Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Daryl Williams AM QC MP)Schedule 6 - Amendment of the Taxation Administration Act 1953 (the TAA Act)
These items add definitions to section 2. Added definitions are "ASIO", "ASIO officer", "authorised ASIO officer", "Director-General of Security" and "IGIS officer". The definitions are inserted to provide a framework in the TAA Act for the provision of tax information to ASIO.
This item amends subsection (1AA) of section 3B to provide for annual reporting of the number of requests received by the Commissioner of Taxation from ASIO to provide tax information and the number of times that information was disclosed under new section 3EA.
Subsection 3E(2) is amended by omitting "authorised law enforcement agency officer, or to an authorised Royal Commission officer, under subsection (1)" and substituting "officer under subsection (1) of this section or paragraph 3EA(3)(e)".
Subsection 3E(3) is amended by inserting "of this section or paragraph 3EA(3)(e)" after "subsection (1) or (2)".
Subsection 3E(4) is amended by omitting "authorised law enforcement agency officer, or to an authorised Royal Commission officer, under subsection (1)" and substituting "officer under subsection (1) of this section or paragraph 3EA(3)(e)".
These amendments to subsections 3E(2), (3) and (4) will provide that the prohibition against recording, divulging or communicating tax information obtained, and the exceptions to those prohibitions, contained in section 3E will also apply to a law enforcement agency officer who obtains tax information from an ASIO officer under new paragraph 3EA(3)(e).
Item 10 inserts new sections 3EA, 3EB and 3EC.
New Section 3EA will allow the Commissioner of Taxation to disclose tax information to an ASIO officer provided the Commissioner is satisfied that the information is relevant to the performance of ASIO's functions under subsection 17(1) of the Australian Security Intelligence Organisation Act 1979 (ASIO's 17(1) functions). Subject to exceptions, Section 3EA will also prohibit an ASIO officer, or a former ASIO officer, to whom the information is, or has been, disclosed from recording, divulging or communicating the information to another person and provides a penalty for breach of that obligation.
New Section 3EB will impose an obligation on barristers and solicitors not to record, divulge or disclose tax information where that information has been disclosed by an ASIO officer under an exception in new section 3EA. It will also impose that obligation on a person to whom the barrister or solicitor has divulged or disclosed the information under the exception to disclosure.
Section 3EC will impose obligations on the Inspector-General of Intelligence and Security holding office under Inspector-General of Intelligence and Security Act 1986 or a member of staff appointed to assist the Inspector-General (IGIS officer) in cases where tax information is disclosed to an IGIS officer by an ASIO officer under one of the exceptions in new section 3EA.
Subsection 3EA(1) overrides any taxation secrecy provisions and allows the Commissioner of Taxation to disclose tax information to an ASIO officer provided the Commissioner is satisfied that the information is relevant to the performance of ASIO's 17(1) functions.
'Tax information' means information acquired by the Commissioner under the provisions of a tax law as defined in subsection 3EA(6).
Information has its normal meaning and disclosure of information includes the production of a document or the granting of access to a document.
Subsection 3EA(2) imposes a general secrecy obligation prohibiting an ASIO officer or a former ASIO officer from recording, divulging or disclosing any tax information obtained under subsection 3EA(1) from the Commissioner of Taxation, under subsection 3EA(3) from another ASIO officer or under subsection 3EC(2) from an IGIS officer. A penalty for breach of that secrecy obligation is provided for.
Subsection 3EA(3) provides 5 exceptions to the prohibition contained in subsection (2). The exceptions apply to an ASIO officer (but not a former ASIO officer).
First, an ASIO officer may make a record of the tax information for the purposes of the performance of that officer's duties in carrying out ASIO's 17(1) functions. [New paragraph 3EA(3)(a)]
Secondly, an ASIO officer may divulge or communicate the information to another ASIO officer for the purposes of the performance of that ASIO officer's duties in carrying out ASIO's 17(1) functions. [New paragraph 3EA(3)(b)]
The ASIO officer to whom the tax information is disclosed by another ASIO officer is bound by the same secrecy obligation under subsection 3EA(2) as the ASIO officer to whom the Commissioner of Taxation disclosed the information.
Thirdly, an ASIO officer may divulge or communicate the information to a barrister or solicitor representing a person in:
- •
- a prosecution of a person for a tax-related offence; or
- •
- proceedings for the making of a proceeds of crime order;
for the purposes of, or in connection with, the prosecution or proceedings . [New paragraph 3EA(3)(c)]
The barrister or solicitor may only use the tax information as provided for in new section 3EB.
Fourthly, an ASIO officer may divulge or communicate the tax information to an IGIS officer for the purposes of, or in connection with, the performance of that IGIS officer's duties in relation to ASIO or employees of ASIO. [New paragraph 3EA(3)(d)]
The IGIS officer may only use the tax information as provided for in new section 3EC.
Fifthly, an ASIO officer may divulge or communicate the information to a law enforcement agency officer for the purposes of, or in connection with:
- •
- the investigation of a serious offence; or
- •
- an investigation relating to the making, or proposed or possible making, of a proceeds of crime order; or
- •
- the prosecution, or proposed or possible prosecution, of a person for a tax-related offence; or
- •
- the proceedings, or proposed or possible proceedings, for the making of a proceeds of crime order. [New paragraph 3EA(3)(e)]
The law enforcement officer may only use the information as provided for in amended section 3E.
Subsection 3EA(4) provides that if an ASIO officer or former ASIO officer has obtained information under subsections 3EA(1) or (3) or subsection 3EC(2) the person must not:
- •
- be required to divulge or communicate the tax information to a court; or
- •
- voluntarily give the tax information in evidence in proceedings before a court except in the course of:
- •
- the prosecution of a person for a tax-related offence; or
- •
- the proceedings for the making of a proceeds of crime order.
Subsection 3EA(5) clarifies that the expressions "the possible making of a proceeds of crime order" or "the possible proceedings for the making of a proceeds of crime order" include a reference to the making of an order, or proceedings, that are only a possibility at the time in question because the person has not been convicted of an offence to which the order relates.
Subsection 3EA(6) defines "proceeds of crime order", "serious offence", "taxation secrecy provision", "tax information", "tax law", and "tax related offence" for the purposes of the section.
Subsection 3EB(1) prohibits a person from recording, divulging or disclosing any tax information obtained under paragraph 3EA(3)(c) or subsection 3EB(2). A penalty for breach of the secrecy obligation is provided for.
Subsection 3EB(2) provides one exception in the case of a barrister or solicitor from the general secrecy obligation in subsection (1).
A barrister or solicitor will be allowed to divulge or communicate the information or make a record of the information for the purposes of or in connection with the proceedings mentioned in paragraph 3EA(3)(c).
The person to whom the barrister or solicitor divulges or communicates the tax information is also bound by the secrecy obligation is subsection 3EA(1).
Subsection 3EB(3) provides that a person who has received tax information under paragraph 3EA(3)(c) or under subsection 3EB(2) must not be required to divulge or communicate the information to a court.
Subsection 3EB(4) defines the term "tax information" for the purposes of section 3EB by reference to the definition in section 3EA.
Subsection 3EC(1) imposes a general obligation on an IGIS officer or a former IGIS officer who has obtained tax information not to record the information or divulge or communicate the information to any other person. A penalty for breach of the secrecy obligation is also provided for.
Subsection 3EC(2) provides exceptions from the general secrecy obligation in subsection (1) and allows an IGIS officer (but not a former IGIS officer) to:
- •
- make a record of the tax information for the purposes of the performance of the officer's duties in relation to ASIO or its employees; [new paragraph 3EB(2)(a)]
- •
- divulge or communicate the tax information to another IGIS officer for the purposes of or in connection with the performance of that officer's duties in relation to ASIO or its employees; [new paragraph 3EC(2)(b)] and
- •
- divulge or communicate the tax information to the Director-General of Security in:
- •
- a draft report under section 21 of the IGIS Act; [new subparagraph 3EC(2)(c)(i)] or
- •
- a report under section 22 or 25A of the IGIS Act; [new subparagraph 3EC(2)(c)(ii)]
in relation to ASIO or its employees.
Subsection 3EC(3) clarifies that an IGIS officer (or former IGIS officer) must not be required to divulge or communicate the tax information received under section 3EA or subsection 3EC(2) to a court or to voluntarily give the information in evidence before a court.
Subsection 3EC(4) defines "tax information" for the purposes of section 3EC by reference to the definition in section 3EA.