La Población adolescente, sus características y contextos de interacción

The sections date back to the first Commonwealth legislation on income tax namely the

Income Tax Assessment Act (ITAA) 1915 (Cth). The only amendment was in 1918, when the

13 _{A taxpayer who is dissatisfied with an assessment made by the Commissioner may object against it in} the manner set out in Part IVC of Taxation Administration Act 1953 (Cth).

14 _{Vale Press Pty Ltd v Federal Commissioner of Taxation (No. 2) (1994) 53 FCR 92.} 15 _{Ibid 100[B-C] (Hill J).}

16 _{Trautwein v Federal Commissioner of Taxation (1990) 56 CLR 63.} 17

Ibid 88 (Latham CJ.)

words ‘for any of the purposes of this Act’ were substituted in place of the words ‘for the purpose of ascertaining the taxable income of any person’. Section 264 has remained unchanged from the 1915 Act.19

In 1933 O. Howard Beale expressed the view that the ATO powers were too wide:

Much dissatisfaction has from time to time been expressed with the methods of Government Departments and their treatment of the public. These methods are largely the result of legislation vesting in public officials extraordinary administrative and quasi-judicial powers which deprive the citizen of many of the safeguards which the common law has given him. Perhaps the most extreme examples of this sort of legislation are to be found in the Income Tax Acts, some sections of which are exceedingly wide in their application. 20

Beale questioned the right of the Commissioner to compel a solicitor to disclose professional communications passing between himself and his client, noting that ‘the Commissioner, on the other hand, takes the view that s. 8721 completely overrides professional privilege.’22 Beale concluded his article with a rally cry:

Recently, in Sydney, a solicitor was called upon by notice s. 87 (1) (b) to give evidence and produce documents relating to the affairs on one of his clients. He refused to do so on the ground of professional privilege, and a prosecution was ultimately instituted against him under the penal provisions of the Act. For reasons best known to the Commissioner, the prosecution was withdrawn, thereby depriving the profession of the benefit of a decision by the Full Court one way or the other. Perhaps this article will stimulate some other solicitor to take the same stand, with consequent advantage to the whole profession!23

The 1973 case of Southwestern Indemnities Limited v Bank of NSW24 was the first case to consider either section 263 or 264. Barwick CJ’s decision emphasised that the sole limitation or qualification on the application of section 263 is that access be sought ‘for the purposes of the Act’;25 he held that section 263 should be given a wide interpretation and ought not to be read down. The Commissioner referred to the Court to the fact that comparable powers in

19

Section 264 ITAA 1915:

(1) _{The Commissioner may by notice in writing require any person whether a taxpayer or} not, including any officer employed in or in connexion with any department of a Government or by any public authority –

(a)

to furnish him with such information as he may require; and

(b) _{to attend and give evidence before him or before any officer authorized by him in that} behalf concerning his or any other person’s income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.

(2) _{The Commissioner may require the information or evidence to be given on oath and} either verbally or in writing, and for that purpose he or the officers so authorized by him may administer an oath.

(3)

The regulations may prescribe scales of expenses to be allowed to persons required under this section to attend.

20 _{O. Howard Beale, “Professional Privilege and the Income Tax Acts” (June 15, 1933) The Australian} Law Journal 71, 71.

21 _{The section 87 referred to is the precursor to section 264 of the ITAA 1936.} 22 _{Ibid 72.}

23 _{Ibid 73.} 24

(1973) 129 CLR 512. 25 _{Ibid 520.}

English legislation had been given a wide interpretation and cited two English judgments26 to make the point.

Section 263 was amended in 1987. 27 The previous section was redesignated as subsection (1) and two new subsections (2) and (3) added.28 This amendment ‘was consequential upon the decision of the High Court in O’Reilly.’29The plaintiff in O’Reilly30 had argued that section 263 did not create an obligation to assist the Commissioner with his investigations. The High Court agreed.

In our opinion s.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. 31

The addition of section 263(3) created an obligation to provide all reasonable facilities and assistance to the Commissioner’s effective exercise of the powers of access. Hill J noted that the taxpayer is obliged to render reasonable assistance, and that this did not include making copies of communications.

… it is doubted whether acting under s 263 the Commissioner could require a citizen to make copies of documents and supply them to him, particularly having regard to the specific authority given by the section to the Commissioner to take copies himself.32

In the case of electronic files, the Commissioner is entitled to passwords, log in information, and assistance in navigating software.33

The 1987 addition of section 263(2) clarified the fact that the ‘authority’ is not a precondition of entry however, where the occupier requests proof of authority, the written or wallet authority must be produced. Failure to produce the authority upon demand may make

26 _{(1973) 129 CLR 512, 514 (A.F. Rath Q.C) citing Clinch v Inland Revenue Commissioners [1974] QB} 76; Wilover Nominees Ltd v Inland Revenue Commissioners [1973] 2 All ER 977.

27 _{Taxation Laws Amendment (No. 2) Act, No. 62, 1987 (Cth).} 28

(1) the Commissioner, or any officer authorized by the Commissioner 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.

(2) An officer is not entitled to enter or remain on or in any building or place under this section if, on being requested by the occupier of the building or place for proof of authority, the officer does not produce an authority in writing signed by the Commissioner stating that the officer is authorized to exercise powers under this section.

(3) The occupier of a building or place entered or proposed to be entered by the Commissioner, or by an officer, under subsection (1) shall provide the Commissioner or the officer with all reasonable facilities and assistance for the effective exercise of powers under this section.

29 _{Commissioner of Taxation and Others v Citibank Ltd (1989) 20 FCR 403, 411 (Bowen CJ and Fisher J)} (footnote omitted).

30 _{O’Reilly and Others v The Commissioners of the State Bank of Victoria and Others (1982-3) 153 CLR} 1.

31 _{Ibid 41 (Mason Murphy, Brennan and Deane JJ).} 32

Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187, 206.

subsequent access activities invalid and unlawful. The entry is itself is an encroachment upon the liberty and privacy of the occupier and thus trespass.

Section 263 will plainly in some, if not all cases, operate to interfere with privacy and in particular that kind of privacy recognised by the rights to quiet possession of land and personal property which are protected by the common law relating to trespass.34

Brennan J in Halliday v Nevill35 reviewed the common law on privacy from the 1765 case of

Entrick v Carrington36 through to the time of his 1984 decision; emphasising the tension between the right of the individual to privacy, and the right of public officials to enter private property and that it is for the legislature to resolve this tension.

There is, of course, a tension between the common law privileges that secure the privacy of individual in their own homes, gardens and yards and the efficient exercise of statutory powers in aid of law enforcement. The contest is not to be resolved by too ready an implication of a licence to police officer to enter on private property. The legislature has carefully defined the rights of the police to enter; it is not for the courts to alter the balance between individual privacy and the power of public officials. It is not incumbent on a person in possession to protect his privacy by a notice of revocation of a licence that he has not given; it is for those who infringe his privacy to justify their presence on his property. There may well be a case for enlarging police powers of entry and search, but that is a matter for the legislature.37