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17 Jun 13 AAT power to make non-publication orders - Pham

The Federal Court has found that, when the Administrative Appeals Tribunal made a non-publication order in a taxation case, under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal fell into jurisdictional error. The Tribunal’s decision was quashed and the matter remitted to the Tribunal for determination according to law: FCT v Pham [2013] FCA 579 (Katzmann J, 13 June 2013).

The questions in this case arose in the context of a review of decisions made by the Commissioner when the taxpayers seeking the review were facing criminal charges based on the same facts and when the hearing of the review was to be conducted in private. In view of the pending criminal trial, the taxpayers applied for orders that the Tribunal hearing take place in private, that the Tribunal not publish any of the evidence or documents lodged with the Tribunal or publish in its reasons for decision either their names or the names of their witnesses. The Tribunal made orders accordingly.

In the Federal Court, the Commissioner challenged the second order, namely, that until further order, the Commissioner and the Tribunal not “disclose or publish any of the evidence given before the Tribunal or ... matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal”.

The Court held that the Tribunal fell into jurisdictional error in failing to take into account that the taxpayers were not compelled to answer questions or produce documents in the Tribunal proceedings that could incriminate them, but could invoke the privilege against self-incrimination. It also fell into jurisdictional error by finding, in the absence of any evidence, that aspects of the taxpayers’ defence would be compromised unless a non-publication order were made.

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