Obstructing our access
Our right of full and free access allows us to take whatever steps are appropriate to remove a physical obstruction to our access, provided that those steps are not excessive. We remove obstructions to gain access only in rare circumstances. If obstructed or hindered, we may either:
- remove the obstruction
- seek an injunction if we are concerned that the documents could be lost, tampered with or destroyed
- take prosecution action.
We will usually give you adequate time if you wish to obtain advice. In these circumstances, we may need to remain on your premises to ensure that the records of interest are not removed, altered or destroyed.
If your adviser is not available, where possible we will make arrangements with you to secure the documents and inspect them as soon as possible after you have obtained advice, preferably on that same day.
We may arrange to secure the records if a longer delay is agreed to or we have reasonable belief that the documents of interest will be removed, altered or destroyed. We may do this by placing them in a sealed envelope or sealing the storage device they are contained in for the duration of the delay.
In exceptional circumstances, and with the approval of a senior officer, we may need to use force to gain access to places or premises.
If domestic premises are unattended, we:
- will make a reasonable attempt to locate the occupier to facilitate our access
- will generally not remove obstructions
- will ordinarily only access the 'business type' areas of the premises
- may ask the relevant state or territory police to ensure the premises are unoccupied and there are no hazardous materials at the premises before we enter.
Before undertaking forced access, we will consider:
- the importance of the material which we plan to access
- the risk that the material may be destroyed, altered or removed
- the degree of force necessary to gain access, and the extent and cost of damage likely to result
- whether the material could be obtained by other means, such as use of our formal notice powers
- whether all reasonable alternative means of obtaining access have been exhausted
- if Australian Federal Police assistance by way of a search warrant is needed in cases where serious offences appear to have been committed
- the potential for harm to our officers
- the reason for the denial of assistance
- the urgency of the matter.
We prefer to use a master key or engage the services of a locksmith rather than break a lock. Where practicable, we will discuss our intended method of gaining access with you beforehand.
Example – Forced access to premises
Documents relating to a company believed to be involved in tax evasion are in a locked warehouse. Our officers, Stan and Olivia, have received information that the documents relevant to their investigation are located in the building. The taxpayer and occupier have fled the country and are not expected to return.
Stan and Olivia force access by engaging a locksmith to open the door to the warehouse.
End of example
Locked storage facilities
If we require access to your locked storage facility, we will give you an opportunity to open the facility before we use force. If force is warranted, we will first consider alternative ways to open the facility, including:
- searching for a key
- engaging a locksmith to open the lock
- breaking open the locked facility (with permission from a senior officer).
Although we will use the minimum force needed to open the facility, damage may result in some cases. We may not be liable for damage if you have the means to open the facility and were given reasonable opportunity to do so. If we damage a locked facility and the occupier had not denied our request to unlock it, we will arrange for its repair.
If you wish to claim that documents contained in the facility are covered by legal professional privilege, the accountants' concession or the corporate board advice concession, we will allow you a reasonable amount of time to make that claim. In these cases, we will generally remain on your premises and continue to seek access to the remaining documents.
In cases where we suspect a criminal breach – for example, a serious offence or fraud – we may request the Australian Federal Police to execute a search warrant. Under a search warrant, the original documentation is seized and removed from your premises – only documents described in the warrant can be seized.
The alleged or suspected offences which may cause us to seek a search warrant include:
- offences against the Crimes (Taxation Offences) Act 1980
- major fraud or conspiracies to defraud the Commonwealth in respect of tax revenue – for example, under the Criminal Code Act 1995
- serious breaches, such as fraudulent record keeping under section 8T of the TAA or identity fraud under section 8U of the TAA.