The ATO is conducting a pilot to test an alternative dispute resolution (ADR) process to resolve tax disputes using in-house facilitators. The pilot implements the recommendation made by the Inspector-General of Taxation (IGT) in May 2012, published in the Review into the Australian Taxation Office's Use of Early and Alternative Dispute Resolution report.
This Code of conduct is binding on facilitators appointed by the Commissioner to facilitate the ADR process between the Commissioner and one or more taxpayers (collectively called 'parties').
1. Training and competence
Facilitators will be competent and have relevant skills and knowledge of the ADR process.
2. Professionalism
Every facilitator will:
- act in good faith and with impartiality to all parties
- support the integrity and fairness of the ADR process
- act within the law
- respect time and attempt to bring the dispute to a conclusion in a reasonable time
- adhere to the Australian Public Service Code of Conduct at all times.
3. Declining an appointment
A facilitator will decline an appointment if they:
- cannot impartially conduct the facilitation
- have a conflict of interest (more detail under the Conflict of interest section below)
4. Impartiality
For the purposes of this Code of conduct, 'impartiality' means freedom from favouritism, bias or prejudice (other than the facilitator being an employee of the ATO).
A facilitator will act and endeavour to be seen to act with impartiality towards all parties equally for the ADR process.
A facilitator will immediately disclose to the parties any facts or circumstances that may, or may be seen to, either:
- affect their independence, or
- create the impression that their independence is affected.
This includes and without limitation whether the facilitator has previously been involved in the dispute between the parties at any time regardless of whether or not such involvement was in their capacity as an employee of the ATO.
In such case of disclosure, the facilitator will only continue to act with the parties' consent, unless, in the view of the facilitator, the lack, or perceived lack, of impartiality will impair the facilitator's ability to meet these standards. In which case, the facilitator will cease to act and withdraw from that ADR process.
5. Conflict of interest
A facilitator will avoid any conflict of interest or the appearance of it during and after the ADR process (other than the facilitator being an employee of the ATO).
A facilitator will immediately disclose to the parties any facts or circumstances that may, or may seem to, affect a facilitator's independence or give rise to a conflict of interest. In such cases, the facilitator may only agree to act or continue to act with the parties' consent, unless, in the view of the facilitator, the conflict of interest will impair the facilitator's ability to meet these standards. In which case, the facilitator will cease to act and withdraw from that ADR process.
If one of the parties requests the facilitator to remove him or herself, the facilitator will do so or determine that the case is not appropriate for facilitation.
A facilitator will not accept any gifts, inducements or rewards (whether in monetary or non-monetary form) in respect of his or her involvement in the ADR process from either party whatsoever save and except for the facilitator's current remuneration as an employee of the ATO.
A facilitator will not have any financial or other interest (whether direct or indirect) in the outcome of the ADR process.
6. Confidentiality
Any information disclosed during the ADR process is only to be used for the ADR process, unless authority is otherwise agreed by the disclosing party, disclosure is required by law or the information represents an actual or potential threat to human life or safety.
This means that:
- what is said in the session stays in the session
- anything you or others say or write during or about the ADR process must not be spoken or written about outside of the process
- you can only speak or write about the ADR session to the following people (where they agree to keep what you tell them to themselves):
- the other participants
- the ADR practitioner
- other people involved in the ADR process, such as lawyers and expert advisers
- people who have asked you to go to the ADR process
- other people agreed by all participants.
To avoid any doubt:
- Only non-identifying information about the ADR process, undertaken as part of the IGT pilot project, may be disclosed in the final report by the ATO to the IGT (IGT Report).
- No admission by, or new evidence obtained from, a party (Party A) as a consequence of the ADR process can be used by or be disclosed to any other person employed by the ATO, or otherwise engaged to act for the Commissioner, as a basis to amend the returns of any person or would otherwise benefit the other party, without the prior consent of Party A.
- A reference to a 'party' in the context of the taxpayer includes the taxpayer's agent or representative appointed for the purposes of the ADR process.
7. Conclusion of facilitation
A facilitator (if requested by both parties) will assist the parties to record the outcomes of the ADR process, including all agreements and recommendations or a settlement made during or as a result of the ADR process.
A facilitator may suspend or terminate the ADR process if continuation of the process might harm or prejudice one or more of the parties.
8. Quality control
The Commissioner may request the parties to complete evaluations of the ADR process, including an assessment of the facilitator, from any party, which the Commissioner is entitled to treat confidentially unless specifically identified to be used for the IGT Report.
Acknowledgement
I ……………………………………………………..………… (name of facilitator) hereby acknowledge that I have read and understood the Code of conduct obligations above, imposed on me as a facilitator and hereby agree to be bound by the terms of the Code of conduct throughout my involvement as a facilitator in the ADR process.
……………………………………………… …………………………
Signature Date
Last Modified: Thursday, 17 January 2013