Disclosure of corporate identity information acquired during duty collection safe under GIPA

Key Points

• There is an overriding public interest against the disclosure of identity information acquired as a part of the duty collection process. The disclosure of such information breaches the secrecy provisions set out in the Tax Administration Act 1953 (Cth) and has a chilling effect on the willingness of tax payers to reveal their identity. Thereby adversely affecting the ability of taxation agencies to exercise their functions. ​

The Government Information (Public Access) Act 2009 (Act) establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. In these types of applications, the Civil and Administrative Tribunal (NCAT) must review the information being sought, consider the public interest considerations for and against disclosure, and determine where the balance lies. In this regards, NCAT must undertake a balancing exercise. Under the Act, there will be an overriding public interest against the disclosure of government information if, and only if, the public interest considerations against disclosure outweigh the considerations in favour of disclosure.

In the matter of Mookhey v Department of Finance, Services and Innovation [2018] NSWCATAD 128, Mr Mookhey (Applicant) sought access to the identity of, and amounts of mortgage duty and marketable securities duty paid by, the top 100 corporations in NSW. On 18 January 2018, the Department of Finance, Services and Innovation (Agency) released the information to the Applicant in a redacted form (without the names and company numbers of the individual corporations). The Applicant was not satisfied with the Agency’s decision and sought administrative review by the Civil and Administrative Tribunal (NCAT).

For his part, the Applicant submitted that the disclosure of the identity information was reasonably likely to:

1. increase interest in the transparency of tax laws and tax transparency measures, both compulsory and voluntary, aimed at ensuring corporations pay their tax and manage their tax affairs transparently;
2. inform active debate on the interplay between taxation policies, productivity and economic growth, and the need for greater information on State corporate tax duties, to assess the transmission effects of state tax reductions;
3. inform debate on the interplay between taxation policies, wage growth and equality; and
4. inform debate on financing of government including which taxes or duties are the most efficient.

The Agency asserted that the disclosure of the identity information was not necessary to inform these debates at a macro level as suggested by the Applicant and that in any event, tax transparency is not a feature of revenue collection in NSW.

The Agency submitted that the disclosure of the identity information was reasonably likely to:

1. breach the secrecy provisions of the Taxation Administration Act which required the Agency to keep confidential information regarding the finances and affairs of taxpayers except in special circumstances;
2. prejudice the supply to the Agency of confidential information by eroding expectations of confidentiality which taxpayers have, partly due to the legislative secrecy provisions and partly due to privacy statements on various forms that taxpayers are required to complete;
3. prejudice the effective exercise of the Agency’s functions by dissuading taxpayers from revealing their identity information; and
4. result in the disclosure of information provided to the Agency in confidence (as a part of the duty collection process).

NCAT accepted these considerations against disclosure and agreed that the considerations deserved considerable weight. On this basis NCAT held that while the disclosure of the identity information was reasonably likely to inform the public interest in:

1. corporations complying with their tax obligations; and
2. the Agency’s accountability for ensuring corporate compliance with those obligations,

ultimately, the public consideration against disclosure outweighed the public interest considerations in favour of disclosure and so the Applicant’s request was denied.

Post by John Kell and Vanja Simic