O'Reilly and Ors. v. Commissioners of the State Bank of Victoria and Ors.

Judges:
Gibbs CJ
Mason J
Murphy J
Wilson J
Brennan J
Deane J
Dawson J

Court:
Full High Court

Judgment date: Judgment handed down 19 April 1983.

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Gibbs C.J., Wilson and Dawson JJ.

The Court has already decided certain of the questions that were raised by this case stated. Those that remain concern the effect of sec. 263 of the Income Tax Assessment Act 1936 (Cth.), as amended (``the Act''). That section reads as follows:

``The Commissioner, or any officer authorized by him in that behalf, shall at all times have full and free access to all buildings, places, books, documents and other papers for any of the purposes of this Act, and for that purpose may make extracts from or copies of any such books, documents or papers.''

The relevant facts were as follows. Messrs. Hughes and Cornell, officers of the Australian Taxation Office, each of whom was duly authorized by the Commissioner for the purposes of sec. 263 of the Act, were, for the purposes of the Act, investigating the financial affairs and dealings of David Mark Lawson and other persons. For the purposes of that investigation Mr. Hughes, on 30 March 1981 commenced, and on 1 and 2 April continued, an examination of documents at the South Blackburn branch of the State Bank of Victoria (``the Bank'') in relation to an account conducted at the branch in the name of ``Lawson, Lawson and Brookshaw''. In his examination Mr. Hughes was assisted by Mr. Castanelli, the accountant of the South Blackburn branch of the Bank, who at first would extract and hand to Mr. Hughes the vouchers which the latter required, and who later obtained boxes of vouchers and allowed Mr. Hughes to extract the particular voucher he wanted. On 6 April 1981, when Mr. Hughes again went to the South Blackburn branch for the purposes of continuing his examination, he was informed by Mr. Castanelli that the Bank would give him access to the Bank premises but no assistance with his investigations. Mr. Hughes was not sure where the documents which he needed were kept. After a conversation with Mr. Allen, the manager of the South Blackburn branch of the Bank, he proceeded to inspect the Bank premises in an endeavour to find the room in which the documents were stored. There were two rooms in the Bank in which at that time vouchers and documents were stored - namely the strongroom and a records room. The strongroom was open, and it in fact contained some documents relating to Mr. Lawson, but Mr. Hughes did not see them. The door to the records room was locked, and Mr. Hughes was unable to enter it.

On the following day Mr. Hughes returned to the South Blackburn branch, accompanied by Mr. Cornell, Mr. Cornell informed Mr. Allen of the provisions of sec. 263 of the Act and then asked Mr. Allen whether bank vouchers were held in the room which Mr. Hughes had found to be locked on the previous day. Mr. Allen replied that bank vouchers were held in that room but he could not say whether those required by Mr. Cornell were there because he did not know which vouchers Mr. Cornell required. In reply to further questions Mr. Allen said that the room was normally kept locked for security reasons, that the door would be unlocked when the bank staff required access, and that he had the custody or control of the key to the room, although he did not have physical possession of it. Mr. Cornell then said that for the purposes of sec. 263 he formally required Mr. Allen to grant to Mr. Hughes and himself access to the vouchers in the room and that if the room was locked he required Mr. Allen to unlock

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ATC 4158

the door and to facilitate their access to the room. Mr. Allen, after making a telephone call, said that on the advice of the Bank's solicitor he must refuse Mr. Cornell's request. Mr. Hughes went to the door of the records room and found that it was locked. Mr. Cornell and Mr. Hughes then left the Bank. In fact on both 6 and 7 April 1981 the key to the records room was in the top drawer of the filing cabinet in Mr. Allen's office. That drawer was not locked. Neither Mr. Hughes nor Mr. Cornell asked for the key and Mr. Allen did not tell either of them where the key was to be found.

In these circumstances the Court is asked the following questions.

``1. Did each of the Commissioner, the Deputy Commissioner, Cornell and Hughes have full and free access to the books, documents and other papers situate at the South Blackburn branch of the Bank, on the 6th and 7th days of April 1981, within the meaning of sec. 263 of the Act?

2. Was the Bank obliged and required under sec. 263 of the Act:

• (a) to tell Hughes and Cornell precisely where the papers and documents for which they had asked, were situated?
• (b) physically to deliver to Hughes and Cornell the books, papers and documents for which they had asked?
• (c) to take any and if so what steps to facilitate inspection by Hughes and Cornell of the papers and documents for which they had asked?''

The answers to these questions depend on the proper construction of sec. 263. That section grants to the Commissioner, and to any authorized officer, ``full and free access'' to, inter alia, all buildings and documents, for any of the purposes of the Act. The ordinary dictionary meaning of ``access'' is ``a way or means of approach''. The words ``shall have'' in the section obviously cannot indicate mere futurity; they are used to confer a right. The words of the section, considered as a whole, confer upon the Commissioner a right to enter buildings and look at documents for the purposes of the Act. The right is to be ``full and free'', which means, in effect, that it is unrestricted, except, of course, by the requirement that it may only be exercised in good faith for the purposes of the Act.

The question is whether the section imposes a duty upon any person to take active steps to assist the Commissioner to enjoy the right which the section gives him. The contention for the Commissioner is that the section creates an imperative obligation; in other words that it obliges any person who is able to provide the Commissioner with the means of entry into a building, or the means of looking at a document, to which the Commissioner has a right of access, to do so. It was submitted that in the present case the officers of the Bank were obliged to tell Messrs. Hughes and Cornell the precise location of the documents which they wished to see, and to take them to those documents so that they might read them and if they wished copy them. Further, it was submitted, it was the duty of the Bank officers to unlock the door of the records room, which in fact contained documents, when required to do so by Mr. Cornell.

In our opinion sec. 263 on its proper construction does not impose an obligation on anyone to take positive steps to enable the Commissioner more easily or effectively to enjoy his right of access. We agree with the conclusion provisionally reached by Mason J. in
F.C. of T. v. ANZ Banking Group Ltd. 79 ATC 4039 ; (1979) 143 C.L.R. 499 . In that case Mason J. said, at ATC p. 4052; C.L.R. p. 535, that sec. 263 is a general provision which makes lawful that which otherwise would be unlawful and he went on to say, at ATC p. 4055; C.L.R. p. 540:

``... the section does not impose an obligation on the owner or occupier of premises or on the person having custody or control of a safe deposit box, to produce a key to the Commissioner or his representative to enable him to gain access. It is not a section which arms the Commissioner with a coercive power or which imposes obligations on persons to make the statutory right of access effective.''

The section states the nature of the Commissioner's right in wide and unqualified terms but it does not expressly provide that any person is under a duty to assist the Commissioner to exercise the right.

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There is nothing in the words of the section that supports the view that it should be implied that there was created a positive duty to provide assistance to the Commissioner. The section neither indicates what persons would be subject to the suggested duty, nor defines the limits of the duty. If any person were obliged to do all that he reasonably could to assist the Commissioner to obtain access to a place or document, the duty would be indeterminate in scope, since the degree of assistance required might vary widely from one situation to another. The right of access is very broad and general, and, as Gibbs A.C.J. pointed out in F.C. of T. v. ANZ Banking Group Ltd., at ATC p. 4047; C.L.R. p. 525, is not expressed to be subject to the production of any warrant or authority, or to be limited as to time or in any other way. The Courts would be slow to imply in such a section a duty of an undefined kind to assist the Commissioner to enjoy his right.

There are other strong reasons for holding that the section does not create any positive duty to assist the Commissioner. The section must of course be construed in the light of the other sections of the Act, and in particular of sec. 264. Subsection (1) of that section provides as follows:

``The Commissioner may by notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority -

• (a) to furnish him with such information as he may require; and
• (b) to attend and give evidence before him or before any officer authorized by him in that behalf concerning his or any other person's income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.''

This subsection provides a means of giving effect to the right conferred by sec. 263 (although that is not its only purpose) and stands in marked contrast to that section. The earlier section does no more than declare a right, whereas the later section expressly enables the Commissioner to impose specific obligations on particular persons. A person who fails to comply with a requirement of the Commissioner given under sec. 264 may be guilty of an offence under sec. 223 or 224 of the Act. The only section which creates an offence which may be relevant to the provisions of sec. 263 is sec. 232, which provides, inter alia, as follows:

``Any person who obstructs or hinders any officer acting in the discharge of his duty under this Act or the regulations shall be guilty of an offence.''

Anyone who obstructed or hindered an officer of the Commissioner who, acting in the discharge of his duty, sought to exercise the right of access conferred by sec. 263 would be guilty of an offence against sec. 232 of the Act. There is a difference between obstructing or hindering the Commissioner on the one hand, and merely failing to provide active assistance to him on the other. Anyone who took active steps to prevent the Commissioner from entering a building or inspecting documents would be infringing the right given to the Commissioner by sec. 263 and would at the same time be guilty of an offence against sec. 232. There is no reason in the light of these sections to imply that a person who fails to take active steps to assist the Commissioner to exercise the right of access is guilty of a breach of duty or an offence.

The legislative history of sec. 263 and 264 supports this conclusion. Their progenitors appeared as sec. 55 and 56 in the original Income Tax Assessment Act 1915. Section 55 was rather more specific than is sec. 263 in its description of the purpose for which the Commissioner or any officer authorized by him was to have access. It was to be ``for the purpose of ascertaining the taxable income of any person''. Section 56 in substance empowered the Commissioner by notice in writing to require any person to attend and give evidence ``concerning any income or assessment'', and to produce all books, documents and other papers in his custody or control relating thereto. No power was then given, corresponding to sec. 264(1)(a), to require any person to furnish the Commissioner with ``such information as he may require''. That power was first conferred on the Commissioner by amending Act No. 18 of 1918 (sec. 37). At the same time the phrase ``concerning any income or

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ATC 4160

assessment'' was expanded, in form if not in effect, to read ``concerning his or any other person's income or assessment''. The same amending Act brought sec. 55 into the same form which it now bears in sec. 263, by substituting for the words ``for the purpose of ascertaining the taxable income of any person'', the words, ``for any of the purposes of this Act''. Thereafter, apart from the addition of some further words which are not of any materiality in this case, the sections have retained this form through successive legislation to the present time. It would seem that experience gained in the early administration of the original Act demonstrated that the mere declaration in sec. 55 that the Commissioner shall have ``full and free access'' did not suffice to secure for him all the information he desired, with the result that sec. 56 was amended to enable him to gain that information by coercive means. One must not attempt to read too much into the legislative history of a section of an Act, but this history tends to support a limited view of sec. 263.

Question 1 inquires whether the Commissioner and his officers had full and free access to the books, documents and other papers situated at the South Blackburn branch of the Bank on 6 and 7 April 1981, within the meaning of sec. 263. In our opinion the fact that the door of the records room was locked meant that Messrs. Hughes and Cornell did not have full and free access to the records room or to the documents in it. To say that, however, is not to say that the Bank or any particular officer obstructed or hindered the officers of the Commissioner. The case stated does not ask the Court to answer that question and its consideration could be affected by facts which are not disclosed in the case.

As to Question 2, for the reasons given we consider that the Bank officers were not obliged to tell Messrs. Hughes and Cornell where the documents were, or to deliver the documents to them, or to facilitate their inspection in any other way.

We would accordingly answer Question 1, ``No'', and Question 2, ``No''.