RYAN v COMMISSIONER OF TAXATION [2026] SASC 53

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE DAVISON) DCCRM-23-020391 Appellant: ADAM MICHAEL RYAN Counsel: MR R PICCOLO - Solicitor: DANNI STEPHENS LEGAL Respondent: COMMISSIONER OF TAXATION Counsel: MS G WALKER SC WITH MS J BATTIST - Solicitor: AUSTRALIAN GOVERNMENT SOLICITOR Hearing Date/s: 05/11/2025 File No/s: SCCRM-25-030767 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. RYAN v COMMISSIONER OF TAXATION [2026] SASC 53 Judgment of the Honourable Justice McIntyre 23 April 2026 APPEAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM DISTRICT COURT CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUDULENTLY OR DECEPTIVELY OBTAINING MONEY, VALUABLE, FINANCIAL BENEFIT OR ADVANTAGE CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUBPOENAS - SETTING ASIDE OR OTHER RELIEF This is an appeal against a ruling of a Judge of the District Court of South Australia granting an application by the respondent to set aside a subpoena issued to the Commissioner of Taxation. The ruling relates to criminal charges against the appellant proceeding in the District Court. The respondent filed an interlocutory application in the appeal proceedings seeking an order dismissing the notice of appeal under r 188.1 of the Joint Criminal Rules 2022 (SA). That application and the appeal proper were heard together. In relation to the interlocutory application, the respondent contends that the appeal is not competent. It is said that the appeal is brought in the criminal jurisdiction under s 43 of the District Court Act 1991 (SA) (‘DCA’) which, when read in conjunction with s 45 of the DCA and Part 6A of the Criminal Procedure Act 1921 (SA) (‘CPA’), does not provide the appellant with a right of appeal. The appellant submits that Part 6A of the CPA does not apply and that the appellant has a right of appeal to the Supreme Court constituted of a single judge. In relation to the appeal proper, the appellant contends that his right to a fair trial requires disclosure of the subpoena material and that the primary judge erred in finding that the Commissioner was not compelled under s 335-75 of the Taxation Administration Act 1953 (Cth) (‘TAA’) to disclose the subpoenaed documents. The respondent submits that the appellant’s submissions are misconceived and that the ruling demonstrates no error by the primary judge. -- 1 of 14 -- Held, granting the interlocutory application and dismissing the notice of appeal: 1. The ruling of the primary judge is an issue capable of review on appeal following conviction under Part 6A of the CPA. The appeal is therefore not competent pursuant to s 45 of the DCA and Part 6A of the CPA. Joint Criminal Rules 2022 (SA) rr 123.4, 188.1, 191.1; Criminal Code 1995 (Cth) ss 11.1(1), 134.2(1); Taxation Administration Act 1953 (Cth) schedule 1 – ss 335-10, 335-25, 335-30, 335-B, 335-75; District Court Act 1991 (SA) ss 3, 8, 43, 45; Criminal Procedure Act 1921 (SA) Part 6A, ss 151, 157(1)(d), 157(1)(e), 161; Supreme Court Act 1935 (SA) s 50; Uniform Civil Rules 2020 (SA) r 218.17; Income Tax Assessment Act 1997 (Cth) ss 16(3), 995.1; Tax Agent Services Act 2009 (Cth); Crimes Act 1914 (Cth); Administrative Decisions (Judicial Review) Act 1977 (Cth); Crimes (Taxation Offences) Act 1980 (Cth), referred to. Sadler v Director of Public Prosecutions (2021) 138 SASR 190; Federal Commissioner of Taxation v Tamarama Fresh Juices Australia Pty Ltd & Others (2017) 252 FCR 471; Propend Finance Pty Ltd & Others v Commissioner of Australian Federal Police & Others (1994) 72 A Crim R 278, discussed. R v Garrett (1988) 49 SASR 435; R v Millhouse (1980) 24 SASR 555; Commissioner of Taxation v Tang (2006) 96 SASR 55; R v Allen (2002) 81 SASR 434; Legal Services Commission v JHW (2012) 223 A Crim R 234; Norbis v Norbis (1986) 161 CLR 513; R v Ryan (District Court of South Australia, Davidson DCJ, 10 October 2025), considered. -- 2 of 14 -- RYAN v COMMISSIONER OF TAXATION [2026] SASC 53 Single Judge Appeal: Criminal McIntyre J 1 This is an appeal from a ruling of a Judge of the District Court of South Australia granting an application by the respondent, the Commissioner of Taxation, to set aside a subpoena which had been issued to the Commissioner. 2 The respondent issued an interlocutory application seeking an order dismissing the notice of appeal under r 188.1 of the Joint Criminal Rules 2022 (SA) (‘JCR’). 3 I heard both the interlocutory application and the substantive appeal. For the reasons that follow I grant the interlocutory application and dismiss the notice of appeal. Background 4 The appellant has been charged on Information with four counts of attempting to obtain a financial advantage by deception, contrary to ss 11.1(1) and 134.2(1) of the Criminal Code 1995 (Cth) (‘the Code’) and three counts of obtaining a financial advantage by deception contrary to s 134.2(1) of the Code. 5 The appellant filed a subpoena on 24 October 2024 in relation to documents and material generated or retrieved by the Australian Taxation Office (‘ATO’) as part of Operation Kampala. The relevant details of that investigation are set out in the appellant’s written submissions.1 The appellant was identified as a person of interest during that operation. The charges were brought against him alleging that he engaged in a methodology common to other entities identified in Operation Kampala. The appellant contended, as the basis for the subpoena, that whilst he is charged separately, the offending alleged as against him cannot be properly understood without “complete knowledge of the nature of the whole methodology identified by investigators as part of Operation Kampala”.2 6 The ATO sought to set aside the subpoena on the basis that a taxation officer cannot be compelled to disclose protected information that was acquired by the taxation officer under s 355-75 of schedule 1 of the Taxation Administration Act 1953 (Cth) (‘TAA’). The application to set aside the subpoena was made under r 123.4 of the JCR. Following argument, the Judge at first instance ordered that the subpoena be set aside. 1 FDN 7 at [13]–[16]. 2 FDN 7 at [19]. -- 3 of 14 -- [2026] SASC 53 McIntyre J 2 The notice of appeal 7 The appellant lodged this appeal on 1 August 2025. The appeal was not instituted within time, however, the time for filing the appeal was extended by consent on 5 November 2025. 8 The notice of appeal sets out a single ground of appeal as follows: The judge erred in concluding “that the relationship between the disclosure sought by the [appellant] and the carrying into effect provisions of taxation law is too generalised and remote. It is not sufficient to amount to a necessity for the purposes of s 355-75 [of Sch 1 to the Taxation Administration Act 1953 (Cth)]”. The interlocutory application 9 The respondent seeks the dismissal of the appeal under JCR r 188.1 on the basis that the appeal is brought under s 43(1) of the District Court Act 1991 (SA) (‘DCA’) in the Court’s criminal jurisdiction. The respondent says that, when read in conjunction with s 45 of the DCA and Part 6A of the Criminal Procedure Act 1921 (SA) (‘CPA’), s 43 of the DCA does not provide the appellant with a right of appeal. 10 The parties addressed both the interlocutory application and the substantive appeal. I will deal with the interlocutory application first. Is the appeal competent? 11 It is common ground that Part 6A of the CPA does not apply in the circumstances of this case because: • Section 157(1)(d) of the CPA limits a defendant’s right to appeal against an interlocutory judgment in criminal proceedings to decisions adverse to the defendant made on an “issue antecedent to trial”. • An “issue antecedent to trial” is narrowly defined in s 151 of the CPA as meaning a question (whether arising before or at trial) as to whether proceedings on an information or a count of an information should be stayed on the ground that the proceedings are an abuse of process of the court. • Parliament created a different right for the Director of Public Prosecutions (‘DPP’), who by s 157(1)(e) of the CPA may bring an interlocutory appeal with permission of the Full Court. • Section 161 provides a right of appeal to a person against whom an “ancillary order” has been made, which is limited to certain orders made under the sentencing law, namely intervention or restraining orders, restitution orders or compensation orders. It does not apply to the appellant. -- 4 of 14 -- [2026] SASC 53 McIntyre J 3 12 Accordingly, the issue is whether the appellant has a right of appeal under the DCA. Part 7 of the DCA is entitled “Appeals and reservation of questions of law” and relevantly contains the following sections: 43—Right of appeal (1) A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action. (2) The appeal lies— …………. (b) in the case of an interlocutory judgment given by a Judge—to the Supreme Court constituted of a single Judge; ……………….. 45—Non-application to criminal proceedings This Part does not apply in respect of appeals and reservations of questions of law in criminal proceedings to which Part 6A of the Criminal Procedure Act 1921 is applicable. The contentions 13 The respondent contends that the effect of s 45 of the DCA is that s 43 does not apply in respect of appeals and reservations of questions of law in criminal proceedings to which Part 6A of the CPA is applicable. The respondent’s application to set aside the subpoena was made under r 123.4 of the JCR. It is contended that the respondent’s application did not invoke the civil or declaratory jurisdiction of the District Court and that:3 The appellant himself considers this matter to be within the Court’s criminal jurisdiction as he determined not to seek leave to appeal as is required for any appeal against an interlocutory civil decision of a Judge of the District Court, and filed the appeal in the Court’s criminal jurisdiction. 14 The appellant on the other hand contends that the appeal is competent because: • Section 43(1) of the DCA provides that a party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in that action. • Section 3(1) of the DCA defines “action” as any civil or criminal proceedings in the District Court, including proceedings for a contempt of the District Court. • Section 43(2)(b) of the DCA then relevantly provides that, in the case of an interlocutory judgment given by a judge of the District Court, an 3 FDN 12 at [7]. -- 5 of 14 -- [2026] SASC 53 McIntyre J 4 appeal lies to the Supreme Court constituted by a single judge. “Judgment” is defined as “a judgment, order or decision and includes an interlocutory judgment or order”. • The relevant “action” is the prosecution of the appellant in the District Court, which is in the nature of a criminal proceeding, and the appellant is a party to that action as the defendant. The order by the judge of the District Court to set aside the subpoena issued to the Commissioner is the relevant “judgment”. • The nature of the judgment was interlocutory in nature. Thus, it is said that the appellant has a right of appeal against that order; the appeal lies to the Supreme Court, constituted by a single judge. Consideration 15 The issue for determination relates to the effect of s 45 of the DCA upon appeals such as the present appeal brought under s 43(1) of the DCA. 16 A similar issue arose in Sadler v Director of Public Prosecutions4 (‘Sadler’). Bleby JA, whilst noting that it was not strictly necessary to determine the issue given his ultimate conclusion, nonetheless considered the question which he posed as follows:5 The question is whether s 45 removes from the ambit of s 43 all criminal appeals, notwithstanding the use in s 43 of terms that extend to criminal matters by their definitions, or simply those that are made specifically the subject of Part 6A of the CPA. 17 President Kelly and Livesey JA (as he then was) agreed with Bleby JA as to the ultimate conclusion but both reserved the proper construction of s 43 and whether s 45 ought be given a broad or restrictive interpretation to a case where it was necessary to decide the issue. In reserving that question, Livesey JA noted that:6 Whilst the analysis provided by Bleby JA regarding the analogies to be drawn from the jurisdiction of the Supreme Court and cases such as R v Garrett is,7 respectfully, persuasive, I would prefer to reserve my view on the proper meaning of s 43 and the decisions of Perry J in Commissioner of Taxation v Tang8 and of Lander J in R v Allen.9 18 Sadler concerned claims of legal professional privilege over documents in the appellant’s solicitor’s file that had been seized by the Commissioner and later returned pursuant to a subpoena issued by the appellant. The Commissioner applied for orders that privilege was not established, had been waived, or was displaced by fraud. The trial judge upheld the privilege claims in respect of some 4 (2021) 138 SASR 190 (‘Sadler’). 5 Ibid at [29]. 6 Ibid at [4]. 7 (1988) 49 SASR 435 (‘Garrett’); R v Millhouse (1980) 24 SASR 555. 8 Commissioner of Taxation v Tang (2006) 96 SASR 55. 9 R v Allen (2002) 81 SASR 434. -- 6 of 14 -- [2026] SASC 53 McIntyre J 5 documents but found that others were either not privileged or that any privilege attaching to them had been waived. The appellant appealed against those adverse rulings. The respondent raised a preliminary objection as to the competence of the appeal. The Court held that the appeal was competent and that s 45 of the DCA did not exclude the operation of s 43, because the application by a non-party put in issue the appellant’s substantive privilege rights and engaged the Court’s civil, declaratory jurisdiction rather than arising incidentally in the exercise of its criminal jurisdiction. 19 The more difficult issue is, as in the present case, whether s 45 of the DCA restricts the right of a party to proceedings to appeal under Part 6A of the CPA. Bleby JA’s analysis of the relevant case law and legislation in Sadler10 led him to conclude that Part 6A operated as a code preventing an accused in criminal proceedings from appealing an interlocutory decision in relation to the production of documents. As his Honour observed:11 There is then the potential for anomaly as between the positions of the non-party and the criminal defendant. In the ordinary course of a return on a subpoena, Legal Services Commission v JHW12 recognises that s 50 (and by extension, s 43 of the DCA) confers appellate rights on the non-party affected by the determination of a claim of privilege in the criminal jurisdiction, because they are a non-party. There are sound policy reasons for that, as the non-party’s substantive rights have been placed in issue. The criminal defendant has no such reciprocal right of appeal, the determination of privilege on the non-party’s claim being incidental to the criminal proceedings. 20 Whilst recognising that Bleby JA’s comments on this topic were largely obiter and that the other members of the Court did not join with him, I have carefully considered them and, having read the authorities to which he referred, I find myself in agreement with his conclusions and the reasons for them. 21 The present matter is however factually distinct from Sadler. In seeking to set aside the subpoena, the respondent, a non-party, did not place in issue any substantive privilege of the “criminal defendant”, but instead relied upon an asserted statutory prohibition on disclosure of the material sought. The issue is therefore whether the trial judge, in resolving that question, was exercising the District Court’s civil jurisdiction to make declarations of rights and obligations under s 8(1) of the DCA, or whether the ruling was merely incidental to the exercise of the Court’s criminal jurisdiction. 22 The application was treated by all parties as a routine pre-trial matter in criminal proceedings. While not determinative, that characterisation is, in my view, correct. The subpoena was issued on the basis that the material was said to be relevant to the defence case, insofar as it concerned the investigation giving rise to the charges. The order setting aside the subpoena did not affect the appellant’s rights or entitlements in the same way as a determination of privilege would. 10 Sadler at [30]–[75]. 11 Ibid at [71]. 12 (2012) 223 A Crim R 234; [2012] SASCFC 47. -- 7 of 14 -- [2026] SASC 53 McIntyre J 6 Rather, it is analogous to a ruling on the admissibility of evidence—an issue capable of review on appeal following conviction under Part 6A of the CPA. 23 The policy considerations that lead to Bleby JA’s conclusions in Sadler are apposite. In R v Garrett,13 the Court of Appeal considered whether s 50 of the Supreme Court Act 1935 (SA) (‘SCA’) authorised an appeal from a refusal by a Supreme Court judge to stay a rape trial as an abuse of process. Section 50 was, for practical purposes, similar in effect to s 45 of the DCA. Justice Cox, with whom King CJ and Jacobs J agreed, said:14 I have observed that to allow appeals from interlocutory orders on the criminal side would in most cases have undesirable results. It would cause delay and expense, and could sometimes be used quite oppressively, particularly if a power to institute such an appeal were conceded to the Crown as well as the accused. In the case of most interlocutory applications the objection of the accused, if valid, will still be available to him in the event of his being convicted. I acknowledge that this will not always be the case and, even where it is, it will sometimes transpire that a lot of time and money and anxiety could have been saved had the procedural objection upon which the convicted person eventually succeeds been taken on appeal before the trial began. On balance, however, I am not persuaded that it would be in the interests of justice to permit an immediate appeal against a judge’s making or refusing to make, an interlocutory order with respect to a criminal trial. 24 Accordingly, I consider that the respondent’s interlocutory application ought to be granted and the appeal dismissed under r 188.1 of the JCR. The substantive appeal 25 Given my conclusion on the interlocutory application, it is unnecessary to determine the substantive appeal. Nevertheless, in the event that I am found to have erred in making that ruling, I will address the issues raised by the substantive appeal. 26 If the appellant has a right of appeal in this matter, it is my view that it is an appeal brought within the Court’s criminal jurisdiction and ought, in accordance with r 191.1 of the JCR, be by way of rehearing. I observe, however, that this is not significantly different from the nature of an appeal under s 43 of the DCA which is conducted in accordance with r 218.17 of the Uniform Civil Rules 2020 (SA). In either case, the appellant must demonstrate an error of a nature that warrants the intervention of the courts so as to disturb the judgment of the trial judge. It is necessary to determine whether the findings made by the primary judge were affected by material error.15 27 The question raised before the trial judge and on this appeal is a question of statutory interpretation. The appellant contends that the trial judge erred in finding 13 (1988) 49 SASR 435. 14 Ibid at 451. 15 Norbis v Norbis (1986) 161 CLR 513. -- 8 of 14 -- [2026] SASC 53 McIntyre J 7 that s 355-75 of sch 1 to the TAA prevented the Commissioner from being compelled to disclose the subpoenaed documents. The statutory regime 28 The relevant statutory framework is contained in division 355 of sch 1 to the TAA. Section 355-10 identifies the objects of the division as protecting the confidentiality of taxpayers’ affairs by imposing strict obligations on taxation officers. Thie encourages accurate disclosure to the Commissioner, while also permitting disclosure of protected information for defined purposes that support effective government administration and law enforcement. 29 Section 355-25(1) makes it an offence for a taxation officer to disclose protected information to another entity, or to a court or tribunal, except to the entity to whom the information relates or to a “covered entity”. Section 355-30 defines “protected information” as information obtained under or for the purposes of a taxation law which relates to the affairs of, and identifies or is capable of identifying, an entity. A “taxation officer” includes the Commissioner and officers performing duties within the ATO. A “covered entity”, as defined in s 355-25(2), generally includes authorised representatives such as tax agents or lawyers. 30 The term “taxation law” has the meaning given by s 995.1(1) of the Income Tax Assessment Act 1997 (Cth) (‘ITAA’), being an Act of which the Commissioner has the general administration, legislative instruments made under such an Act, or the Tax Agent Services Act 2009 (Cth) and its regulations. 31 It was uncontroversial before the primary judge that the material sought under the subpoena constituted protected information, including information relating to numerous third parties, and that compliance with the subpoena would constitute an offence under s 355-25(1) unless an exception under subdivision 355-B applied, or some other Commonwealth law prevailed so as to require production. 32 Subdivision 355-B provides for limited circumstances in which the Commissioner may make voluntary disclosures of protected information. In the present matter, the Commissioner had already made voluntary disclosures of certain subpoenaed items. 33 Subdivision 355-B also contains s 355-75, which deals specifically with the limits on disclosure of protected information to courts and tribunals. Section 355-75 provides that a taxation officer is not required to disclose protected information to a court or tribunal except “where it is necessary to do so for the purpose of carrying into effect the provisions of a taxation law”. The party’s contentions 34 The appellant contends that his right as an accused person to a fair trial requires disclosure of the material sought. He further contends that there was a sufficient nexus between the disclosure sought and the carrying into effect of the -- 9 of 14 -- [2026] SASC 53 McIntyre J 8 provisions of a taxation law for the purposes of s 355-75 and that the trial judge’s finding to the contrary was plainly wrong. 35 The respondent on the other hand contends that the appellant’s submissions are misconceived and ought not be accepted. It is said that the term “taxation law” has the meaning given by s 995.1(1) of the ITAA, for present purposes an Act of which the Commissioner has the general administration, and that the Code is not such an Act. As such, it is contended that the disclosure of protected information to the court is not for the purpose of carrying into effect the provisions of taxation law and that the exception in s 355-75 does not apply. It is said that the primary judge correctly referred to the direct relationship which required finding that the relationship between the disclosure and the taxation law must be “a direct and immediate connection, as opposed to being collateral or consequential.”16 The respondent contends that the judgment demonstrates no error in reasoning or conclusion on the part of the trial judge. Consideration 36 The appellant contends that his right to fair trial requires disclosure of material sought. This is not, however, an application by the appellant which alleges any breach of the prosecuting authority’s duty of disclosure. The appeal relates to a subpoena issued to the respondent. The appellant does not contend that the subpoenaed documents would be subject to any common law duty of disclosure. Even if they were, that is a matter that ought to be taken up with the prosecution. The issue is not whether these documents ought to be disclosed rather, the issue is whether the Commissioner can be compelled to produce the documents in response to a subpoena issued by the Court under s 355-75. 37 Subdivision 355-B serves to define, exhaustively and deliberately, the circumstances in which protected tax information may be disclosed notwithstanding the general prohibition in s 355-25. Its purpose is twofold. 38 First, it gives effect to the confidentiality objective stated in s 355-10 by maintaining a strict default rule against disclosure of protected information by taxation officers. Disclosure is treated as exceptional, not discretionary. 39 Second, subdivision 355-B identifies limited and specific exceptions where disclosure is permitted or required in order to facilitate effective government administration and law enforcement. Those exceptions are tightly confined and carefully calibrated to particular purposes, recipients and uses of the information. 40 In that way, the subdivision strikes the balance chosen by Parliament between protecting taxpayers’ confidential affairs and enabling the Commissioner to disclose information where necessary to carry out statutory functions. Importantly, that balance is not left to judicial discretion or to ad hoc assessments of fairness or 16 R v Ryan (District Court of South Australia, Davidson DCJ, 10 October 2025) at [20]–[21]. -- 10 of 14 -- [2026] SASC 53 McIntyre J 9 utility. It is achieved by prescriptive rules that delineate when disclosure is lawful and when it remains prohibited. 41 Within that structure, s 355-75 performs a specific function by limiting the ability of courts and tribunals to compel disclosure of protected information. It reflects a legislative decision that, even in judicial proceedings, protected information is not to be disclosed unless doing so is necessary for the purpose of carrying into effect the provisions of “a taxation law”. 42 Accordingly, subdivision 355-B operates as a comprehensive code governing disclosure of protected tax information, reinforcing confidentiality as the norm while permitting disclosure only in clearly defined and strictly controlled circumstances. 43 The primary judge found that the appellant’s prosecution by the Commonwealth Director of Public Prosecutions pursuant to the Code did not constitute the respondent giving effect to duties under a “taxation law” within the meaning given by s 995.1(1) of the ITAA. In contending otherwise, the appellant relies on the Full Court of the Federal Court’s observations in the Federal Commissioner of Taxation v Tamarama Fresh Juices Australia Pty Ltd & Others17 (‘Tamarama’) and the Federal Court decision in Propend Finance Pty Ltd & Others v Commissioner of Australian Federal Police & Others18 (‘Propend’). 44 Tamarama concerned proceedings by liquidators of various companies for equitable compensation effectively equivalent to the taxation liabilities of those companies. The Commissioner of Taxation was the only external creditor of those companies. Parties to those proceedings were given leave to issue a subpoena to the Commissioner seeking various documents given by or to the Commissioner relating to other entities. The Full Court considered the provisions in Division 355 of sch 1 of the TAA and in particular s 355-75. The appellant in this case referred to the following paragraph of the Court’s decision: 19 While we accept the proposition that the issue is to be resolved as one of substance rather than form, so that the fact of the Commissioner being a party to proceedings or not is not determinative, we do not agree that this factor is irrelevant. In deciding if disclosure is necessary for the purpose of giving effect to a provision of a taxation law all of the circumstances may and should be considered, including the nature of the application in aid of which disclosure is sought (in the present case, an application to stay proceedings as an abuse of process), the nature of the proceedings in which the application is made (in the present case, a proceeding by the plaintiff companies for equitable compensation from other companies), the relationship of the Commissioner to the application and the proceedings (in the present case, the Commissioner is not a party to the application or the proceedings, but is the creditor who may ultimately benefit in the winding up of the plaintiff companies if the proceedings succeed), and the relationship between the disclosure and the asserted giving of effect to the taxation laws (in the present case, a consequence of the successful prosecution of the proceedings may be the Commissioner recovering amounts 17 (2017) 252 FCR 471 (‘Tamarama’). 18 (1994) 72 A Crim R 278 (‘Propend’). 19 Tamarama at [46]. -- 11 of 14 -- [2026] SASC 53 McIntyre J 10 equivalent to unpaid taxes, which is not the same as disclosure being necessary for the purpose of carrying into effect of any such provision). 45 As the appellant contends, Tamarama stands for the proposition that, whether disclosure is necessary for the purpose of giving effect to a provision of a taxation law requires consideration of all the circumstances including, the nature of the application in aid of which disclosure is sought; the nature of the proceeding in which the application is made; the relationship of the Commissioner to the application and the proceeding; and the relationship between the proceedings and the asserted giving effect to taxation laws.20 The appellant does not take issue with the correctness of the decision in Tamarama rather, it appears that he takes issue with the manner in which the trial judge applied that decision to the facts of this matter saying that the relevant circumstances are as follows:21 First, the nature of the application in aid of which disclosure is sought is to facilitate the (prosecution’s ongoing) duty of disclosure as part of a criminal prosecution (which is necessary to give effect to the right of an accused person to a fair trial), and by extension to enable the appellant to properly prepare a defence to that prosecution. Second, the proceeding is in the nature of a criminal prosecution of the appellant for alleged tax offences. That is offences which relate to alleged ‘offending against the revenue’. A criminal prosecution of a person entails a right to a fair trial, which entails observation and giving effect to the duty of disclosure. Third, the relationship of the Commissioner to the proceeding is that of the informant. The matter was referred to the Commonwealth Director of Public Prosecutions for prosecution by the Commissioner following investigation. Fourth, the relationship between the disclosure and the asserted giving of effect to the taxation laws is that the prosecution is brought against the appellant for alleged non- compliance with taxation laws. As explained by the Federal Court in Propend Finance, in doing so, the Commissioner is giving effect to the provisions of a taxation law, such as Sch 1 to the TAA (which concerns the collection and recovery of income tax and other liabilities). (emphasis in original) 46 Propend dealt with s 16(3) of the ITAA, which is the immediate predecessor to s 355-75, and relevantly provided as follows: (3) An officer shall not be required to produce in Court any return, assessment or notice of assessment, or to divulge or communicate to any Court any matter or thing coming under his notice in the performance of his duties as an officer, except when it is necessary to do so for the purpose of carrying into effect the provisions of this Act or of any previous law of the Commonwealth relating to Income Tax. 47 The applicants in Propend were the subject of search warrants issued under the Crimes Act 1914 (Cth) and sought a review of the warrants under the Administrative Decisions (Judicial Review) Act 1977 (Cth). As part of that 20 FDN 7 at [55], [80]. 21 FDN 7 at [82]–[85]. -- 12 of 14 -- [2026] SASC 53 McIntyre J 11 application, subpoenas were issued to the ATO. In setting aside those subpoenas, Davies J accepted that the meaning of the word “necessary” in s 16(3) was “requisite” and said:22 I would reject Ms Fullerton's primary submission that matters arising out of an inquiry into taxation offences or out of the prosecution of taxation offences are not circumstances where disclosure can be “necessary” for the purpose of carrying into effect the provisions of the Income Tax Assessment Act or of the Crimes (Taxation Offences) Act. It is indeed an aim of a prosecution of a taxation offence of the type specified in the warrants to ensure that the provisions of those Acts are carried into effect, if not by the persons charged with the offences, at least by other taxpayers. A prosecution which deters persons from offending against the revenue assists in the ultimate task of enforcing the revenue law. 48 There is, as the appellant contends, no criticism of the approach taken in Propend and Tamarama. However, as the trial judge noted acknowledging the different statutory context, the extent to which the Full Court in Tamarama adopted Propend was limited to the construction of the term “necessary”.23 I further note that the circumstances in Propend were distinguishable from the present in that some of the offences specified in the search warrants were offences against the Crimes (Taxation Offences) Act 1980 (Cth) (‘CA’). The paragraph quoted above must be viewed in the light of the possibility that an inquiry into, or the prosecution of, possible taxation offences might be seen as “necessary” for the purpose of carrying into effect the provisions of the ITAA or of the CA. I reject the appellant’s submission that this is “a difference without substance”.24 As outlined by the Court in Tamarama, the issue to be resolved is one of “substance rather than form” but this cannot warrant ignoring relevant considerations such as the nature of the proceedings in which the subpoena is issued and the relationship of the Commissioner to the proceedings. 49 The appellant in this matter is not being prosecuted by the respondent, nor is he being prosecuted for a breach of a taxation law. He is charged under the Code with attempting to obtain a financial advantage by deception and obtaining a financial advantage by deception. The appellant’s charges arise out of the lodgement of allegedly false business activity statements and a subsequent investigation by the ATO. This does not mean that the disclosure of broad ranging material, including material related to third parties and others identified as persons of interest during the same ATO investigation, is necessary for the purpose of carrying into effect the provisions of a taxation law. This is not a case where the proceedings directly or indirectly seek to recover unpaid tax liabilities or otherwise enforce an obligation on a taxpayer. The TAA is unambiguous in imposing strict privacy obligations on taxation officers and in setting out the circumstances in which a taxation officer can be compelled to disclose protected information to a court or a tribunal. It is my view that the trial judge correctly determined that those 22 Propend at 286. 23 Tamarama at [23]–[25]. 24 FDN 13 at [26]. -- 13 of 14 -- [2026] SASC 53 McIntyre J 12 circumstances are not met here. As the Full Court in Tamarama expressly observed:25 …the questions of purpose and necessity under s 355-75 are not informed by considerations of fairness or justice. The circumstances either meet the exception or they do not, albeit that minds might differ as to the result. There is no discretion to exercise. 50 The trial judge was correct to reject the material sought by the appellant under subpoena as too generalised and remote to the “carrying into effect the provisions of a taxation law”. 51 Accordingly, it is my view that the appeal ought to be dismissed. 25 Tamarama at [48]. -- 14 of 14 --