By Michael Legg and Stephen Speirs -
Snapshot
- In Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) the Full Federal Court found that the Harman obligation does not prevent compliance with a notice from the Commissioner of Taxation, issued in reliance on the power to require a person to produce documents.
- The content of the Harman obligation is such that it recognises and is shaped by inconsistent legal obligations, such as regulatory powers mandating production of documents.
- The reasoning applied in relation to the Commissioner of Taxation’s power is equally applicable to other regulators’ powers to require the production of documents.
The Full Federal Court of Australia (Kenny, Robertson and Thawley JJ) in Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) [2018] FCAFC 38 (‘DCT v Rennie Produce’) were required to address the interaction between the Commissioner of Taxation’s power to require the production of documents and the common law obligation that where a party obtains documents during litigation those documents cannot be used for any other purpose, the so-called Harman obligation or implied undertaking.
Coercive investigatory powers
Section 353-10(1)(c) of Sch 1 to the Taxation Administration Act 1953 (Cth) (‘TAA’) provides the Commissioner with power to require a person to ‘produce to the Commissioner any documents in your custody or under your control for the purpose of the administration or operation of a taxation law’. It is the successor of the former s 264 of the Income Tax Assessment Act 1936 (Cth) (‘ITAA 1936’).
