Explanatory Memorandum(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)
Chapter 6 - Confidentiality of Australian Business Number information
6.1 Schedule 6 to this bill amends the A New Tax System (Australian Business Number) Act 1999 (ABN Act) to clarify the circumstances in which the Registrar of the Australian Business Registrar (Register) can disclose protected Australian Business Number (ABN) information to Commonwealth agency heads and State and Territory department heads.
6.2 Currently the ABN Act limits the disclosure of protected ABN information to circumstances where agency functions have a direct nexus with the agency's legislation. Section 30 of the ABN Act protects the confidentiality of ABN information. In particular, paragraphs 30(3)(c) and (d) authorise the disclosure of information to particular persons for specific purposes:
- subparagraphs 30(3)(c)(i) and 30(3)(d)(i) allow the disclosure of information to a Commonwealth Public Service Agency Head for the purposes of legislation administered by the Agency Minister; and
- subparagraphs 30(3)(c)(vi) and 30(3)(d)(iv) allow disclosure to State and Territory Department heads for the purposes of legislation administered by the Minister responsible for that department.
6.3 However, many businesses have dealings with agencies not related to the agencies' legislation. Before the amendment to the regulations, discussed below, businesses that provided services to various agencies were required to provide their ABN information to each agency with which they had dealings. As the main object of the ABN Act is to make it easier for businesses to conduct their dealings with the various Governments this requirement had to be changed.
6.4 As an interim measure, to overcome this burden on business the A New Tax System (Australian Business Number) Regulations 1999 (ABN Regulations) were amended with effect from 15 October 2001. The amendment extended the disclosure of protected ABN information to Commonwealth agency heads and State and Territory department heads in respect of all agency or department functions.
6.5 Although the amendment to the ABN Regulations was considered to have a reasonable legal basis there was a risk that a Court may find the amendment to the Regulations invalid on the basis that the regulation alters the scope of the ABN Act. To have waited for legislation to be prepared would have imposed an unnecessary burden on those businesses that had dealings with Commonwealth, State and Territory agencies. Accordingly, the amendment to the ABN Regulations was made despite the possibility of that amendment being later ruled invalid.
6.6 The amendment to the ABN Act ensures that the Registrar of the Australian Business Register (ABR) can disclose protected ABN information to the heads of Commonwealth agencies and State and Territory departments. It will permit disclosure for the purposes of all functions of the agency or department.
6.7 Schedule 6 will amend the ABN Act by:
- omitting, in subparagraphs 30(3)(c)(i) and 30(3)(d)(i), the words after "the purposes of" and substituting "carrying out functions of the Agency (within the meaning of that Act); or" [Schedule 6, items 1 and 3] ; and
- omitting, in subparagraphs 30(3)(c)(vi), and 30(3)(d)(iv), the words after "the purposes of" and substituting "carrying out functions of the Department; or" [Schedule 6, items 2 and 4].
6.8 The ABN Act currently permits disclosure of protected ABN information to Commonwealth agency heads and State and Territory department heads only for the purposes of legislation administered by the Minister of the Agency or Department. Such legislation is broadly defined in the Administrative Arrangements Order which is authorised by the Governor-General, acting with the advice of the Federal Executive Council.
6.9 As the phrase "purposes of legislation administered by the Minister" was too restrictive, the ABN Regulations were amended to extend disclosure of protected ABN information to "functions of an Agency or a Department". Examples of functions of an Agency or a Department include those that are connected with internal administration and commercial relationships with business such as purchasing and procurement activities.
6.10 Although the ABN Regulations already provide for such disclosure, there may be some doubt about the validity of the amendment to the Regulations that provided such disclosure. The amendment to the law will ensure that protected ABN details can be disclosed by the Registrar to agency heads in respect of purposes of carrying out functions of their Agency or Department. This is in line with the disclosure provided in the Regulations. Any doubts about the validity of the amendment to the Regulations will be removed.
6.11 The amendments to the ABN Act will clarify the scope of the relevant provision and ensure that the law operates with its original intention. The main object of the ABN Act, as stated in section 3 of the Act, is to "make it easier for businesses to conduct their dealings with the Australian Government".
6.12 The amendments will have the effect of reducing the scope of the application of the existing criminal offence in section 30 of the ABN Act. The amendments will increase the disclosure allowed under the ABN Act to Commonwealth, State and Territory agency or department heads for purposes of carrying out functions by the relevant agency or department.
6.13 The amendments will commence on Royal Assent, but apply to disclosures of information that occurred on or after 15 October 2001.
6.14 The 15 October 2001 application date will align the ABN Act with the ABN Regulations that were gazetted on this date. This will ensure that any disclosures made in accordance with the ABN Regulations do not give rise to an offence in the event that the amendment to the ABN Regulations is ruled invalid. [Schedule 6, item 5]