Words and Phrases - "Harman obligation"

The liquidators of a company (“Rennie Produce”) had issued summons to various third parties respecting the production of various documents. Following an investigation by the Commissioner as to why the taxpayer (“Rennie”) had reported a capital gain of only $5.3 million on the sale of Rennie Produce, the Commissioner issued a Notice to Rennie Produce, requiring it to produce documents specified in the notice. The Notice was issued pursuant to s 353-10(1)(c) of Sched. 1 to the Taxation Administration Act 1953 (Cth), which furnished power to the Commissioner to require the recipient of a notice in writing to the relevant effect to produce documents in the custody or control of the recipient. Rennie Produce applied for leave to produce such documents having regard to the Harman obligation (see Harman v Secretary of State for Home Department [1983] 1 AC 280).

The Court stated (at paras 27, 37):

In Hearne at [96], the plurality of the High Court described the Harman obligation in the following way:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.

…In our opinion, providing documents to the Commissioner in answer to the Notice is not use of documents by the person the subject of the Notice. Rather, the true character of providing such documents is compliance with a requirement to give any document to the Commissioner in circumstances where a refusal or failure to give the document, where the person is capable of so doing, is an offence of absolute liability… .

The Court concluded (at paras 56):

The Harman obligation does not prevent or excuse a person owing that obligation from complying with a valid notice issued under s 353-10(1)(c). Nor does the Harman obligation prevent the applicant or taxation officers receiving documents the subject of a Harman obligation from using those documents in the lawful exercise of the powers and functions vested in the Commissioner. …