• 5. Prescribed Phoenix Taskforce


    Richard Collis and Scott McPherson (ATO)

    • Why create a taskforce?
      • It is an opportunity to dedicate resources to addressing an area of high importance to the government. A taskforce can either be 'internal' to an agency or 'cross-agency'. As an example, the Chair mentioned the ATO created an 'internal' taskforce, the High Wealth Individual Taskforce, which was created for a set period of time.
      • A taskforce environment promotes information sharing and the leveraging of data, knowledge and experience together from a number of bodies and agencies.
      • It allows the establishment of cross-agency, clear objectives (e.g. What are you going to do? What information are you going to seek? How are you going to use that information? Who is entitled to use that information etc) encouraging alignment of strategies, hence promoting effectiveness and efficiency of approaches.
      • It influences the behaviour of the community by raising awareness that Phoenix is in the spotlight and everyone is working together towards common goals.
    • Creating an effective taskforce
      • Members of this forum have indicated during previous discussions they want to create a taskforce 'across' agencies and the need for it to be effective.
      • Agencies will need to understand what the benefits will be for them should they become a member of a taskforce.
      • The taskforce needs clear terms of reference (including roles of member agencies/bodies) and statement of purposes.
      • There is a need to identify and engage relevant agencies. As a start, the taskforce may include the 10 agencies represented on this forum as well as perhaps the Australian Federal Police (AFP).
      • Ensure provisions are in place to allow effective information sharing (e.g. prescribing a taskforce).
    • ATO 'prescribed' taskforce
      • Scott McPherson attended the meeting to assist with addressing this agenda item due to his previous experience with establishing a 'prescribed task force'.
      • Legislative changes were passed at about the time Project Wickenby was established in legislation to allow the ATO to 'prescribe a taskforce'. Prescribing a taskforce allows the ATO to share ATO 'protected information' with taskforce members. 'Protected information' is defined in the Tax Administration Act (TAA) and disclosed information can only be used or on-disclosed for a purpose, or in connection with a purpose, of that taskforce.
      • The distinction about 'taskforces' (as discussed above) and a 'prescribed taskforce' (PT) is that the usual tax law statutory restrictions and exceptions apply to non-PT's whereas it is the purposes of a PT that define and inform allowable information disclosures by the ATO.
      • The purposes of a PT may be broad and allow the ATO to disclose protected information to a PT for its purposes that would not otherwise be allowable under the 'usual' statutory provisions.
      • The on-disclosure of protected information by a PT is governed by the purposes of the PT and Sub-division 355-C TAA 1953. PT Agencies need to have a clear understanding of the secrecy and disclosure provisions contained in the TAA 1953 and how it applies to 'protected information' as well as their own disclosure/secrecy provisions and should have procedures and clear instructions in place for their PT activities.
      • Breaches of the on-disclosure provision in Division 355 TAA 1953 can result in imprisonment for up to two years. It may be difficult to align the secrecy and disclosure obligations of multiple agencies which may make up a Phoenix PT. It is strongly recommended that these issues be canvassed, identified and scoped before proposing to prescribe a taskforce as the parties may find the PT information disclosure provisions too onerous.
      • The following example of a taskforce was provided. The ATO is a partner agency of a non-PT taskforce with Agency A (which also needs to be a defined law enforcement agency under subsection 355-70[4] TAA 53). The ATO will generally disclose protected information to Agency A under the 'law enforcement and related' information disclosure provisions in subsection 355-70[1] item 1. There are three disclosure provisions under item 1 being:

    I. investigating a serious offence

    II. enforcing a law, the contravention of which is a serious offence

    III. the making, or a possible making, of a proceeds of crime order

    • The sharing of information will be limited to the ATO's general disclosure provisions. Agency A can only use that protected information for the purpose for which it was disclosed, or in connection with that purpose.
    • If however the ATO 'prescribed' the taskforce, then the ATO could disclose protected information to the PT (which obviously encompasses its partner agencies which do not have to be defined law enforcement agencies) for its purpose/s. Any on-disclosure of that information by the PT would also need to be for the purpose for which it was disclosed, or in connection with that purpose, including another purpose of the PT.
    • It must be noted that the information is 'quarantined' within the PT. In other words, partner agencies can not use that protected information for a different or another agency purpose unless it was as a result of an allowable on-disclosure by the PT for, or in relation, to the PT's purpose/s. For example, if a PT was established (similar to Project Wickenby) and protected information was disclosed by the ATO to the PT of which ASIC is a partner agency, the PT may only on-disclose that information to ASIC's enforcement area if it was for a purpose/s of the PT.
    • Where to from here?
      • Several members agreed that for a taskforce to be effective, there would be a need for staff to be specially funded and this is especially so for the smaller agencies.
      • Majority of members agreed a formal arrangement is necessary, however one member wanted to consider more closely the benefits for them of such an arrangement prior to making any commitment.
      Last modified: 14 Dec 2012QC 26757