Aug 4, 20162 min read

Internal tax documents released — a peek into court interpretations

The ATO has released on its legal database a series of what until recently have been internal ATO documents. Internal tax documents released

The release of these documents in an initiative that the ATO has labelled “iNOW!” (a contraction of “interpretation now”) and is, according to assistant commissioner Gordon Brysland, “a reinvention initiative to drive awareness on what is happening on the statutory interpretation front”.

“iNOW! began as a way to address the need – recognised by top judges – for those working with legislation to get better at reading it,” Brysland says. “Yet, stand-alone interpretation courses are still not taught in universities and, of course, reading statutes is not just the playground of the legally trained.

“Instead, people pick up the skills by osmosis, by default, or not at all. iNOW! aims to fill this gap for both lawyers and non-lawyers,” he says. “We try to avoid focusing on niche issues and complication at the expense of practical guidance. Too easily this can lead to a mindset of ‘nothing is certain’ or ‘anything goes’. Both attitudes tend to distract the fundamental search for what parliament meant by the words it used.”

The documents (or “episodes” as the ATO calls them) are the brainchild of the ATO’s Tax Counsel Network, and have been released with an aim to raise awareness about what courts are saying about statutory interpretation.

The monthly series began more than a year ago, and the ATO says it has now made them public in response to growing external interest. Until now, they have been filed under “miscellaneous papers” in the ATO’s legal database.

Brysland says an additional aim is to draw attention to key principles, expressed in easily digestible chunks, “and to provide ‘iTips’ on how they may be applied”. The documents comment briefly on various cases (not necessarily tax cases) and indicate why they are important.

The documents are not public rulings or legal advice, and are not binding on the ATO. The episodes released already are listed below:

Episode 1 (Hierarchy & harmony, Impractical obligations, Legislative intention, Statutory definitions)Episode 2 (Importance of the text, Act ‘always speaking’, Constructional choices, Use of dictionaries)Episode 3 (Singular & plural, Same word, same meaning?, Interpretation of DTAs, Black letter approaches)Episode 4 (Text context text, Changes in language, Use of regulations, Deeming provisions)Episode 5 (Composite expressions, Status of notes, Adding words, Refresher course)Episode 6 (Importance of policy, Preconceived policy, Generalised policy, Sources of policy)Episode 7 (Validity, Retrospectivity, Uncertainty, Inconvenience)Episode 8 (Re-enactment, Similar phrases, Fundamental rights, Exclusive codes)Episode 9 (Legislative scheme, Delegated legislation, Judgment words, Incurable defects)Episode 10 (Meaning of ‘person’, ‘as amended from time to time’, Meaning of ‘Australia’, ‘means X and includes Y’)Episode 11 (Statutory definitions, Taking advantage of own wrong, Beneficial legislation, Commanding the impossible)Episode 12 (Same word, same meaning?, Objects and long-title, Terms in another Act, When ‘may’ means ‘must’)Episode 13 (Back to basics, Principle of legality, Punctuation, Delegated legislation)Episode 14 (Status of tax laws, Tax retrospectivity, Context and ambiguity, General & special provisions)