Collection Point Pty Ltd v Commissioner of Taxation
Document type: Decision Impact Statement
Venue: Federal Court of Australia (VID 527 of 2012)
Judgment date: 3 July 2013
Date published: 15 August 2013

Summary of decision:
Outlines the ATO response to this case which concerns whether the Commissioner had to provide certain information under the Freedom of Information Act 1982 ('FOI Act').

Overview of facts:
The taxpayer runs a commercial business to help people retrieve unclaimed money. It applied for information contained in a register kept by the Commissioner under the Superannuation (Unclaimed Money and Lost Members) Act 1999. | The Commissioner could not produce the document requested without writing a new computer program. This led the Commissioner to reject the application under section 24A of the FOI Act because the document did not exist. | Before the AAT, the taxpayer argued that subsection 17(1) of the FOI Act nevertheless required the Commissioner to produce the document. The Tribunal construed subsection 17(1) and found it did not apply to the taxpayer's request because the document could not be produced by a computer 'ordinarily available'. The Federal Court agreed with Tribunal's construction, on appeal. | Issues Decided by the Court | Could subparagraph 17(1)(c)(i) of the FOI Act apply to the taxpayer's request? | The Full Federal Court found that, as a matter of construction, it was open to the primary judge to conclude the Commissioner could not "produce the document by the use of a computer that is ordinarily available" to him within the meaning of subparagraph 17(1)(c)(i) where a new computer program was needed (at [52]). | A computer or other equipment is not "ordinarily available" if it is or becomes available outside the ordinary course of the Agency's operations. Generally, "whether an item is ordinarily available will depend upon the facts of the particular case, which may include whether access to it would involve a departure from the agency's ordinary or usual conduct and operations" (at [48]). | The Court also noted that the 'computer' referred to in subparagraph 17(1)(c)(i) is not merely the computer hardware, but the functioning computer system including software, that can produce the requested document without the aid of other components (at [43]).

Issues decided:
Could subparagraph 17(1)(c)(i) of the FOI Act apply to the taxpayer's request? The Full Federal Court found that, as a matter of construction, it was open to the primary judge to conclude the Commissioner could not "produce the document by the use of a computer that is ordinarily available" to him within the meaning of subparagraph 17(1)(c)(i) where a new computer program was needed (at [52]). A computer or other equipment is not "ordinarily available" if it is or becomes available outside the ordinary course of the Agency's operations. Generally, "whether an item is ordinarily available will depend upon the facts of the particular case, which may include whether access to it would involve a departure from the agency's ordinary or usual conduct and operations" (at [48]). The Court also noted that the 'computer' referred to in subparagraph 17(1)(c)(i) is not merely the computer hardware, but the functioning computer system including software, that can produce the requested document without the aid of other components (at [43]).

ATO view of decision:
The decision of the Court is consistent with the Commissioner's submissions in the case.

Administrative treatment:
Implications for impacted ATO precedential documents (Public Rulings & Determinations etc) | N/A | Implications for impacted Law Administration Practice Statements | N/A

Legislative references: Freedom of Information Act 1982 17
Case references: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (2009) 73 ATR 256 (2009) 2009 ATC 20-134
Subject references: Statutory Interpretation Freedom of Information Act