Australian Taxation Office Definitions
Dear Australian Taxation Office,
I Hereby request under the freedom of Information Act 1982 the following information,
(a) Existing documents containing the Australian Taxation Office definition of “person”.
(b) Existing documents containing the Australian Taxation Office definition of “income”.
I also make the application that all costs for the processing of this request be waived on Public interest grounds in accordance with section 29 of the FOI Act, being that it would be in the general public interest or in the interest of a substantial section of the public.
Yours faithfully,
Benjamin Garrett
President & Secretary
Read Your Constitution Organisation
Dear Mr Garrett
Thank you for your request dated 26 August 2013 seeking access to
documents containing the Australian Taxation Office definition of
"person" and "income". We need some further information from you to
allow us to clearly identify the documents you are seeking, for example
are you requesting legislative definitions?
I would like to discuss your request with you if possible. It may be
easier for us to discuss by phone, you can contact me directly at
[ATO request email] to provide a contact number.
Regards
__________________________
FOI
General Counsel
Australian Taxation Office
Dear Australian Taxation Office,
Thank you for your reply, as an example section 995.1 of the Income Tax Assessment Act 1997 contains the following, ("person" includes a company) although it does not define “person”
I request access to existing documents containing the Australian Taxation Office definition of
"person" and "income" either legislative or other.
I thank you for your offer to enter into discussions via phone, although due to my work commitments it is more convenient for me to correspond via email.
Yours faithfully
Mr Benjamin Garrett
President and Secretary
Read Your Constitution Organisation
Dear Mr Garrett
You have requested access to existing documents containing the
Australian Taxation Office definition of "person" and "income" either
legislative or other. We are still uncertain as to what documents you
are requesting.
If you are seeking access to legislation and ATO consideration of the
law, you may wish to access the ATO Legal Database. The database
contains legal and policy information on material such as ATO
Interpretative Decisions, Public Rulings and Determinations and
Legislative Determinations. This information is available through the
following website, free of charge: http://law.ato.gov.au/
This may be able to assist you with your query or allow you to identify
the specific documents you are seeking in order to make a valid FOI
request.
Regards
__________________________
FOI
General Counsel
Australian Taxation Office
Dear Australian Taxation office,
I would like to seek clarification as to whether at this stage you are refusing my FOI request for reasons as stated in Section 24A of the Freedom of Information Act 1982. If this is not the case I wish to attempt to clarify and explain in more detail the focus of my request.
When conducting a search online for the legal definition of a person the following is provided,
“person” In general usage, a human being; by statute, however, the term can include firms, labor organisations, partnerships, associations, corporations, legal representatives, trustees, trustees in Bankruptcy, or receivers.
The information that I seek in my FOI request is whether the Australia Taxation Office has a similar definition for the word “person”. A search of the definitions provided online at (http://www.ato.gov.au/Definitions/) does not provide a definition of a ”person”, and as I have brought to your attention in previous correspondence, Section 995.1 of the Income Tax Assessment Act 1997 contains hundreds of definitions, for example
"public official" means an employee or official of an * Australian Government Agency or of a * local governing body,
"person" includes a company.
As you can see from my example, the definition of “public official” is quite thorough although the definition or lack thereof of “person” is quite vague.
Is it not true that a cardinal rule of statutory interpretation is that a word cannot be used to define itself?. That is to say, you cannot use the word “person” to define the word “person”. Assume for example, that a statute for example in this case the Income Tax Assessment Act 1936 mandates that every “person” must lodge a tax return. If the statute does not define “person”, then it will have to be interpreted if questions arise.
Therefore I wish to re scope my FOI request to the following,
I respectfully request under the Freedom of Information Act 1982,
access to existing documents containing the Australian Taxation Office statutory definition of a “person”
Yours sincerely,
Ben Garrett
President and Secretary
Read Your Constitution Organisation
Dear Mr Garrett,
We are not refusing your request under section 24A of the Freedom of
Information Act 1982 (the FOI Act). Instead, I do not consider your
request to be a valid request under the FOI Act.
You appear to be requesting statutory definitions of 'person'. Statutory
definitions are in legislation, and legislation is a publically
available resource. The definition of 'document' in the FOI Act
specifically excludes 'material maintained for reference purposes that
is otherwise publicly available' (section 4(1)). In my view legislation
fits this criteria. Accordingly, your request is not for documents to
which the FOI Act applies.
In our previous response we referred you to the ATO's website, where
many documents (some of which may contain discussions of definitions of
'person') are publically available and searchable. You might also try
www.austlii.edu.au, which contains searchable legislation and case law.
Regards
Chad Reich
Senior Lawyer
General Counsel
Australian Taxation Office
Sophia Wrightman left an annotation ()
Person is simply a legal image (identity) for each child of the parent governing body (e.g one per son = "person"). So you always appear in person meaning you can't actually be a person in court and legally speaking either. When answering as a person you're actually lying (claiming to be a false image) and are immediately in dishonour. Means your testimony won't be heard as a competent statement. Not exactly relevant here I know, but interesting nonetheless.
Locutus Sum left an annotation ()
If the following is already known to you, I apologise. Perhaps another user will find it to be useful. I try to annotate on the response of the Australian Taxation Office. I also try to answer the question you asked to the ATO about the definition of "person"
In your revised request, you asked for 'access to existing documents containing the Australian Taxation Office definition of "person" and "income" either legislative or other.'
The ATO could have responded in several ways. If the ATO understood your request ("or other") to be a request for an internal ATO document regarding the definition of person, and if there is no internal document of that kind, then they would have refused your request on the basis of section 24A ("Requests may be refused if documents cannot be found, do not exist or have not been received"). The ATO said in letter of September 20, 2013 "We are not refusing your request under section 24A of the Freedom of
Information Act 1982 (the FOI Act)". Mr Chad Reich then says that he did not consider your request to be valid. I believe that there is no doubt that part of your request was valid and part of it was either invalid or would be refused for the reason I soon tell you. The request for an internal ATO document was valid but from the reply you got you can definitely believe that there is no internal document. So that part of your request should have been refused on ground of section 24A. The request for a legislative definition was possibly not valid, or possibly valid, but in any case the ATO would not give you the documents. If Mr Reich is correct to say that legislation is for reference purposes and publicly available, then he is also correct to say that section 4 of the Act means that it is not a document (!) for the Act and so you cannot use the FOI Act to get it. Mr Reich could also have told you that all legislation can be purchased for a fee and because of section 12(1)(b) or section 12(1)(c) you may not use FOI to get access. You must pay money. There is good news; as Mr Chad Reich tells you, the law is accessible on http://www.austlii.edu.au . It is also on the web with Attorney General's Department at http://www.comlaw.gov.au
From this examination, I think it is right for you to conclude that the ATO has not a special definition of "person" and that the definition is somewhere else. But where?
Three good places to start for a search for the legal meaning of person are: the common law or case law, a dictionary, and the Acts Interpretation Act, 1901 (http://www.austlii.edu.au/au/legis/cth/c...).
For the definition of "person", you need the Acts Interpretation Act, and three sections of it.
Section 2. (1) This Act applies to all Acts (including this Act). (2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention
Section 2A. This Act binds the Crown in each of its capacities.
Section 2B, Definitions. "Individual" means a natural person.
Section 2C(1). In any Act, expressions used to denote persons generally (such as "person", "party", "someone", "anyone", "no-one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual.
There is no definition of person in the taxation legislation. For the taxation legislation, a person means what the Acts Interpretation Act says that a person is. And the Acts Interpretation Act is saying that a person is what you think a person is (a "natural person" or human being) but it is also a corporation ("body corporate") or a group of people ("body politic").
It is interesting to see "person" is also important to FOI. Section 4 of the FOI Act says an applicant is a person who makes an application. Also because of the Acts Interpretation Act, an applicant person can be a body corporate or body politic. In [2011] AICmr 8 (http://www.austlii.edu.au/au/cases/cth/A...) the applicant is Baljura who is a body corporate. In [2012] AICmr 28 (http://www.austlii.edu.au/au/cases/cth/A...) the applicant is Autism Advocacy who is a group of people with a same interest, so a body politic.
It is possible to say much more about "person" and how the legislation uses the word "included" but I hope this is a start. You might consider to search in www.austlii.edu.au in Commonwealth Consolidated Acts for these words in quotation marks "means a natural person".