Case: Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408
Outcome: discussed
these reasons, in my view, Mr Nicholls' first proposition set out at [33] above, expressed as generally as it is, is not fairly arguable. It is inconsistent with s 3E of the TAA. The same applies to his second proposition. The cases which are said expressly to establish those propositions do not do so. Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 concerned the question whether Mr Johns, who had provided information to the ASC under compulsion, was entitled to be heard before that information was provided to a Royal Commission. The provision of the information to the Royal Commission was permitted by s 127(4) of the Australian Securities Commission Act 1989 (Cth) (the ASC Act), but it was held that Mr Johns was entitled to have been heard before the provision of that information on an unrestricted basis (see esp per Crennan J at 430-1). Australian Securities and Investments Commission v Rich [2005] NSWSC 62 ; (2005) 52 ACSR 374 concerned the use to which material seized under a search warrant executed by the AFP and made available to ASIC could then be used by ASIC in the conduct of civil proceedings: see per Austin J at 421-9 [239]-[274] and, in particular, his Honour's conclusion at 429 [274]. That is a different issue to either of the first two propositions of Mr Nicholls. Finally, he referred to Commissioner of Taxation v De Vonk (1995) 61 FCR 564. That case addressed the validity of a decision to issue a notice under s 564 of the ITAA where criminal proceedings against the person to whom the notice had been issued had already been commenced. Foster J (who generally agreed with the plurality judgment of Hill and Lindgren JJ) noted at 568 that it was conceded on behalf of the respondent that information so acquired, provided it was acquired for a proper purpose (which his Honour said was the purpose of obtaining information for the collection and protection of the revenue), could be forwarded to the prosecution to assist in a criminal prosecution. The confined nature of that purpose is recognised by the restriction recognised in s 4E(3) and (4) of the TAA referred to above. Nor do I consider that the third proposition of Mr Nicholls, if I understand it, is fairly arguable. He referred only to Johns v Australian Securities Commission [1993] HCA 56 ; 178 CLR 408 in support of the proposition, but the circumstances of that case were quite different. It may be accepted, as the respondents accept, that the tax secrecy provisions generally make information provided to the DCT under compulsion confidential. There may arise circumstances where the permitted use of that material (whether under s 3E of the TAA or under some other provision) might be construed so as to entitle the provider of it to be heard before that permitted use occurred, at least as to the terms upon which the permitted use might occur. Johns v Australian Securities Commission [1993] HCA 56 ; 178 CLR 408 is an example under s 127 of the ASC Act. But that case does not advance Mr Nicholls' third proposition where the permitted use to rely upon the compulsorily acquired and otherwise confidential information to support an application for a search warrant does not publicly expose the information and indeed the issuing officer is prevented by s 3E(2B) of the TAA from disclosing it. Mr Nicholls through counsel did not advance any detailed contention, based upon the terms of s 3E or its context or in any other respect to support the proposition. Consequently, I would not allow the amended application to be further amended to give effect to the now confined propositions of Mr Nicholls relating to the decision to include in the material submitted to the Magistrate certain information which was coercively acquired from Mr Nicholls or from the two banks. That is simply because I consider his propositions not to be fairly arguable. It follows that I would uphold the claims of the AFP and the DCT that grounds 9.2 and 9.3 of the amended application as presently expressed should also be dismissed for Mr Nicholls' failure to comply with the orders of the Court. There are two further reasons why I would make that order.