Melbourne Law School - Theses
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ItemA review of the federal investigatory powers of the Federal Commissioner of Taxation under sections 263 and 264 of the Income Tax Assessment Act 1936: a critical evaluation of the balance struck by the courts between the Commissioner's access powers and the rights of the individual( 2001)Section 264 of the Income Tax Assessment Act 1936 provides the Commissioner of Taxation with the power to seek information and documents. Section 263 provides the Commissioner with power to access premises. The present Commissioner has demonstrated a willingness to once again test the limits of section 264 before the Courts. The purpose of this paper is to examine where the balance of judicial authority has placed the boundaries on section 263 and more particularly 264 and whether any movements in those boundaries can be justified given the policies underlying section 264 and individual rights (such as the common law right of a client to legal professional privilege) or whether the decisions in respect of sections 264 and 263 are inconsistent with the approach of the Courts to investigatory powers in other contexts. In this context the paper examines a number of specific issues in respect of sections 264 and 263 including in particular the interaction between sections 263 and 264 and legal professional privilege. Until recently it had been judicially accepted that section 264 does not abrogate legal professional privilege. However in recent times the Commissioner has sought to challenge the scope of legal professional privilege in the context of section 264. The paper will evaluate recent decisions which suggest that section 264 abrogates legal professional privilege.