Taxation Administration Act 1953
Note: See section 3AA .Chapter 5 - Administration
Note: A Commissioner ' s Remedial Power modification is relevant to this part of the tax law. Taxation Administration (Remedial Power - Disclosure of Protected Information by Taxation Officers) Determination 2020 (F2020L00061) modifies the operation of s 355-25(2) in Sch 1 to the Taxation Administration Act 1953 (the Act) and any other provisions of a taxation law whose operation is affected by the modified operation of s 355-25(2) .
The operation of the relevant provision is modified as follows:
The modification applies in relation to a disclosure of information by a taxation officer that occurs on or after 15 May 2020.
An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 of Sch 1 to the Act to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.
Section 355-25 does not apply if:
(a) the entity is the Commissioner or a *taxation officer authorised by the Commissioner to make the record or disclosure; and
(b) an item in the table in this subsection covers the making of the record or the disclosure; and
(c) if the entity is not the Commissioner, a *Second Commissioner or an SES employee or acting SES employee of the Australian Taxation Office - one of the following has agreed that the record or disclosure is covered by the item:
(i) the Commissioner;
(ii) a Second Commissioner;
(iii) an SES employee or acting SES employee of the Australian Taxation Office who is not a direct supervisor of the taxation officer.
A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code .
The Commissioner is required to include in an annual report information about disclosures made under this subsection: see section 3B .
|Records or disclosures for law enforcement and related purposes|
|Item||The record is made for or the disclosure is to ...||and the record or disclosure ...|
|1||an *authorised law enforcement agency officer, or a court or tribunal||is for the purpose of:|
|(a)||investigating a *serious offence; or|
|(b)||enforcing a law, the contravention of which is a serious offence; or|
|(c)||the making, or proposed or possible making, of a *proceeds of crime order; or|
|(d)||supporting or enforcing a proceeds of crime order.|
|2||an *authorised ASIO officer||is for the purpose of performing ASIO ' s functions under subsection 17(1) of the Australian Security Intelligence Organisation Act 1979 .|
|3||a *Project Wickenby officer, or a court or tribunal||(a)||is for or in connection with a *purpose of the Project Wickenby taskforce; and|
|(b)||is made before 1 July 2015, or a later prescribed day.|
|4||a *taskforce officer of a prescribed taskforce, or a court or tribunal||(a)||is for or in connection with a purpose of the prescribed taskforce; and|
|(b)||is made within the time limit, if any, prescribed by the regulations.|
|5||a Royal Commission in respect of which Letters Patent issued by the Governor-General declare that the Royal Commission is a Royal Commission to which this table item applies, or a member of such a Royal Commission||is for the purpose of the Royal Commission conducting its inquiry.|
|6||one or more of the following bodies:||is for the purpose of:|
|(a)||a Royal Commission of a State or a Territory prescribed by the regulations for the purposes of this table item;||(a)||investigating a *serious offence; or|
|(b)||a commission of inquiry of a State or a Territory prescribed by the regulations for the purposes of this table item;||(b)||enforcing a law, the contravention of which is a serious offence; or|
|(c)||a board of inquiry of a State or a Territory prescribed by the regulations for the purposes of this table item||(c)||the making, or proposed or possible making, of a *proceeds of crime order; or|
|(d)||supporting or enforcing a proceeds of crime order.|
The *taxation officer is entitled to rely on the exception in subsection (1) even if the agreement referred to in paragraph (1)(c) has not been obtained in relation to the record or disclosure. Meaning of various terms 355-70(2)
Authorised ASIO officer means:
(a) the Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979 ; or
(b) an ASIO employee (within the meaning of that Act) or an ASIO affiliate (within the meaning of that Act) who has been authorised in writing by the Director-General of Security to perform the functions of an authorised ASIO officer under this Act.
Authorised law enforcement agency officer means:
(a) the head of a *law enforcement agency; or
(b) an officer of a law enforcement agency, or a person engaged by, or otherwise performing services for, a law enforcement agency, authorised in writing by the head of the agency to perform the functions of an authorised law enforcement agency officer under this Act. 355-70(4)
Law enforcement agency means:
(a) the Australian Federal Police; or
(b) the police force of a State or Territory; or
(c) the Office of the Director of Public Prosecutions established by section 5 of the Director of Public Prosecutions Act 1983 ; or
(d) the Australian Commission for Law Enforcement Integrity; or
(e) the Australian Crime Commission; or
(f) the Independent Commission Against Corruption established by the Independent Commission Against Corruption Act 1988 of New South Wales; or
(g) the New South Wales Crime Commission; or
(h) the Law Enforcement Conduct Commission of New South Wales; or
(i) the Independent Broad-based Anti-corruption Commission of Victoria; or
(j) the Crime and Corruption Commission of Queensland; or
(k) the Corruption and Crime Commission of Western Australia; or
(ka) the Independent Commissioner Against Corruption of South Australia; or
Proceeds of crime order means:
(a) an order, relating to an entity ' s commission of a *serious offence, under:
(i) Chapter 2 (about confiscation of property in relation to certain offences) or Division 1 of Part 3-1 (about examination orders) of the Proceeds of Crime Act 2002 ; or
(ii) Part II (about confiscation) or III (about control of property liable to confiscation) of the Proceeds of Crime Act 1987 ; or
(iii) a *State law or *Territory law corresponding to a law referred to in subparagraph (i) or (ii); or
(iv) Division 3 of Part XIII (about recovery of pecuniary penalties for dealings in narcotic goods) of the Customs Act 1901 ; or
(b) an unexplained wealth order (within the meaning of the Proceeds of Crime Act 2002 ); or
(c) a court order (including a declaration or direction):
(i) under a State law or Territory law; and
(ii) relating to unexplained wealth.
An entity is a Project Wickenby officer if the entity:
(a) holds an office in, is employed in, or is performing services for:
(i) a *Project Wickenby taskforce agency; or
(ii) a *Project Wickenby taskforce supporting agency; and
(b) performs duties that relate to a *purpose of the Project Wickenby taskforce. 355-70(7)
The following agencies are Project Wickenby taskforce agencies :
(a) the Australian Taxation Office;
(b) the Australian Crime Commission;
(c) the Australian Federal Police;
(e) the Office of the Director of Public Prosecutions;
(f) a prescribed agency.
The following agencies are Project Wickenby taskforce supporting agencies :
(a) the Department administered by the Minister administering the Crimes Act 1914 ;
(b) the Australian Transaction Reports and Analysis Centre;
(c) the Australian Government Solicitor;
(d) a prescribed agency.
The purposes of the Project Wickenby taskforce are to:
(a) detect; and
(b) deter; and
(c) investigate; and
(d) enforce the law relating to;
the promotion of or participation in *arrangements of an international character, or purported international character, that relate to one or more of the following:
(e) tax avoidance or evasion;
(f) breaches of laws regulating financial markets and corporations;
(g) criminal activity in the nature of fraud or obtaining benefits by deception (including deceiving investors or creditors);
(h) money laundering;
(i) concealing income or assets. 355-70(10)
Serious offence means an offence against an *Australian law that is punishable by imprisonment for a period exceeding 12 months. 355-70(11)
An entity is a taskforce officer of a prescribed taskforce if:
(a) the entity holds an office in, is employed in, or is performing services for, an agency in the prescribed taskforce; and
(b) the entity ' s duties relate to a purpose of the prescribed taskforce. 355-70(12)
The regulations may prescribe a taskforce for the purposes of item 4 of the table in subsection (1). A major purpose of the taskforce must be protecting the public finances of Australia. 355-70(13)
Without limiting subsection (12), regulations made for the purposes of item 4 of the table in subsection (1) may deal with the following matters:
(a) the purposes of the taskforce;
(b) the agencies in the taskforce.
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