Case: O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1982) 153 CLR 1
Outcome: referred to
In O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1982) 153 CLR 1 the High Court was called upon to determine the validity of certain notices given under the Income Tax Assessment Act 1936 (Cth). The Commissioner of Taxation had power to give the notices and he had delegated that power to Deputy Commissioners. Notices were given which bore a facsimile of the signature of a Deputy Commissioner which was stamped on the notices by the Chief Investigation Officer who had been authorised, by the Deputy Commissioner, to do so. The majority held that the notices were valid. Gibbs CJ (with whom Murphy J agreed) considered (at 12-13) that the Deputy Commissioner's delegated powers could be exercised through "a properly authorized officer". The Chief Investigation Officer was properly authorised notwithstanding the fact that the Deputy Commissioner had no personal knowledge that the officer intended to issue the particular notices. Wilson J (at 30-31) held that delegated power could be exercised through servants or agents. Mason J, in a dissenting judgment, was prepared to countenance the performance of ministerial acts by an agent of a delegate. His Honour said (at 18-19): "Apart from any exercise of his powers of delegation the Commissioner may appoint agents to act on his behalf and in his name. But, having regard to the statutory provisions here, I do not think that the Commissioner can appoint an agent to act on his behalf in exercising a statutory discretion or a statutory power which involves the formation of an opinion, except perhaps on the footing that the Commissioner retains to himself the substantial exercise of discretion or the substantial formation of the opinion, or the exercise of substantial control over the exercise of the discretion or the formation of the opinion, leaving to the agent the ministerial act of communicating the decision or issuing the notice." See generally, Campbell, "The Carltona Doctrine", (2007) 18 PLR 251. 77 The power conferred, by ss 59(7) and 59(9) on the CEO of the ACC or his delegate, Mr Outram, was conferred to facilitate departures from the general rule that information in the possession of the ACC should not be disseminated outside that body. The exercise of the power was conditional on the forming of value judgments as to the appropriateness or desirability or such dissemination. Information could only be communicated to a limited number of agencies. The significance which the legislature attached to the formation of the value judgments is indicated by the fact that, in each case, the judgment was to be formed by the CEO or a delegate drawn from the senior ranks (SES level) of the ACC. There was no evidence to suggest that the occasion for the exercise of power under s 59(7) or 59(9) was so frequent as to give rise to an assumption that the legislature could not have expected the CEO or a delegate personally to exercise the power. The exercise of the power had no direct effect on the rights of third parties but might, indirectly, have such an affect if the agency to whom the information was provided acted on it to the detriment of the third party. 78 These considerations suggest that the CEO or his delegate could not authorise other ACC officers to exercise the powers conferred by s 59(7) and s 59(9). Had Mr Outram purported to authorise Mr Considine or Mr Hellings to form the value judgments which lie at the heart of these statutory discretions, I would have been disposed to hold that the relevant disclosures had been made ultra vires. That is not, however, what occurred.