a further revised schedule of exempt documents which would then form the basis for consent orders to be made to vary the decision under review. The applicant submits that the respondent expressly waived legal professional privilege over documents that were listed in a document (described by the applicant as the Waiver Schedule) provided to the applicant on 3 June 2022 and lodged with the Tribunal on 14 June 2022. However, not all of the documents in the Waiver Schedule were disclosed to the applicant. On 8 July 2022 the respondent advised that it proposed releasing to the applicant documents identified where the respondent has waived its claim for exemption under s 42 of the FOI Act.^[23] Exhibit 2. It was expressly stated by the respondent that those documents would be released upon a consent direction under s 26(1)(b) of the AAT Act being made. That consent direction was made by the Tribunal on 19 July 2022. It is my view that the waiver did not occur until the documents were released in accordance with the consent direction made on 19 July 2022. Prior to that date, the respondent had given indications about the extent of the proposed waiver but had made it clear that the waiver would be dealt with by way of orders to vary the decision under review. There is no unfairness to the applicant in those circumstances.

65. Nor do I consider that there is any unfairness from the selective waiver of privilege in relation to the documents in the consent direction dated 19 July 2022.

66. With respect to the draft Bodner reports, the applicant submits first, that the substance had been disclosed and second, that having produced the final version of the report, privilege over the drafts should be treated as having been impliedly waived.

67. The High Court in
Mann v Carnell [1999] HCA 66 at [29] said that disputes as to implied waiver usually arise from the need to decide whether the particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. The judgment of that conduct is to be made in the context and circumstances of the case and in light of any considerations of fairness arising from that context or those circumstances.^[24] Osland v Secretary, Department of Justice (2008) 234 CLR 275 at 297 . If the gist or conclusion of the legal advice is disclosed then there is a waiver in respect of the whole of the advice.^[25] Bennett v Chief Executive Officer of Australian Customs Service [2004] FCAFC 237 at [6] and [65] .

68. The argument as to disclosure of the substance of the report focuses on documents disclosed by the respondent that state that the expert had indicated that the arm's length consideration was in a range between 11% and 14% of 'the LME aluminium price'. The applicant says, and I accept, that this was the answer to the sole question which Mr Bodner was asked to address in his report.^[26] See AGS Letter of Instruction to Mr Bodner dated 30 October 2019 at Exhibit 10 tab 37. The respondent disclosed to Alcoa an internal ATO email dated 12 December 2019 from the Economist Practice ^[27] Document 359 and Exhibit 10 at tab 27. stating that 'we are aware that an Industry Expert has indicated an appropriate pricing range is 11%-14% of LME for sales of alumina for the period 1993-2009'. Mr Bodner's final report ^[28] Exhibit 10 tab 37. was not finalised until 15 June 2020 but it contains a similar pricing range at paragraph 10.

69. The applicant contends that it was a draft of the Bodner report that was being referred to in the 12 December 2019 email, which is an inference I am prepared to make because it is plainly apparent from the evidence. It is apparent from the Second Harako affidavit and the description of the documents in issue,^[29] Exhibit 9. that Mr Bodner provided the AGS with numerous draft reports between 26 November and 20 December 2019 which were then forwarded to the ATO.

70. In addition to the email on 12 December 2019 there is a draft of the EP Report on the same day which contains two side comments referring to the '11-14% range' in 'the Independent Expert report'. The two comments contained in the draft EP report (document 731) were not redacted despite being redacted in all other versions of the draft EP reports disclosed to Alcoa and its lawyers. The respondent contends that this was an inadvertent disclosure and that there was no intention to waive privilege over the draft Bodner reports. However, I note that the comments were put to Ms Harako under cross examination and she raised no issue at the time about the disclosure.^[30] Transcript pp 159-160. Ms Harako accepted in cross examination that the reference in the comments to an expert report was a reference to Mr Bodner's report.^[31] Transcript p 159 lines 31 and 32 and lines 43 to 45. It was not until re-examination that Ms Harako said that she maintained privilege over the information in the

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comments and that she was surprised that the comments had not been redacted.^[32] Transcript p 210.

71. In my view the respondent's conduct of disclosing the 12 December 2019 email and disclosing the comments in the draft EP Report of the same date together with the answers under cross examination amount to conduct that is inconsistent with the maintenance of confidentiality over the conclusion in the draft Bodner reports. In my view fairness dictates in these circumstances that the privilege over the draft Bodner reports has been waived. A further circumstance of relevance, although not determinative of the issue, is that privilege has been waived over the final version of the Bodner report dated 15 June 2020. The effect of the stated conclusion in that final report is the same as that disclosed by the documents dated 12 December 2019.

72. It follows from my finding that the respondent has waived privilege over each draft of the Bodner expert report existing at around the time of the communication dated 12 December 2019. The waiver would extend to any other document over which the claim for privilege rests on the communication of matters set out in those draft Bodner reports. As a matter of fairness, the waiver would extend to any draft of the Bodner report provided between 26 November and 20 December 2019. These draft reports and associated documents are referred to in the Second Harako affidavit at paragraphs 38 to 43. Prior to determining that access should be given to the draft Bodner reports due to waiver, I will need to consider the additional claim that part of the drafts are exempt from disclosure under s 38 of the FOI Act. For example, document 149 is a draft expert report dated 17 December 2019 over which, in addition to a full exemption claim under s 42, there is a part exemption claim over certain identified passages under s 38.

THE CLAIM FOR EXEMPTION UNDER SECTION 38 - SECRECY PROVISIONS

Relevant principles

73. Section 38 of the FOI Act relevantly provides:

38 Documents to which secrecy provisions of enactments apply

(1) Subject to subsection (1A), a document is an exempt document if:

(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment or a Norfolk Island law; and

(b) either:

(i) that provision is specified in Schedule 3; or

(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that enactment or law or any other enactment or Norfolk Island law.

(1A) A person's right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment or law concerned or any other enactment or Norfolk Island law.

74. Schedule 3 of the FOI Act specifies s 355-25 of the TA Act.

75. The relevant secrecy provisions applying to information obtained by or for the purposes of taxation legislation are contained in sections 355-25, 355-155 and 355-265 of Schedule 1 to the TA Act. Section 355-25 of Schedule 1 to the TA Act provides:

355-25 Offence - disclosure of protected information by taxation officers

(1) An entity commits an offence if:

(a) the entity is or was a *taxation officer; and

(b) the entity:

(i) makes a record of information; or

(ii) discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection (2)) or to a court or tribunal; and

(c) the information is *protected information; and

(d) the information was acquired by the first-mentioned entity as a taxation officer.

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Penalty: Imprisonment for 2 years.

76. The term 'protected information' is defined in s 355-30(1) of Schedule 1 as follows:

Protected information means information that:

(a) was disclosed or obtained under or for the purposes of a law that was a

*taxation law (other than the Tax Agent Services Act 2009) when the information was disclosed or obtained; and

(b) relates to the affairs of an entity; and

(c) identifies, or is reasonably capable of being used to identify, the entity.

77. The objects of div 355 are expressed in s 355-10 in sub-div 355-A in the following way:

The objects of this Division are:

(a) to protect the confidentiality of taxpayers' affairs by imposing strict obligations on *taxation officers (and others who acquire protected tax information), and so encourage taxpayers to provide correct information to the Commissioner; and

(b) to facilitate efficient and effective government administration and law enforcement by allowing disclosures of protected tax information for specific, appropriate purposes.

78. In respect of the objects of Division 355, the Explanatory Memorandum to the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2010 (Cth) at [1.15] and [1.16] provides:

The primary objective of the new framework is to protect the confidentiality of taxpayer information. Compliance with taxation laws could be adversely affected if taxpayers thought that their information could be readily disclosed.

The new framework gives effect to this primary objective by placing a general prohibition on the disclosure of taxpayer information. However, in recognition of the importance that taxpayer information can play in facilitating efficient and effective government administration and law enforcement, disclosures of taxpayer information are permitted in certain specified circumstances. As a guide for future policy consideration, the disclosure of taxpayer information should be permitted only where the public benefit associated with the disclosure clearly outweighs the need for taxpayer privacy.

79. The issue for the Tribunal is whether information in any of the documents in issue is prohibited from disclosure under s 355-25 of Schedule 1 to the TA Act as 'protected information' within the meaning of s 355-30.

80. The FOI Guidelines provide that:

[5.119] Section 38 is intended to preserve the operation of specific secrecy provisions in other legislation, including in cases where no other exemption or conditional exemption is available under the FOI Act. The primary purpose of secrecy provisions in legislation is to prohibit unauthorised disclosure of client information. Most secrecy provisions allow disclosure in certain circumstances, such as with the applicant's consent where the information relates to them, or where it is in the course of an officer's duty or performance of duties, or exercise of powers or functions, to disclose the information.

[5.125] … s 355-25 of Schedule 1 to the Tax Administration Act 1953, makes it an offence for a taxation officer to record or disclose 'protected information'. 'Protected information' is information relating to and identifying an entity acquired for a taxation law purpose. The effect of this tax provision on a request for documents is to make a document containing the protected information of a person or entity other than the person making the request, an exempt document under s 38.

81. Paragraph (a) of the definition of 'protected information' is not limited to information disclosed or obtained under a taxation law but extends to information disclosed or obtained 'under or for the purposes of' a taxation law. In
Javorsky v Commissioner of Taxation (2005) 216 ALR 619 the broad scope of the provision was noted:

[50] … Many documents will be made or given, and information will be acquired, for the purposes of the Taxation Administration Act, which would not have been made or given

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or acquired under the Act. The expression "for the purposes of" substantially widens the scope of the provision.

82. The word 'affairs' in paragraph (b) of the definition of 'protected information' is 'of very wide import':
Johns v Connor (1992) 107 ALR 465 at 476, as is the connecting expression 'relating to'.^[33] Pearce, Statutory Interpretation in Australia (9 ^th edition, 2019), [12.7]-[12.9]. As a result, it has been said that the provision covers 'an extremely wide field of information'.^[34] Commissioner of Taxation v Swiss Aluminium Australia Ltd (1986) 10 FCR 321 at 325 . The explanatory memorandum for the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2010 (Cth) which introduced Division 355 of the TA Act confirms that the affairs of an entity include but are not limited to the entity's tax affairs. This broad definition ensures that a person's privacy is protected. As the Tribunal explained in
Re Mann and Federal Commissioner of Taxation (1987) 87 ATC 2010 at 2014 there is a:

…cardinal principle of Australian income tax law that the knowledge of a person's affairs gained by the ATO is sacrosanct, subject to carefully defined, albeit now ever extensive, statutory exceptions.

83. In
Hart and Deputy Commissioner of Taxation [2002] AATA 1190, the Tribunal said that this protection is entirely appropriate given the sensitivity of the information the Commissioner is empowered to collect and further that the taxation legislation rightly places great store in protecting privacy and that the FOI Act should be interpreted in that light, notwithstanding the general policy evident in the Act in favour of disclosure.

84. There is no doubt that the policy or object of the FOI Act is in favour of disclosure. However, the effect of s 38 is to exempt from disclosure certain documents the subject of secrecy provisions. Section 355-25 of Schedule 1 to the TA Act is a secrecy provision which is expressly specified under schedule 3 of the FOI Act. The effect of s 38 of the FOI Act and s 355-25 of Schedule 1 to the TA Act is to exempt from disclosure information in a document which is defined by s 355-30 as protected information acquired by a taxation officer. However, there is an exception provided for by s 355-45 which says that s 355-25 does not apply if the information is already available to the public. The phrase 'already available to the public' is not defined in the TA Act. However, the Explanatory Memorandum to the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2010 (Cth) at [4.35] states:

A publicly available source would include things such as the electoral roll, open court records, books, the Internet, newspapers and other material that is generally available to the public. The information does not cease to be 'publicly available' if a member of the public has to pay a fee to access that information.

85. In
Lee v Deputy Commissioner of Taxation [2023] FCAFC 22 the Full Court of the Federal Court considered the exception in s 355-170 which is in similar terms to s 355-45 and said:

[59] The better construction of s 355-170 is that it applies to information which is "available to the public" irrespective of whether it is already in the public domain. The appellants' construction contains an unstated assumption that "information…already available to the public" in s 355-170 does not cover information where there is a barrier to access or a condition which must be fulfilled before a member of the public can gain access to the available information.

[60] There are many examples of documents which are publicly available but which require some step or steps to be taken to gain access. The payment of a fee for access to documents on a public register provides an example. One would not ordinarily say that, because documents contained on a pubic (sic) register can only be accessed after payment of a fee, those documents are not "available to the public"; to the contrary, they are available to the public upon payment of a fee.

Documents exempt under section 38

86. There are 258 documents in the Updated Schedule of Documents in Issue ^[35] Exhibit 9. for which exemption is claimed in paragraphs 52 to 54 of the respondent's Amended Statement of Facts Issues and Contentions dated 6 September 2022 on the ground that they contain

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protected information which is prohibited from disclosure under s 355-25 of Schedule 1 to the TA Act. They comprise:

(a) communications with third party experts for the purposes of the audit, which disclose details of the business affairs of those experts including the commercial interactions of those experts with the ATO. The documents in issue in this category are set out in paragraph 23.1 of the Second Harako affidavit;
(b) information supplied by those experts to the ATO for the purposes of the audit, which discloses details of the business affairs of those experts including the nature of the information to which they have access. The documents in issue in this category are set out in paragraph 23.2 of the Second Harako affidavit;
(c) communications between third party experts and AGS in relation to the prospective engagement of those experts for the purposes of the audit, which disclose details of the business affairs of those experts including details of the nature of the business conducted by those experts and their previous experience. The documents in issue in this category are set out in paragraph 23.3 of the Second Harako affidavit; and
(d) information about the activities of third parties in the alumina industry obtained by the ATO which can reasonably be used to identify those third parties. The documents in issue in this category are set out in paragraph 23.4 of the Second Harako affidavit.

87. The applicant contends that the respondent has failed to establish that the information contained in the documents referred to above is 'protected information'. The applicant also contends that there is insufficient evidence to find that none of the exceptions in subdivision 355-B of Schedule 1 to the TA Act apply including the exception in s 355-45 for information that is already available to the public. The applicant says that, to the contrary, the evidence establishes that the information supplied by the experts to the ATO for the purposes of the audit was publicly available in the sense that it could be accessed upon payment of a fee.

88. The applicant disagrees with the approach of the respondent who appears to have redacted the name of an entity, including experts, who have supplied information to the ATO.^[36] See ASFIC at [67(b)]. One specific example is the redaction of two lines of the draft SOAP dated 17 December 2019 ^[37] Document 10 and exhibit 9. based on a claimed exemption from disclosure under s 38.

89. I pause to note that the draft SOAP dated 17 December 2019 ^[38] Document 10 and exhibit 9. is claimed to be fully exempt from disclosure under s 42 on the grounds of legal professional privilege. As stated above, the claimed exemption under s 38 relates to only two lines of that document. This is an example of a document which is subject to overlapping claims under s 42 and s 38. Indeed, I note that the vast majority of documents subject to a full or partial exemption claim under s 38 are also claimed to be fully exempt under s 42. Nevertheless, I will consider separately and rule upon the s 38 claims despite there being an overlapping claim under s 42.

90. Besides the general description of the documents by reference to the four categories deposed to in paragraph 23 of the Second Harako affidavit, the respondent adduced little to no evidence about the background circumstances relating to these documents. The explanation for that is that to do so would disclose the very information that the respondent says is exempt from disclosure. Under cross examination, Ms Harako found herself unable to answer certain questions without disclosing 'protected information.'^[39] Transcript p 95 line 26. She did her best to confine her evidence in a way that would not undermine the claimed exemptions. That approach by Ms Harako was understandable but it was complicated by the fact that much of the information in the documents claimed to be exempt documents was in fact publicly available. Alcoa was aware (from the contents of the ATO's position paper dated 6 September 2018) about CRU's involvement in providing market data to the ATO. Further, Alcoa was aware (from the documents disclosed to it under a previous FOI request) about CRU's dealings with the ATO in the period from November 2018 to April 2019, the details of which are set out

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in the Ernst & Young letter dated 9 May 2019 ^[40] Exhibit 10 tab 39 p 9. and the separate chronology of events document.^[41] Exhibit 10 tab 39 p 15. Despite the fact that the information in these documents was publicly available due to them having been disclosed under a FOI request, Ms Harako did not want to disclose their contents in evidence because these same documents were the subject of a claim to be exempt documents under s 38.^[42] See documents 477 and 474.

91. Ultimately, Ms Harako was able to give some limited evidence under cross examination and on re-examination which related to the documents over which there is a s 38 claim. In addition to her evidence there is relevant documentary evidence arising from the documents or parts of documents that have been disclosed by the respondent together with documents in the applicant's tender bundle which was exhibit 10. I find that the evidence before the Tribunal established that:

(a) In early 2018 the ATO had subscribed to an online commodities analysis and pricing tool offered by CRU Australia. The cost of the subscription was $6,300 for the period 1 March 2018 to 28 February 2019.^[43] Letter from Ernst & Young to the respondent dated 9 May 2019 (in the applicant’s tender bundle – exhibit 10).
(b) The ATO provided to the applicant its position paper dated 6 September 2018. This is annexed to the First Harako affidavit as Annexure 3. The ATO expressly relies upon 'pricing data that was obtained from CRU Group - an independent business analytics and intelligence firm'. Within the position paper there is a reference to Australian FOB Alumina and Brazilian FOB Alumina benchmark data which was obtained from the CRU Group. The pricing data from CRU is compared in 'Table 2: Price of alumina' to the price received by Alcoa. The Appendix C to the position paper describes CRU as an independent business intelligence analytics firm that conducts commodities research and consultancy activities. The appendix explains how CRU compiles market data and provides it to 'all of the world's bauxite, alumina and aluminium companies'. Under cross examination, Ms Harako agreed that the ATO's position paper was based upon the 'CRU index'.
(c) On 19 October 2018, Steven Stepanian from the Economist Practice Group at the ATO wrote to Justin Hughes at the CRU Group seeking further specific details with respect to the data provided.^[44] Exhibit 10 tab 39. In 20 March 2019, Mariem Osmani from the ATO wrote to Daniel Rodriguez at the CRU Group confirming that 'early last year the ATO purchased some data from CRU' and requested a meeting because she had a number of questions about how the data purchased from CRU was compiled. After a telephone discussion between CRU and the ATO, CRU advised by email dated 27 March 2019 that they were unable to assist with the request. The ATO then decided to issue a formal notice to obtain the information because CRU was not prepared to provide the information voluntarily.^[45] See emails at exhibit 10 tab 39 and transcript pp 98-100.
(d) On 29 March 2019 the respondent issued a notice to CRU Australia compelling the production of certain documentation but it was subsequently withdrawn on 10 May 2019.^[46] Exhibit 10 tab 39 pp 20 to 30 and transcript pp 108 and 109.
(e) It is apparent from the disclosed parts of document 729 that, in addition to CRU, there are other data gathering and analysis firms who provided market data and analytical information to the ATO, including the EP.^[47] Document 729. There is very little evidence about these other sources of information but it is apparent that they are similar to CRU in that they provide market data and analytical information to the public.
(f) The ATO engaged Gerson Lehrman Group (GLG) for the purpose of selecting an independent expert. Ms Harako agreed under cross examination that she was aware of this.^[48] Transcript p 116 at line 40. The engagement of GLG is referred to in the commonwealth contract for services dated 23 May 2019 which is annexure 4 to the First Harako affidavit. Mr Bodner was engaged by AGS as an industry expert on 23 May 2019.

92. I have considered each of the documents in paragraph 23 of the Second Harako affidavit over which there is a s 38 claim.

93. The issue for the Tribunal under s 38 is whether disclosure of these documents, or the information contained in the documents, is prohibited because the three elements of the meaning of 'protected information' in s 355-30 of Schedule 1 to the TA Act are made out (subject to any exception), namely:

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(a) the information was obtained for the purposes of a taxation law, namely the Alcoa audit;
(b) the information relates to the affairs of the third party experts that provided the information; and
(c) the information identifies those third party experts.

94. The information in the documents in all of the subparagraphs to paragraph 23 of the Second Harako affidavit was provided to the ATO for the purposes of the Alcoa audit so the first element is made out. The third element is also made out because, having considered the information in those documents, it is apparent on their face that the information identifies the third party in question. The question raised by the second element, namely whether the information relates to the affairs of the third party requires more detailed analysis. I will consider that question separately with respect to each of the subparagraphs to paragraph 23 in the second Harako affidavit and then I will consider separately the issue of whether there is a statutory exception.

Does the information in the documents in the Second Harako affidavit at [23.2] relate to the affairs of the third party expert

95. The documents in the Second Harako affidavit at paragraph 23.2 include information provided by a third party. More particularly, documents 725, 935 and 961 are tables of market data providing weekly and monthly alumina prices over a confined period of time. The question for the Tribunal is whether the pricing data from the market for alumina is information relating to the affairs of the third party data provider.

96. The statutory object expressed in s 355-10 in sub-div 355-A to protect 'the confidentiality of taxpayers' affairs' would not appear to apply in this case because information comes from a data provider and not a taxpayer. This anomaly is confirmed by the guide to sub-div 355-B at s 355-20 which refers to 'protection for taxpayer confidentiality' and the offence of disclosing 'tax information'. Further, the relevant explanatory memorandum provides that the objective of the new framework is to protect the confidentiality of taxpayer information and that compliance with taxation laws could be adversely affected if taxpayers thought that their information could be readily disclosed. These references to the protection of the taxpayer could lead one to the conclusion that subdivision 355-B applies only to taxpayer information and not some other third party who provides information to the ATO. This conclusion would also be understandable based on a consideration of the authorities to which the Tribunal was taken which all relate to a taxpayer and the potential disclosure of taxpayer information. However, the process of statutory interpretation must always start with the words themselves which I consider below.

97. When one considers the words of the statute in s 355-30(1)(b) which refers to information that 'relates to the affairs of an entity', it is apparent that the provision has application beyond a taxpayer and the taxation affairs of a taxpayer. It may well be that the entity will often be a taxpayer and that the information in issue will often relate to taxation affairs, which is the situation in the authorities referred to above, but that is not proscribed by the subsection. The word 'entity' is defined broadly in s 960-100(1) of the Income Tax Assessment Act 1997 (Cth) to include an individual and a body corporate amongst others. It would include a taxpayer but is not so confined. The word 'affairs' is a word of very wide import and would include the activities, business or concerns of the third party data provider.^[49] John v Connor (1992) 107 ALR 465 at 476 . The words 'relates to' have a very wide meaning and require that there be some relationship ^[50] O’Grady v Northern Queensland Co Ltd (1990) 92 ALR 213 at 228 . or connection between the information and the affairs of the entity. The words have been described as having a chameleon-like quality in that they commonly reflect the context in which they appear.^[51] Technical Products Pty Ltd v State Government Insurance Office (1989) 85 ALR 173 at 175 . The degree of connection that must be shown will depend upon the context and may include consideration of the subject matter of the enquiry and the facts of the case.^[52] Travelex Ltd v Commissioner of Taxation (2010) 270 ALR 253 at 259 .

98. Turning then to the facts of this case, the information in the documents is pricing data for the alumina market. Can it be said that this data from the market relates to the affairs of the third party? What connection or relationship does the third party have with this data? On the one hand, there is a connection because it is the business of the third party to provide market data upon subscription. On the other hand, the

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connection is very slight because the third party does not participate in the alumina market but has merely compiled information from the market to create an index. On balance, I consider that there is a sufficient connection between the information in the form of market data and the affairs of the third party. The connections arises because it is the business of the third party to provide market data and it is apparent from an analysis of the data that it has been compiled by the third party. I conclude that the information in these three documents relates to the affairs of the third party and that therefore the three elements of protected information have been made out.

99. It follows that, subject to any statutory exceptions, disclosure of this information would be an offence under s 355-25 of Schedule 1 to the TA Act and therefore prohibited for the purposes of s 38. The next question is whether there is a statutory exception in sub-div 355-B. The applicant points to the exception in s 355-45 which applies to the disclosure of publicly available information.

Was the information in the documents in the Second Harako affidavit at [23.2] already available to the public

100. The respondent contends that the information in the documents from the third party experts which was provided by subscription was not publicly available because the evidence shows that they refused a later request for information. I reject that contention because what the evidence shows is that the information in question that is included in the documents in issue was information provided to the ATO as part of its subscription. What happened later with respect to a further request for information does not change the nature of the information provided by subscription. The nature of the information provided was market data with respect to alumina pricing. The data is compiled from 'all the world's bauxite, alumina and aluminium companies'.^[53] Appendix C of the ATO position paper dated 6 September 2018 (annexure 3 to the First Haruko affidavit). It was available, and was actually provided, upon payment of a subscription. The information came from a publicly available source and the requirement to pay a fee does not mean that it is not publicly available.^[54] Explanatory Memorandum, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2010 (Cth) [4.35] and Lee v Deputy Commissioner of Taxation [2023] FCAFC 22 at [59] and [60] .

101. Documents 725, 935 and 961 comprise tables of data from a publicly available source. They include the name of the third party which has compiled the data. The information in those tables is available to the public upon payment of a fee. The ATO accessed the information in this way and so too could any member of the public. I find that they are not exempt documents under s 38 because the information contained in those documents was available to the public.

102. Document 729 is an ATO Economist Practice briefing note which has been partially released but over which there are limited claims under s 38 with respect to some data and references to the sources of that data. The data relates to the Brazilian alumina refining industry including export data. It is apparent that the data of the nature included in the Economist Practice Briefing Note is publicly available because it has been provided to the EP from sources named in the note. Document 729 is a document created by the ATO, unlike documents 725, 935 and 961 which were tables of market data in a document created by the third party. This is an important distinction because the ATO in its briefing note has provided its own pricing analysis which compares the information from two third party data providers. This further analysis is not entirely the information of the third party data providers. In so far as it is, it is publicly available. Otherwise it is information generated by the ATO and is not information obtained from a third party. I find that the redacted references to the source of the data and the data itself from the third parties are not exempt from disclosure under s 38 because it is publicly available information. I find that the redacted passages of narrative that describe the source companies are not exempt from disclosure under s 38 because it is publicly available information. I find that the redacted passages of analytical narrative relating to the same data and the associated tables and graphs are not exempt from disclosure under s 38 because the information in the narrative is either publicly available information or ATO information not obtained from a third party.

103. The respondent argues that these claims should be upheld because the information from these third party sources or the references to it in the briefing note are not publicly available. The respondent says that the information in that

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particular context which reveals how it was being used is not available to the public. I reject that contention. I consider that once it is established that the data which includes the name of the source is publicly available then any reference to that data and the name of the source is information which is not exempt from disclosure under s 38. I reject the s 38 claim made in relation to document 729.

104. Subject to any other FOI claim, the applicant is entitled to access those parts of document 729 that have been redacted under s 38.

Does the information in the documents in the Second Harako affidavit at [23.1] relate to the affairs of the third party expert

105. The documents in the Second Harako affidavit at paragraph 23.1 are described as communications with third party experts for the purposes of the audit which disclose their business affairs including interactions of those experts with the ATO. I am satisfied that the information in these documents relate to the affairs of the third party experts and that therefore the three elements of protected information have been made out.

106. It follows that, subject to any statutory exceptions, disclosure of this information would be an offence under s 355-25 of Schedule 1 to the TA Act and therefore prohibited for the purposes of s 38. The next question is whether there is a statutory exception in sub-div 355-B. The applicant points to the exception in s 355-45 which applies to the disclosure of publicly available information.

Was the information in the documents in the Second Harako affidavit at [23.1] already available to the public

107. The redacted material contains references to numerous third parties and market data information provided by them. Some of these third parties are in the business of providing data such as CRU but others actually participate in the market as suppliers of alumina.

108. The redacted material includes references to third party data providers (such as CRU) and/or its market data contained in a draft SOAP ^[55] Documents 10, 16, 18, 20, 22, 56, 68, 346, 809, 811. or draft EP report ^[56] Documents 731, 926. or in a DC Case Template ^[57] Documents 34, 747, 749. or a file note ^[58] Documents 205, 230, 417, 426-435, 486, 572, 663, 755, 948. or emails ^[59] Documents 212, 468, 546, 569, 574-578, 695, 696, 704-713, 726, 727, 773, 802, 804, 805, 883, 887, 891, 914, 964. or other ATO documents.^[60] Documents 724, 774, 776, 778, 857, 863, 865, 872, 884, 886, 888, 890, 957. The respondent has also claimed an exemption in full over emails and correspondence relating to third party experts.^[61] Documents 138, 423-425, 470-484, 688-690, 734, 735, 738, 840, 898-907, 921, 929-946, 951-953, 956, 959-961, 963, 966.

109. I will consider first the redactions made by the respondent of all references to CRU and its data in the draft SOAPs, the draft EP reports, the DC Case templates, the file notes, the emails and the other ATO documents. CRU promotes its services to the public and its data is available to the public through subscription as I have already found. The respondent expressly and without qualification relied upon the CRU data in its position paper provided to Alcoa in September 2018. The position paper included appendix C ^[62] First Harako affidavit at annexure 3. entitled 'CRU Independent Pricing Data' which described CRU and the services it provided including its weekly reporting of alumina indices compiled from pricing data in the market. Ms Harako deposed in her first affidavit ^[63] First Harako affidavit at [23]. to the ATO issuing the position paper on 6 September 2018. The respondent has filed with the Tribunal the First Harako affidavit to which is annexed the ATO position paper dated 6 September 2018. The First Harako affidavit and the annexure were tendered as exhibit 7 in the Tribunal during the respondent's opening address.

110. In addition to the material filed and tendered as exhibits by the respondent with respect to CRU, Alcoa also tendered CRU documents that had been released to it under a previous Freedom of Information request. Those documents relate to the notice issued to CRU by the respondent pursuant to s 353-10 of Schedule 1 of the TA Act and are dated from October 2018 to May 2019. They are contained in the applicant's tender bundle (exhibit 10) behind tab 39. Most of the documents behind tab 39 are the same documents over which the respondent has made a s 38 claim.^[64] See documents 471, 473, 474, 477, 479, 480, 481-482, 688, 690. The effect of the case being run by the respondent with respect to these documents is that Alcoa should be denied access to the same documents that it has already obtained by a previous FOI request. The respondent did not assert that it was impermissible for Alcoa to rely on those documents in this action and they were allowed into evidence as part of exhibit 10. There is nothing in the FOI Act that limits what an applicant may do with released documents. The Freedom of Information Guidelines say:

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3.36 Nothing in the FOI Act limits what an applicant may do with the released documents (although other legal restrictions such as copyright will still apply, see [3.222]). A decision to give a person access should therefore be made in the knowledge that the applicant may share the content of the documents with others or publish them to a larger audience (
Re Sunderland and Defence [1986] AATA 278;
'FG' and National Archives of Australia [2015] AICmr 26; and
'BA' and Merit Protection Commissioner [2014] AICmr 9). However, it would be incorrect for an agency to proceed on the premise that disclosure under the FOI Act is always the same as 'disclosure to the world at large' (See
'FG' and National Archives of Australia [2015] AICmr 26). Although the FOI Act does not limit further dissemination by the applicant, agencies should be aware that not every applicant would disseminate information obtained via an FOI request. Agencies should ensure that each case is examined on its own merits when deciding whether disclosure of the information would be unreasonable under a particular exemption, where unreasonableness is a relevant consideration.

111. Ms Harako was cross examined with respect to the ATO's dealings with CRU. She accepted that the position paper was based on the CRU index and she explained that CRU is a business and intelligence firm to which people can subscribe to purchase data.^[65] Transcript p 95. She was taken to documents relating to CRU contained within exhibit 10. Ms Harako said she had no reason to doubt the accuracy of some of the email communications that were put before her but at some stages of her cross examination she did express her concern to the Tribunal that she would be disclosing protected information if she answered questions on the topic of CRU. By that stage of her cross examination, it was apparent that information relating to CRU was well and truly available to the public. First, it had been released pursuant to a Freedom of Information request. Second, CRU information had been included in the annexure to the First Harako affidavit which had been filed and tendered as an exhibit in these proceedings. Third, Ms Harako gave oral evidence during open hearings of the Tribunal about CRU and the role it played with respect to the ATO position paper. Fourth, Alcoa tendered as an exhibit the CRU material in the applicant's tender bundle. Fifth, as I have already found, the data supplied by CRU was available by subscription and was therefore available to the public. Ms Harako was understandably adopting a cautious approach during the hearing, but it is my view that any information in the documents in the Second Harako affidavit at paragraph 23.1 relating to CRU was already available to the public and therefore comes within the exception in s 355-45 and is not exempt under s 38.

112. Next I consider the redactions made by the respondent of references to other data providers and participants in the market who supply alumina. The Tribunal has been provided with very limited evidence about these other third parties. I have taken the approach that the market data disclosed by all third parties is publicly available information because it would be available from a public source. The names and data provided by these third parties would constitute information already available to the public and would come within the exception in s 355-45. I would distinguish from this group of third parties, those with whom the ATO or AGS has engaged or dealt with in their search for an expert in around early 2019 except for CRU. This would include any information relating to GLG. Ms Harako confirmed the involvement and role of GLG in selecting experts during her cross examination.^[66] Transcript p 116. The discussions with these experts and any information provided by them which is recorded in the documents would not be publicly available. References to those experts and the information provided by them would not come within the exception in s 355-45 and therefore would be protected information.

113. It follows from the approach that I have taken that all the s 38 claims over information in the documents in the Second Harako affidavit at paragraph 23.1 should be rejected except for those that relate to the search and engagement with experts including GLG but excluding CRU. This would have the result for example that I reject the basis for all redactions under s 38 in the draft SOAPs ^[67] Documents 10, 16, 18, 20, 22, 56 68, 346, 809, 811. or draft EP

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reports.^[68] Document 731, 926. The reason why CRU is excluded is because the fact of CRU's dealing through Justin Hughes and Daniel Rodriguez with the ATO at the time of the initial provision of data and with respect to the follow up requests from October 2018 to May 2019 is publicly available for the reasons cited above. I have taken the approach that if the subject matter of a document relates to the publicly available information then that document is not an exempt document under s 38 because it would come within the exception in s 355-45 of Schedule 1 to the TA Act. For example, document 470 is an internal ATO email but its subject matter is publicly available based on my previous findings. The email is dated 10 May 2019 and relates to the same matters that were the subject of contemporaneous emails in the possession of Alcoa and tendered as part of exhibit 10 tab 39. Further, the email attaches the ATO notice of withdrawal given to CRU on 10 May 2019 which is a document publicly available because of its disclosure under a previous FOI request and its tender as part of exhibit 10 tab 39.^[69] Exhibit 10 tab 39 p 20. In addition there is document 1028 which fits into this category on its face, noting that this document was not referred to in the First or Second Harako affidavit.

114. I conclude that the documents in paragraph 23.1 of the Second Harako affidavit that are exempt documents under s 38 are documents 336, 438, 441, 927, 950 and 966 (in full) and 546 (in part) because they relate to the search and engagement with experts other than CRU.

Does the information in the documents in the Second Harako affidavit at [23.3] relate to the affairs of the third party expert

115. The documents in the Second Harako affidavit at paragraph 23.3 are described as communications with third party experts and AGS in relation to potential engagement of those experts for the purpose of the audit, which disclose details of the business affairs including details of the nature of the business conducted by those experts and their previous experience. An additional document in this category is document 486. An example of the documents in this subparagraph is the transcript of an interview with a potential expert over which there is a claim with respect to the whole of the document. An example of a redaction is with respect to the name of a potential expert. I am satisfied that the information in these documents relate to the affairs of the third party experts and that therefore the three elements of protected information have been made out.

Was the information in the documents in the Second Harako affidavit at [23.3] already available to the public

116. The information in these documents is not available to the public except for the information in those documents relating to CRU, namely documents 126, 127, 486, 747 and 749. The documents in the Second Harako affidavit at paragraph 23.3 are exempt documents under s 38 except for documents 126, 127, 486 and parts of 747 and 749.

Does the information in the documents in the Second Harako affidavit at [23.4] relate to the affairs of the third party expert

117. The documents in the Second Harako affidavit at paragraph 23.4 are described as information about the activities of third parties in the alumina industry obtained by the ATO for the purposes of the audit, including from a third party expert and the AGS, which can reasonably be used to identify those third parties. I am satisfied that, on the face of these documents, the information in these documents relate to the affairs of the third party, but the respondent has not sought to address these claims by providing any evidence relating to them.

Was the information in the documents in the Second Harako affidavit at [23.4] already available to the public

118. This is a convenient place for me to consider a contention of the applicant based upon the s 61 onus on the respondent of establishing that the decision under review is justified or that the Tribunal should give a decision adverse to the applicant in relation to the request. The applicant contends that in the absence of evidence with respect to the information allegedly provided by a third party and in the absence of any evidence as to whether that information was publicly available then I should find that the respondent has failed to satisfy its onus. The respondent contends that I can be satisfied on the question of protected

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information by looking at the document in issue itself. Further, the respondent contends that the respondent is not obliged to prove a negative i.e. is not required to prove that the information is not publicly available.

119. It is a matter for the respondent as to whether to put on any evidence to satisfy its onus. Sometimes the document in issue is sufficient evidence to establish the elements of the claim and to satisfy the onus. If not, the respondent always has the option of putting on evidence which, if it would potentially disclose the contents of the subject documents, can be given in a closed session with appropriate confidentiality orders. The respondent chose not to file any confidential affidavits or to apply for a closed session within which to give confidential evidence.

120. The onus in this case is on the respondent to establish that the disclosure of the subject documents is prohibited under s 355-25 of Schedule 1 to the TA Act. The key element for the respondent to establish is that the information in the subject documents is protected information under s 355-30. There was no evidence from Ms Harako about how this third party information was obtained from the alumina industry participant except that it included information conveyed by an expert. I can infer, as I have done, that the information was obtained for the purposes of the Alcoa audit. Further, I can be satisfied from an inspection of the subject documents that the information relates to the affairs of the entity and identifies it. However, the question as to whether disclosure is prohibited does not end there. I must direct my attention to the statutory exceptions which if satisfied will have the result that the offence created by s 355-25 does not apply in which case disclosure of the subject documents would not be prohibited by the TA Act.

121. Section 61(1)(b) of the FOI Act provides that:

…the agency to which…the request…was made has the onus of establishing that the decision is justified, or that the Tribunal should give a decision adverse to the applicant.

122. Gleeson CJ said in King v The Queen:

…The point of an onus of proof is to identify the party who is obliged to establish a fact and who will bear the legal consequences of failure to do so…The onus cannot, at one and the same time, be upon both parties in relation to one and the same factual issue…^[70] King v R [2003] HCA 42 at [18] .

123. The operation of the s 61 onus is intended to benefit the applicant and not work against it. The effect of the respondent's contention is that it is not required to address the exception relating to publicly available information and that it is sufficient for the Tribunal to be satisfied that the information is protected information. The applicant is put in the difficult position of not knowing the entity or the nature of the information obtained by the ATO. In terms of whether the respondent has satisfied its onus, I consider that it is appropriate to consider any evidence relevant to the exceptions in light of the difficult position of the applicant and the need to accord procedural fairness to the applicant. In this case, it is apparent from the documents in issue (without disclosing their contents) that the information in question is market data relating to the prices for the supply of alumina. The respondent chose not to call any evidence about the nature of this market data, but I am prepared to infer that it is of a similar nature to the data provided by CRU although I would note that it is data particular to the participant in the alumina market. I accept the respondent's contention that it is not required to prove that the information is not available to the public but in this case there is very little evidence as to whether that information is publicly available or not. However, I do consider that there is sufficient evidence to found an inference that the information is publicly available. The evidence is the market data and information about alumina pricing which has been obtained and recorded by the ATO. It is this data that CRU and other analytics firms gather from the market. The respondent has not adduced any evidence contrary to that inference. It chose not to and I consider that it has not satisfied its onus of establishing that the disclosure of the subject documents is prohibited by s 355-25. Therefore, the exemption in s 38 does not apply.

124.

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I note that DP Forgie adopted a similar approach to mine in
Pratt and Commissioner of Taxation [2011] AATA 907 and said:

160. That does not mean that the decision-maker must necessarily prove a negative at the outset in this case i.e. that the information is not information that is already available to the public. What it does mean is that the decision-maker must look to the type of information that is in question. If it is of a sort that is readily known, or should readily be known at least in the public sector, to be available to the public, it is incumbent upon the decision-maker to consider the matter. If, for example, it is information that might be available to the public through a public register or electronic data base of some type, the enquiry should be made. Information about a variety of matters from bankruptcies to land titles would come within that description and would be expected to be known by someone working in public administration. If the information is available to the public, the effect of s 355-45 is that its disclosure is not prohibited and, to the extent that it contains that information, the document is not exempt under s 38 of the FOI Act.

…

179. On the evidence that I have, I do not know whether a completed version of Document 541 was lodged with ASIC. Section 355-45 focuses on the information that is available to the public and not on the document but it is a document of a sort that might reasonably be expected to have been lodged and required to have been lodged. If it has been lodged, it is likely to be available to the public. I am in a position where I do not know whether the information in the document is, or is not, available to the public. If this were a case in which there were no burden of proof on either party, my state of uncertainty would lead me to conclude that I had failed to reach the state of mind necessary to change the decision that had already been made that the document is exempt. Section 61(1), however, does impose a burden of proof on the ATO. It is a burden to establish "that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant." Having reached a state of uncertainty the burden imposed by s 61(1) means that I am not satisfied that the decision given in respect of Document 541 is justified. Therefore, I find that it comes within s 355-45 of the TA Act and so is excluded from the prohibition against disclosure in s 355-25. It is not an exempt document under s 38 of the FOI Act.

125. It follows from the approach that I have taken that all the s 38 claims over information in the documents in the Second Harako affidavit at paragraph 23.4 should be rejected.^[71] Subject to some changes made and reflected in the schedule of documents in issue (exhibit 9). I find that the documents in the Second Harako affidavit at paragraph 23.4 are not exempt documents under s 38.

THE CLAIM FOR EXEMPTION UNDER SECTION 47 - TRADE SECRETS

Relevant principles

126. Section 47 of the FOI Act relevantly provides:

Documents disclosing trade secrets or commercially valuable information

(1) A document is an exempt document if its disclosure under this Act would disclose:

(a) trade secrets; or

(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.

127. The respondent claims that documents 725, 935 and 961 are exempt in full under s 47 and that document 729 is exempt in part.

128. Ms Harako says in paragraph 56 of the Second Harako affidavit that these documents contain information obtained on a commercial basis by the ATO from a third party expert for the purposes of the audit. She says that the information is not publicly available.

129. With respect to trade secrets, the FOI guidelines say:

Trade secrets

5.199 The term 'trade secret' is not defined in the FOI Act. The Federal Court has interpreted a trade secret as

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information possessed by one trader which gives that trader an advantage over its competitors while the information remains generally unknown.

5.200 The Federal Court referred to the following test in considering whether information amounts to a trade secret:

• the information is used in a trade or business

• the owner of the information must limit its dissemination or at least not encourage or permit its widespread publication

• if disclosed to a competitor, the information would be liable to cause real or significant harm to the owner of the information.

5.201 Factors that a decision maker might regard as useful guidance but not an exhaustive list of matters to be considered include:

• the extent to which the information is known outside the business of the owner of that information

• the extent to which the information is known by persons engaged in the owner's business

• measures taken by the owner to guard the secrecy of the information

• the value of the information to the owner and to his or her competitors

• the effort and money spent by the owner in developing the information

• the ease or difficulty with which others might acquire or duplicate the secret.

5.202 Where the information is 'observable', such as the design features of a fishing net, the Information Commissioner has found that the information is not a trade secret.

5.203 Information of a non-technical character may also amount to a trade secret. To be a trade secret, information must be capable of being put to advantageous use by someone involved in an identifiable trade.

130. The data contained in these documents was provided by CRU through the ATO's subscription. I have found that this information is publicly available because it can be obtained by payment of a fee. The information is not a trade secret because the owner of the information does not limit its dissemination but rather offers it to the public for the payment of a fee. No harm arises to the owner of the information if it is disclosed.

131. With respect to information having a commercial value, the FOI guidelines say:

Information having a commercial value

5.204 To be exempt under s 47(1)(b) a document must satisfy two criteria:

• the document must contain information that has a commercial value either to an agency or to another person or body, and

• the commercial value of the information would be, or could reasonably be expected to be, destroyed or diminished if it were disclosed.

5.205 It is a question of fact whether information has commercial value, and whether disclosure would destroy or diminish that value. The commercial value may relate, for example, to the profitability or viability of a continuing business operation or commercial activity in which an agency or person is involved. The information need not necessarily have 'exchange value', in the sense that it can be sold as a trade secret or intellectual property. The following factors may assist in deciding in a particular case whether information has commercial value:

• whether the information is known only to the agency or person for whom it has value or, if it is known to others, to what extent that detracts from its intrinsic commercial value

• whether the information confers a competitive advantage on the agency or person to whom it relates - for example, if it lowers the cost of production or allows access to markets not available to competitors

• whether a genuine 'arm's-length' buyer would be prepared to pay to obtain that information

• whether the information is still current or out of date (out of date information may no longer have any value)

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• whether disclosing the information would reduce the value of a business operation or commercial activity - reflected, perhaps, in a lower share price.

5.206 The time and money invested in generating information will not necessarily mean that it has commercial value. Information that is costly to produce will not necessarily have intrinsic commercial value.

5.207 The second requirement of s 47(1)(b) - that it could reasonably be expected that disclosure of the information would destroy or diminish its value - must be established separately by satisfactory evidence. It should not be assumed that confidential commercial information will necessarily lose some of its value if it becomes more widely known. Nor is it sufficient to establish that an agency or person would be adversely affected by disclosure; for example, by encountering criticism or embarrassment. It must be established that the disclosure would destroy or diminish the commercial value of the information.

132. The documents are not exempt under s 47(1)(b) because any commercial value of the information would not be destroyed or diminished if it were disclosed. Further, there has been no evidence from the respondent about loss of value which cannot merely be assumed. For example, there was no evidence that a genuine 'arm's-length' buyer would currently be prepared to pay to obtain information which dates from around 2017.

133. I am not satisfied that documents 725, 935, 961 and 729 are exempt documents under s 47.

THE CLAIM FOR EXEMPTION UNDER SECTION 47F - PERSONAL PRIVACY

Relevant principles

134. Section 47F relates to documents which disclose personal privacy of individuals and provides:

General rule

(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:

(a) the extent to which the information is well known;

(b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;

(c) the availability of the information from publicly accessible sources;

(d) any other matters that the agency or Minister considers relevant.

135. The Guidelines at 6.138 say that the personal privacy exemption is designed to prevent the unreasonable invasion of third parties' privacy. The Guidelines at 6.142 say that the key factors for determining whether disclosure is unreasonable include:

(a) the author of the document is identifiable
(b) the documents contain third party personal information
(c) release of the documents would cause stress on the third party
(d) no public purpose would be achieved through release.

136. Other matters that have been considered relevant include:^[72] Office of the Australian Information Commissioner, Freedom of Information Guidelines – Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth), November 2023 at [6.143] (‘Guidelines’).

• the nature, age and current relevance of the information
• any detriment that disclosure may cause to the person to whom the information relates
• any opposition to disclosure expressed or likely to be held by that person
• the circumstances of an agency's collection and use of the information
• the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act
• any submission an FOI applicant chooses to make in support of their application as to their reasons for seeking access and their intended or likely use or dissemination of the information, and

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• whether disclosure of the information might advance the public interest in government transparency and integrity.

137. If the documents are conditionally exempt, s 11A(5) provides that access must be given to them unless access at that time would, on balance, be contrary to the public interest.

138. Section 11B(3) provides:

Factors favouring access

(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:

(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);

(b) inform debate on a matter of public importance;

(c) promote effective oversight of public expenditure;

(d) allow a person to access his or her own personal information.

139. Section 11B(4) sets out those factors, to which regard may not be had:

Irrelevant factors

(4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:

(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;

(b) access to the document could result in any person misinterpreting or misunderstanding the document;

(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;

(d) access to the document could result in confusion or unnecessary debate.

Freedom of Information Guidelines: Public Interest

140. Section 93A requires the Tribunal to have regard to any guidelines issued by the Information Commissioner. Paragraph 6.5 of the Freedom of Information Guidelines ( Guidelines ) sets out the general principles regarding what is in the public interest. The public interest test is considered to be:

• something that is of serious concern or benefit to the public, not merely of individual interest;
• not something of interest to the public, but in the interest of the public;
• not a static concept, where it lies in a particular matter will often depend on a balancing of interests;
• necessarily broad and non-specific, and
• related to matters of common concern or relevance to all members of the public, or a substantial section of the public.

141. Paragraph 6.6 of the Guidelines goes on to state that:

It is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. A matter of particular interest or benefit to an individual or small group of people may also be a matter of general public interest.

142. The Guidelines consider further the four factors identified in s 11B(3) as favouring access:

6.18 For example, disclosure of a document that is conditionally exempt under s 47G(1)(a) might, in the particular circumstances, both inform debate on a matter of public importance, and promote effective oversight of public expenditure. These would be factors in favour of disclosure in the public interest. Similarly, it would be a rare case in which disclosure would not promote the objects of the FOI Act, including by increasing scrutiny, discussion, comment and review of the government's activities.

6.19 The four factors favouring disclosure are broadly framed but they do not constitute an exhaustive list. Other factors favouring disclosure may also be relevant in the particular circumstances. A non-exhaustive list of factors is below.

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Public interest factors favouring disclosure

(a) promotes the objects of the FOI Act, including to:

(i) inform the community of the Government's operations, including, in particular, the policies, rules, guidelines, practices and codes of conduct followed by the Government in its dealings with members of the community

(ii) reveal the reason for a government decision and any background or contextual information that informed the decision

(iii) enhance the scrutiny of government decision making

(b) inform debate on a matter of public importance, including to:

(i) allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official

(ii) reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct

(iii) reveal deficiencies in privacy or access to information legislation

(c) promote effective oversight of public expenditure

(d) allow a person to access his or her personal information, or

(i) the personal information of a child, where the applicant is the child's parent and disclosure of the information is reasonably considered to be in the child's best interests

(ii) the personal information of a deceased individual where the applicant is a close family member (a close family member is generally a spouse or partner, adult child or parent of the deceased, or other person who was ordinarily a member of the person's household)

(e) contribute to the maintenance of peace and order

(f) contribute to the administration of justice generally, including procedural fairness

(g) contribute to the enforcement of the criminal law

(h) contribution to the administration of justice for a person

(i) advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies

(j) reveal environmental or health risks of measures relating to public health and safety and contribute to the protection of the environment

(k) contribute to innovation and the facilitation of research.

143. The Guidelines note that the FOI Act does not list any factors weighing against disclosure:

6.20 …However, the inclusion of the exemptions and conditional exemptions in the FOI Act recognises that harm may result from the disclosure of some types of documents in certain circumstances; for example, where disclosure could prejudice an investigation, unreasonably affect a person's privacy or reveal commercially sensitive information. Such policy considerations are reflected in the application of public interest factors that may be relevant in a particular case.

6.21 Citing the specific harm defined in the applicable conditional exemption is not of itself sufficient to conclude that disclosure would be contrary to the public interest. However, the harm is an important consideration that the decision maker must weigh when seeking to determine where the balance lies.

6.22 A non-exhaustive list of factors against the disclosure is provided below.

Public interest factors against disclosure

(a) could reasonably be expected to prejudice the protection of an individual's right to privacy…

(b) could reasonably be expected to prejudice the fair treatment of the

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individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct

(c) could reasonably be expected to prejudice security, law enforcement, public health or public safety

(d) could reasonably be expected to impede the administration of justice generally, including procedural fairness

(e) could reasonably be expected to impede the administration of justice for an individual

(f) could reasonably be expected to impede the protection of the environment

(g) could reasonably be expected to impede the flow of information to the police or another law enforcement or regulatory agency

(h) could reasonably be expected to prejudice an agency's ability to obtain confidential information

(i) could reasonably be expected to prejudice an agency's ability to obtain similar information in the future

(j) could reasonably be expected to prejudice the competitive commercial activities of an agency

(k) could reasonably be expected to harm the interests of an individual or group of individuals

(l) could reasonably be expected to prejudice the conduct of investigations, audits or reviews by the Ombudsman or Auditor-General

(m) could reasonably be expected to discourage the use of the agency's access and research services

(n) could reasonably be expected to prejudice the management function of an agency

(o) could reasonably be expected to prejudice the effectiveness of testing or auditing procedures.

144. The documents in paragraphs 58.1, 58.2 and 58.3 of the Second Harako affidavit are no longer claimed by the respondent to be exempt documents. The claim is pressed with respect to paragraph 58.4 in which Ms Harako deposes that the information in those documents comprise the identity, contact details and information about the personal financial circumstances of proposed experts approached by the ATO but not ultimately engaged. She considers that the disclosure of the identity, contact details and personal financial circumstances of the proposed third-party expert would be unreasonable in the circumstances where the individual concerned is not known to be associated with the ATO or the audit, and at least some of that information could cause detriment to that individual.

145. It is apparent to me that the respondent has limited its redactions to personal information in these documents. I consider that the disclosure of that personal information relating to experts not ultimately engaged would be unreasonable and, with respect to public interest, the disclosure could reasonably be expected to prejudice the protection of an individual's right to privacy. There is minimal public interest in disclosing personal information of an expert not ultimately engaged. I do not consider that disclosure would promote transparency or integrity or otherwise advance the public interest, given the expert was not in any event engaged by the ATO. On balance, I consider that accessing the documents would be contrary to the public interest. I am satisfied that the claim under s 47F with respect to the documents in paragraph 58.4 of the Second Harako affidavit is made out.

DOCUMENTS OUTSIDE THE SCOPE OF THE FOI REQUEST

146. Ms Harako deposes in her second affidavit that certain documents previously treated as within scope are not in fact within the scope of the request under the FOI Act. Ms Harako identifies those out of scope documents in paragraph 14 of her second affidavit. Alcoa accepts that the documents in paragraphs 14.3 and 14.4 are outside of scope. In addition to the Second Harako affidavit, on 15 May 2023, the respondent provided a detailed schedule describing 141 documents assessed as being outside of scope and the basis for their exclusion. These documents are also identified as 'irrelevant' in the schedule of all

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documents revised as at 20 June 2023 and tendered as exhibit 8.

147. To identify what documents fall outside the scope of the request, I refer to the revised request made by letter on 15 June 2020 and the definition of 'relevant documents'. The overarching requirement for a document to be within scope is that it relates to matters considered in the SOAP. There are then four categories of further qualification including by date:

(a) The first category is limited to Tax Counsel Network documents for the period on or after 14 December 2018. I note for example that some documents have been excluded because they are Tax Counsel Network correspondence that pre-date 14 December 2018.
(b) The second category are communications with any expert not ordinarily employed in the ATO.
(c) The third category are communications sent by the Economist Practice in a 30 day period commencing on 18 November 2019 and ending on 17 December 2019.
(d) The fourth category are drafts of the SOAP and the Economist Report.

148. A significant proportion of the documents identified by the respondent as being outside of scope are documents regarding the engagement of potential experts that do not relate to matters considered in the SOAP. For example, where the subject matter of the document is the expertise, contractual arrangements or contact details of a potential expert, that document would fall outside of the request because it does not relate to matters in the SOAP. I accept what Ms Harako says in this regard at paragraph 14.6 of her second affidavit. The overarching limitation is to documents held by the ATO in respect of matters considered in the SOAP. I do not consider that a document about a potential expert not ultimately engaged is a document which relates in any way to a matter considered in the SOAP. It follows that I reject Alcoa's contention made at paragraph 78(c) of the applicant's Amended Statement of Facts, Issues and Contentions dated 2 December 2022.

149. The other significant proportion of the documents identified by the respondent as being outside of scope are documents that contain or comprise draft instructions to experts. Draft instructions do not come within the second category above which is limited to actual communications and not drafts. Alcoa contends that documents 142, 143 and 520 are within scope because they are attachments to documents 141 and 519 which are within scope. I reject that contention because documents 142, 143 and 520 are draft instructions, which is apparent on the face of those documents and also by reference to the host emails. I accept what Ms Harako says at paragraph 14.5 of her second affidavit in this regard.

150. In conclusion with respect to the dispute about the scope of documents, I accept the position put forward by the respondent that the 141 documents identified and assessed by it as being out of scope are in fact out of scope.

SUMMARY OF FINDINGS

Claims for exemption under s 42

151. With respect to the documents referred to in paragraphs 32 to 37 of the Second Harako affidavit, I have found that the dominant purpose of these communications was to obtain or give legal advice. These documents would be privileged from production in legal proceedings on the ground of legal professional privilege. They are exempt documents under s 42.

152. With respect to the documents referred to in paragraphs 38 to 43 in the Second Harako affidavit, I have found that the dominant purpose of these communications was to obtain or give legal advice, but that privilege has been waived with respect to these documents. They are not exempt from disclosure under s 42.

153. With respect to the documents referred to in paragraphs 47 and 48 of the Second Harako affidavit, I have found that the dominant purpose of the documents was the obtaining or giving of legal advice. These documents would be privileged from production in legal proceedings on the ground of legal professional privilege. They are exempt documents under s 42.

154. With respect to the documents referred to in paragraph 50 of the Second Harako affidavit, I have found that they are internal confidential communications between ATO officers for the purpose of providing instructions to or obtaining legal advice from

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AGS and counsel in relation to the audit. These documents would be privileged from production in legal proceedings on the ground of legal professional privilege. They are exempt documents under s 42.

155. With respect to the documents referred to in paragraphs 52.1 to 52.4 of the Second Harako affidavit, I have found that they would be privileged from production in legal proceedings on the ground of legal professional privilege. They are exempt documents under s 42.

Claims for exemption under s 38

156. With respect to the documents in the Second Harako affidavit at paragraph 23.1, I have found that the information in these documents is protected information but was already available to the public (and therefore comes within the exception in s 355-45 of Schedule 1 to the TA Act) except with respect to the information that relates to the search for, and engagement with, experts. I am not satisfied with respect to the s 38 claims over information in the documents in the Second Harako affidavit at paragraph 23.1 except with respect to documents containing information that relates to the search and engagement with experts including GLG but excluding CRU. These documents are exempt documents only in so far as they contain information that relates to the search for, and engagement with, any expert excluding CRU. Otherwise, they are not exempt documents. It follows that the documents in this category that are exempt documents are documents 336, 438, 441, 927, 950 and 966 (in full) and 546 (in part).

157. With respect to the documents in the Second Harako affidavit at paragraph 23.2, I have found that the information in these documents is protected information but was already available to the public and therefore comes within the exception in s 355-45 of Schedule 1 to the TA Act. It follows that documents 725, 935 and 961 (in full), and 729 (in part) are not exempt documents under s 38 of the FOI Act.

158. With respect to the documents in the Second Harako affidavit at paragraph 23.3, I have found that they are exempt documents under s 38 except for documents 126, 127 (in full) and 747 and 749 (in part).

159. With respect to the documents in the Second Harako affidavit at paragraph 23.4, I have found that they are not exempt documents under s 38.

Claims for exemption under ss 47 and 47F

160. With respect to the documents in the Second Harako affidavit at paragraph 54, I have found that documents 725, 935 and 961 (in full), and 729 (in part) are not exempt documents under s 47.

161. With respect to the documents in the Second Harako affidavit at paragraph 58.4, I have found that they are exempt documents under s 47F.

Scope

162. With respect to the dispute about the scope of documents, I have accepted the respondent's contention that the 141 documents identified are out of scope.

CONCLUSION

163. The effect of my finding that privilege has been waived with respect to the documents referred to in paragraphs 38 to 43 in the Second Harako affidavit, is that I have partly accepted Alcoa's contention such that it will be entitled to access these documents unless they are exempt from disclosure under some other provision of the FOI Act, namely s 38 or s 47F. The only document within this category which is an exempt document in part under s 38 is document 546. There are no documents within this category that are exempt under s 47F.

164. With respect to the documents for which there are claims under s 38 and which are not the subject of a s 42 claim (i.e. no overlapping s 42 claim), namely documents 470, 471, 479-482, 486, 687-690, 724, 725, 726-729, 734, 738, 739, 756, 781, 782, 857, 863, 865, 872, 929-938, 941-946, 951-953, 956-957, 959-961, 963 and 966, the effect of my finding is that only documents 781 (in part), 782 and 966 are exempt documents under s 38.

165. With respect to the balance of the documents for which there are claims under both s 38 and s 42, the effect of my finding is that part of documents 478, 546, 731, 747, 749, 773, 802, 804, 805, 883, 887, 891, 914, 926 and 1028 should be released.

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DECISION OF THE TRIBUNAL

166. The decision of the Tribunal is to vary the decision under review as finally altered on 21 June 2023 by releasing to the applicant:

(a) the documents referred to in paragraphs 38 to 43 in the Second Harako affidavit except for document 546, namely documents 49, 75, 76, 85-89, 120, 121-125, 128, 129, 130, 131-135, 139, 140, 141, 148, 149, 150-196, 204, 205, 207-211, 212-214, 215, 226-277, 278-279, 284-330, 331-334, 340-344, 348-351, 416, 417, 421, 541-545, 547-551, 552, 553, 554, 555, 557-560, 565-568, 572, 573, 647, 657, 658-662, 663, 664, 665, 668, 692, 693, 694, 697, 698, 699, 737, 798, 877, 878, 879, 895, 896, 908, 909, 917, 918, 919, 947, 948 and 967; and
(b) in full the documents 470, 471, 479-482, 687-690, 724, 725, 726-729, 734, 738, 739, 756, 857, 863, 865, 872, 929-938, 941-946, 951-953, 956-957, 959-961 and 963.
(c) part of documents 478, 546, 731, 747, 749, 773, 802, 804, 805, 883, 887, 891, 914, 926 and 1028.

Footnotes

^[1] See Applicant’s Amended Statement of Facts, Issues and Contentions dated 2 December 2022 at [19] to [21] and [78] ( ASFIC ).
^[2] [2013] HCA 52 ; (2013) 249 CLR 645 , 661 at [37] .
^[3] Transcript p 94.
^[4] Document 755.
^[5] Transcript p 138.
^[6] Documents 64, 79, 744, 745, 755, 775, 795, 796, 843, 885 and 889.
^[7] Exhibit 14.
^[8] Exhibit 10 tab 37.
^[9] cf Pratt Holdings v Commissioner of Taxation (2004) 136 FCR 357 , 368–369 .
^[10] Paragraph 33 of the Second Harako affidavit includes a reference to document 486, although I note that the schedule (exhibit 9) refers only to a s 38 claim over document 486.
^[11] For example, documents 16, 18, 20, 22 and 346.
^[12] For example, documents 23 and 347.
^[13] For example, documents 72 and 75.
^[14] Document 64.
^[15] Transcript p 115.
^[16] For example, documents 10, 56, 68.
^[17] For example, documents 57.
^[18] Documents 79, 744, 745, 775, 795, 796, 843, 885 and 889.
^[19] Documents 92 and 742.
^[20] Documents 63 and 64.
^[21] Documents 795 and 796.
^[22] First Harako affidavit at [32] and annexure 6.
^[23] Exhibit 2.
^[24] Osland v Secretary, Department of Justice (2008) 234 CLR 275 at 297 .
^[25] Bennett v Chief Executive Officer of Australian Customs Service [2004] FCAFC 237 at [6] and [65] .
^[26] See AGS Letter of Instruction to Mr Bodner dated 30 October 2019 at Exhibit 10 tab 37.
^[27] Document 359 and Exhibit 10 at tab 27.
^[28] Exhibit 10 tab 37.
^[29] Exhibit 9.
^[30] Transcript pp 159-160.
^[31] Transcript p 159 lines 31 and 32 and lines 43 to 45.
^[32] Transcript p 210.
^[33] Pearce, Statutory Interpretation in Australia (9 ^th edition, 2019), [12.7]-[12.9].
^[34] Commissioner of Taxation v Swiss Aluminium Australia Ltd (1986) 10 FCR 321 at 325 .
^[35] Exhibit 9.
^[36] See ASFIC at [67(b)].
^[37] Document 10 and exhibit 9.
^[38] Document 10 and exhibit 9.
^[39] Transcript p 95 line 26.
^[40] Exhibit 10 tab 39 p 9.
^[41] Exhibit 10 tab 39 p 15.
^[42] See documents 477 and 474.
^[43] Letter from Ernst & Young to the respondent dated 9 May 2019 (in the applicant’s tender bundle – exhibit 10).
^[44] Exhibit 10 tab 39.
^[45] See emails at exhibit 10 tab 39 and transcript pp 98-100.
^[46] Exhibit 10 tab 39 pp 20 to 30 and transcript pp 108 and 109.
^[47] Document 729.
^[48] Transcript p 116 at line 40.
^[49] John v Connor (1992) 107 ALR 465 at 476 .
^[50] O’Grady v Northern Queensland Co Ltd (1990) 92 ALR 213 at 228 .
^[51] Technical Products Pty Ltd v State Government Insurance Office (1989) 85 ALR 173 at 175 .
^[52] Travelex Ltd v Commissioner of Taxation (2010) 270 ALR 253 at 259 .
^[53] Appendix C of the ATO position paper dated 6 September 2018 (annexure 3 to the First Haruko affidavit).
^[54] Explanatory Memorandum, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2010 (Cth) [4.35] and Lee v Deputy Commissioner of Taxation [2023] FCAFC 22 at [59] and [60] .
^[55] Documents 10, 16, 18, 20, 22, 56, 68, 346, 809, 811.
^[56] Documents 731, 926.
^[57] Documents 34, 747, 749.
^[58] Documents 205, 230, 417, 426-435, 486, 572, 663, 755, 948.
^[59] Documents 212, 468, 546, 569, 574-578, 695, 696, 704-713, 726, 727, 773, 802, 804, 805, 883, 887, 891, 914, 964.
^[60] Documents 724, 774, 776, 778, 857, 863, 865, 872, 884, 886, 888, 890, 957.
^[61] Documents 138, 423-425, 470-484, 688-690, 734, 735, 738, 840, 898-907, 921, 929-946, 951-953, 956, 959-961, 963, 966.
^[62] First Harako affidavit at annexure 3.
^[63] First Harako affidavit at [23].
^[64] See documents 471, 473, 474, 477, 479, 480, 481-482, 688, 690.
^[65] Transcript p 95.
^[66] Transcript p 116.
^[67] Documents 10, 16, 18, 20, 22, 56 68, 346, 809, 811.
^[68] Document 731, 926.
^[69] Exhibit 10 tab 39 p 20.
^[70] King v R [2003] HCA 42 at [18] .
^[71] Subject to some changes made and reflected in the schedule of documents in issue (exhibit 9).
^[72] Office of the Australian Information Commissioner, Freedom of Information Guidelines – Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth), November 2023 at [6.143] (‘Guidelines’).

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