Commonwealth Consolidated Acts Commonwealth Consolidated ActsTaxation Administration Act 1953
1 Division 355 in Schedule 1
Repeal the Division, substitute:
Division 355 -- Confidentiality of taxpayer information
Table of Subdivisions
Guide to Division 355
355 - A Objects and application of Division
355 - B Disclosure of protected information by taxation officers
355 - C On - disclosure of protected information by other people
355 - D Disclosure of protected information that has been unlawfully acquired
355 - 1 What this Division is about
The disclosure of information about the tax affairs of a particular entity is prohibited, except in certain specified circumstances.
Those exceptions are designed having regard to the principle that disclosure of information should be permitted only if the public benefit derived from the disclosure outweighs the entity's privacy.
Note: This Division contains the main circumstances in which protected tax information can be disclosed. A number of other Commonwealth laws also allow for the disclosure of, or access to, such information in limited circumstances. Some of these other laws are as follows:
Subdivision 355 - A -- Objects and application of Division
Table of sections
355 - 10 Objects of Division
355 - 15 Application of Division
The objects of this Division are:
(a) to protect the confidentiality of taxpayers' affairs by imposing strict obligations on * taxation officers (and others who acquire protected tax information), and so encourage taxpayers to provide correct information to the Commissioner; and
(b) to facilitate efficient and effective government administration and law enforcement by allowing disclosures of protected tax information for specific, appropriate purposes.
355 - 15 Application of Division
This Division applies in relation to the following entities in the same way as it applies in relation to * taxation officers:
(a) an entity engaged to provide services relating to the Australian Taxation Office;
(b) an individual employed by, or otherwise performing services for, an entity referred to in paragraph ( a);
(c) an individual:
(i) appointed or employed by, or performing services for, the Commonwealth or an authority of the Commonwealth; and
(ii) performing functions or exercising powers under or for the purposes of a * taxation law.
Subdivision 355 - B -- Disclosure of protected information by taxation officers
355 - 20 What this Subdivision is about
The main protection for taxpayer confidentiality is in this Subdivision. It is an offence for taxation officers to disclose tax information that identifies an entity, or is reasonably capable of being used to identify an entity, except in certain specified circumstances.
Table of sections
Operative provisions
355 - 25 Offence--disclosure of protected information by taxation officers
355 - 30 Meaning of protected information and taxation officer
355 - 35 Consent is not a defence
355 - 40 Generality of Subdivision not limited
355 - 45 Exception--disclosure of publicly available information
355 - 50 Exception--disclosure in performing duties
355 - 55 Exception--disclosure to Ministers
355 - 60 Limits on disclosure to Ministers
355 - 65 Exception--disclosure for other government purposes
355 - 70 Exception--disclosure for law enforcement and related purposes
355 - 75 Limits on disclosure to courts and tribunals
355 - 25 Offence--disclosure of protected information by taxation officers
(1) An entity commits an offence if:
(a) the entity is or was a * taxation officer; and
(b) the entity:
(i) makes a record of information; or
(ii) discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection ( 2)) or to a court or tribunal; and
(c) the information is * protected information; and
(d) the information was acquired by the first - mentioned entity as a taxation officer.
Penalty: Imprisonment for 2 years.
(2) An entity (the covered entity ) is covered by this subsection in relation to * protected information that relates to another entity (the primary entity ) if:
(a) the covered entity is the primary entity's * registered tax agent or BAS agent; or
(b) the covered entity is a * legal practitioner representing the primary entity in relation to the primary entity's * tax affairs; or
(c) the primary entity is an * incapacitated entity and the covered entity is a * representative of the incapacitated entity; or
(d) the covered entity is the primary entity's * legal personal representative; or
(e) the covered entity is the primary entity's guardian where the primary entity is a minor or suffers from mental incapacity; or
(f) the covered entity and the primary entity are members of the same * consolidated group or * MEC group; or
(g) the covered entity is a representative of the primary entity who has been nominated by the primary entity in the * approved form to act on that entity's behalf with respect to protected information.
355 - 30 Meaning of protected information and taxation officer
(1) Protected information means information that:
(a) was disclosed or obtained under or for the purposes of a law that was a * taxation law (other than the Tax Agent Services Act 2009 ) when the information was disclosed or obtained; and
(b) relates to the affairs of an entity; and
(c) identifies, or is reasonably capable of being used to identify, the entity.
Note: Tax file numbers do not constitute protected information because they are not, by themselves, reasonably capable of being used to identify an entity. For offences relating to tax file numbers, see Subdivision BA of Division 2 of Part III.
(2) Taxation officer means:
(a) the Commissioner or a Second Commissioner of Taxation; or
(b) an individual appointed or engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office.
Note: This Division applies to certain other entities as if they were taxation officers: see section 355 - 15.
355 - 35 Consent is not a defence
It is not a defence to a prosecution for an offence against section 355 - 25 that the entity to whom the information relates has consented to:
(a) the making of the record; or
(b) the disclosure of the information.
355 - 40 Generality of Subdivision not limited
Except as provided by section 355 - 60, nothing in this Subdivision limits the generality of anything else in it.
Note: This means that each provision in this Subdivision (other than section 355 - 60) has an independent operation and is not to be interpreted by reference to any other provision within the Subdivision.
355 - 45 Exception--disclosure of publicly available information
Section 355 - 25 does not apply if the information was already available to the public (otherwise than as a result of a contravention of section 355 - 25, 355 - 155 or 355 - 265).
Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code .
355 - 50 Exception--disclosure in performing duties
(1) Section 355 - 25 does not apply if:
(a) the entity is a * taxation officer; and
(b) the record or disclosure is made in performing the entity's duties as a taxation officer.
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code .
(2) Without limiting subsection ( 1), records or disclosures made in performing duties as a * taxation officer include those mentioned in the following table:
Records or disclosures in performing duties | ||
Item | The record is made for or the disclosure is to ... | and the record or disclosure ... |
1 | any entity, court or tribunal | is for the purpose of administering any * taxation law. |
2 | any entity, court or tribunal | is for the purpose of the making, or proposed or possible making, of an order under the Proceeds of Crime Act 2002 that is related to a * taxation law. |
3 | any entity, court or tribunal | is for the purpose of criminal, civil or administrative proceedings (including merits review or judicial review) that are related to a * taxation law. |
4 | any entity | is for the purpose of responding to a request for a statement of reasons under the Administrative Decisions (Judicial Review) Act 1977 in relation to a decision made under a * taxation law. |
5 | any entity | is for the purpose of: (a) determining whether to make an ex gratia payment; or (b) administering such a payment; in connection with administering a * taxation law. |
6 | any entity | is for the purpose of enabling the entity to understand or comply with its obligations under a * taxation law. |
7 | the Secretary of the Department of the Treasury | (a) is of information that does not include the name, contact details or * ABN of any entity; and (b) is for the purpose of: (i) the design of a * taxation law; or (ii) the amendment of a taxation law. |
8 | any board or member of a board performing a function or exercising a power under a * taxation law | is for the purpose of performing that function or exercising that power. |
9 | a competent authority referred to in an international agreement (within the meaning of section 23 of the International Tax Agreements Act 1953 ) | is for the purpose of exchanging information under such an international agreement. |
355 - 55 Exception--disclosure to Ministers
(1) Section 355 - 25 does not apply if:
(a) the entity is a * taxation officer; 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.
Records or disclosures to Ministers | ||
Item | The record is made for or the disclosure is to ... | and the record or disclosure ... |
1 | any Minister | is for the purpose of enabling the Minister to exercise a power or perform a function under a * taxation law. |
2 | the Minister | (a) is about an entity; and (b) is for the purpose of enabling the Minister to respond directly to the entity in relation to a representation made by the entity to: (i) the Minister; or (ii) another member of a House of the Parliament. |
3 | the Minister | is for the purpose of informing decisions made under the scheme known as the Compensation for Detriment Caused by Defective Administration Scheme. |
4 | the * Finance Minister | is for the purpose of: (a) the making, or possible making, of a payment referred to in section 33 of the Financial Management and Accountability Act 1997 (about act of grace payments) in connection with administering a * taxation law; or (b) the waiver, or possible waiver, of a * tax debt under section 34 of that Act. |
5 | any Minister | is for the purpose of: (a) determining whether to make an ex gratia payment; or (b) administering such a payment. |
Note 1: A defendant bears an evidential burden in rel ation to the matters in this subsection : see subsection 13.3(3) of the Criminal Code .
Note 2: Section 19A of the Acts Interpretation Act 1901 provides that the expression "the Minister", as used in table items 2 and 3, refers to the Minister or Ministers administering the relevant provision.
(2) 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.
355 - 60 Limits on disclosure to Ministers
(1) Sections 355 - 45 and 355 - 55 are the only exceptions to the prohibition in section 355 - 25 on which an entity who has acquired * protected information as a * taxation officer can rely in making a record of the information for, or disclosing the information to, a Minister , whether or not provided to a Minister in the course of, or for the purposes of or incidental to, the transacting of the business of a House of the Parliament or of a committee of one or both Houses of the Parliament .
Note: Disclosures that are not prohibited by section 355 - 25 are not affected by this subsection. For example, a taxation officer may disclose information to a Minister if the Minister is the entity to whom the information relates, or is an entity covered by subsection 355 - 25(2) in relation to the information.
(2) Subsection ( 1) has effect despite section 16 of the Parliamentary Privileges Act 1987 , and that section does not operate to the extent that it would otherwise apply to a disclosure of * protected information by a * taxation officer to a Minister.
Note: This subsection does not limit the operation of section 16 of the Parliamentary Privileges Act 1987 in any other respect. That section continues to operate, for example, to enable taxation officers to disclose protected information to a committee of one or both Houses of the Parliament.
355 - 65 Exception--disclosure for other government purposes
(1) Section 355 - 25 does not apply if:
(a) the entity is a * taxation officer; and
(b) an item in a table in this section covers the making of the record or the disclosure.
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code .
Table 1--Records or disclosures relating to social welfare, health or safety
(2) Table 1 is as follows:
Table 1: Records or disclosures relating to social welfare, health or safety | ||
Item | The record is made for or the disclosure is to ... | and the record or disclosure ... |
1 | an Agency Head (within the meaning of the Public Service Act 1999 ) of an agency (within the meaning of that Act) dealing with matters relating to the social security law (within the meaning of subsection 23(17) of the S ocial Security Act 1991 ) | is for the purpose of administering that law. |
2 | the * Health Secretary | is for the purpose of administering any law of the Australian Capital Territory or of the Northern Territory which is administered by the * Health Minister. |
3 | the Repatriation Commission | is for the purpose of administering any * Commonwealth law relating to pensions. |
4 | the * Education Secretary | is for the purpose of administering any * Commonwealth law relating to pensions, allowances or benefits. |
5 | the * Education Secretary | is for the purpose of administering any * Commonwealth law relating to financial assistance to students. |
6 | the * Families Secretary | is for the purpose of administering the A New Tax System (Family Assistance) (Administration) Act 1999 . |
7 | the Child Support Registrar | is for the purpose of administering the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989 . |
8 | the Chief Executive Officer of Medicare Australia | is for the purpose of administering Part 2 - 2 (about premiums reduction and incentive payment schemes) or 6 - 4 (about administration of those schemes) of the Private Health Insurance Act 2007 . |
9 | an * Australian government agency | is necessary for the purpose of preventing or lessening: (a) a serious threat to an individual's life, health or safety; or (b) a serious threat to public health or public safety. |
Table 2--Records or disclosures relating to superannuation or finance
(3) Table 2 is as follows:
Table 2: Records or disclosures relating to superannuation or finance | ||
Item | The record is made for or the disclosure is to ... | and the record or disclosure ... |
1 | a financial sector supervisory agency (within the meaning of section 3 of the Australian Prudential Regulation Authority Act 1998 ) | (a) is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999 ; and (b) is for the purpose of the agency performing any of its functions or exercising any of its powers. |
2 | (a) an agency having the function, in Australia or in a foreign country, of supervising or regulating * financial institutions; or (b) any other agency (including a foreign agency) specified in the regulations | (a) is of information that was obtained under or in relation to the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the Superannuation Industry (Supervision) Act 1993 ; and (b) is for the purpose of performing any of its functions or exercising any of its powers; and (c) is made in accordance with the conditions (if any) imposed by the regulations in relation to the disclosure of information under this item. |
3 | the Superannuation Complaints Tribunal established by section 6 of the Superannuation (Resolution of Complaints) Act 1993 | (a) is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999 ; and (b) is for the purpose of the Tribunal performing any of its functions or exercising any of its powers. |
4 | the Australian Prudential Regulation Authority ( APRA ) | is for the purpose of administering: (a) the Financial Institutions Supervisory Levies Collection Act 1998 ; or |
5 | APRA | (a) is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999 ; and (b) is for the purpose of APRA performing any of its functions or exercising any of its powers. |
6 | APRA | is for the purpose of APRA performing any of its functions or exercising any of its powers in relation to * FHSAs. |
7 | an individual who is or was an employee (within the meaning of the Superannuation Guarantee (Administration) Act 1992 ) | (a) is of information that relates to the Commissioner's response to a complaint by the individual about a failure by the individual's employer or former employer to comply with the employer's obligations under the Superannuation Guarantee (Administration) Act 1992 in relation to the employee; and (b) does not relate to the general financial affairs of the employer. |
8 | any entity, court or tribunal | is of information that was obtained under, or for the purposes of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the Superannuation Industry (Supervision) Act 1993 and is for the purpose of all or any of the following: (a) identifying a particular self - managed superannuation fund; (b) enabling members of the public to contact persons who perform functions in relation to a particular self - managed superannuation fund; (c) enabling the Commissioner to provide an opinion to members of the public as to whether or not a particular self - managed superannuation fund is a complying superannuation fund in relation to a particular income year for the purposes of Division 2 of Part 5 of the Superannuation Industry (Supervision) Act 1993 ; (d) describing activity engaged in, or proposed to be engaged in, by the Commissioner in relation to a breach or suspected breach by a person of a provision of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the Superannuation Industry (Supervision) Act 1993 . |
Table 3--Records or disclosures relating to corporate regulation, business, research or policy
(4) Table 3 is as follows:
Table 3: Records or disclosures relating to corporate regulation, business, research or policy | ||
Item | The record is made for or the disclosure is to ... | and the record or disclosure ... |
1 | the Australian Securities and Investments Commission ( ASIC ) | is for the purpose of investigation or enforcement activities relating to a provision of a law that: (a) is administered by ASIC; and (b) imposes a pecuniary penalty or creates an offence. |
2 | ASIC | (a) is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999 ; and (b) is for the purpose of ASIC performing any of its functions or exercising any of its powers. |
3 | ASIC | is of information relating to superannuation and is for the purpose of administering: (a) the Superannuation Industry (Supervision) Act 1993 ; or (b) Chapter 7 of the Corporations Act 2001 (about financial services and markets); or (c) Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001 (about unconscionable conduct and consumer protection in relation to financial services). |
4 | ASIC | is for the purpose of administering Chapter 5A of the Corporations Act 2001 (relating to deregistration, and transfer of registration, of companies). |
5 | ASIC | is for the purpose of ASIC performing any of its functions or exercising any of its powers in relation to * FHSAs. |
6 | Innovation Australia established under section 6 of the Industry Research and Development Act 1986 | is for the purpose of administering any * Commonwealth law relating to venture capital. |
7 | the Secretary of the Department of the Treasury | is for the purpose of briefing the Treasurer in relation to a decision that the Treasurer may make under the Foreign Acquisitions and Takeovers Act 1975 . |
8 | the Secretary of the Department of the Treasury | (a) is of information that does not include the name, contact details or * ABN of any entity; and (b) is for the purpose of that Department estimating or analysing taxation revenue or estimating the cost of policy proposals. |
Table 4--Records or disclosures relating to other taxation matters
(5) Table 4 is as follows:
Table 4: Records or disclosures relating to other taxation matters | ||
Item | The record is made for or the disclosure is to ... | and the record or disclosure ... |
1 | a State taxation officer, or a Territory taxation officer, within the meaning of subsection 13D(1) of this Act | is for the purpose of administering a * State law or * Territory law relating to taxation, if a State taxation officer or a Territory taxation officer is authorised by law to communicate information obtained under the State law or Territory law to the Commissioner. |
2 | a State taxation officer, or a Territory taxation officer, within the meaning of subsection 13D(1) of this Act | is of: (a) information obtained under or in relation to the First Home Saver Accounts Act 2008 ; or (b) rental information or residential address information; and is for the purpose of administering the First Home Owner Grant Act 2000 of New South Wales, or a similar * State law or * Territory law. |
3 | the Development Allowance Authority established by section 94 of the Development Allowance Authority Act 1992 | is for the purpose of: (a) administering that Act; or (b) Part III of this Act (prosecutions and offences), in so far as that Part applies in relation to the Development Allowance Authority Act 1992 . |
4 | an individual who holds an office of a State or Territory, being an office prescribed for the purpose of this table item | (a) is of information that relates to alcoholic beverages; and (b) is for the purpose of the individual administering an * arrangement for the rebate, refund or other payment or credit by a State or Territory in respect of alcoholic beverages. |
Table 5--Records or disclosures relating to rehabilitation or compensation
(6) Table 5 is as follows:
Table 5: Records or disclosures relating to rehabilitation or compensation | ||
Item | The record is made for or the disclosure is to ... | and the record or disclosure ... |
1 | an authority of the Commonwealth established under a * Commonwealth law relating to rehabilitation or compensation | is for the purpose of performing any of its functions or exercising any of its powers under that law. |
2 | the * Defence Secretary | is for the purpose of administering any * Commonwealth law relating to payments in respect of dependants of members of the Defence Force. |
3 | an authority of a State or Territory that administers a * workers' compensation law | (a) is of information that relates to amounts withheld under Part 2 - 5 in Schedule 1 to this Act (about PAYG withholding); and (b) is for the purpose of ensuring that employers comply with their obligations relating to insurance or the imposition of a levy under that law. |
Table 6--Records or disclosures relating to the environment
(7) Table 6 is as follows:
Table 6: Records or disclosures relating to the environment | ||
Item | The record is made for or the disclosure is to... | and the record or disclosure... |
1 | the * Environment Secretary | is for the purpose of administering cleaner fuel grants. |
2 | the * Environment Secretary | is for the purpose of administering product stewardship (oil) benefits. |
Table 7--Records or disclosures relating to miscellaneous matters
(8) Table 7 is as follows:
Table 7: Records or disclosures relating to miscellaneous matters | ||
Item | The record is made for or the disclosure is to ... | and the record or disclosure ... |
1 | the Australian Statistician | is for the purpose of administering the Census and Statistics Act 1905 . |
2 | the Chief Executive Officer of Customs | is for the purpose of administering a law of customs (within the meaning of the Customs Administration Act 1985 ). |
3 | the * Immigration Secretary | is for the purpose of assisting in locating persons who are unlawfully in Australia. |
4 | the * Immigration Secretary | (a) is of information that relates to a holder or former holder of a visa, or an approved sponsor (within the meaning of the Migration Act 1958 ) or former approved sponsor of a person for a visa, whose identity is disclosed to a * taxation officer under section 140V of that Act; and (b) is for a purpose that is relevant to: (i) the exercise of the Minister's powers under Division 3A of Part 2 of that Act or regulations made under that Division; or (ii) the exercise of the Minister's powers under Part 8D of that Act, to the extent that it relates to a contravention of a civil penalty provision in Division 3A of Part 2 of that Act; or (iii) the administration of Division 3A of Part 2 of that Act or regulations made under that Division. |
5 | the Fair Work Ombudsman (within the meaning of the Fair Work Act 2009 ) | (a) is of the fact of an entity's actual or reasonably suspected non - compliance with a * taxation law; and (b) is for the purpose of ensuring the entity's compliance with the Fair Work Act 2009 . |
6 | the Attorney - General of a State or Territory | (a) is of information that relates to non - compliance of a private ancillary fund or charity with an * Australian law; and (b) is for the purpose of the administration of an Australian law governing trusts and charities. |
(9) To avoid doubt, the exception in table item 7 in table 2 in subsection ( 3) has effect even if at the time the complaint referred to in that item is made it is in dispute or uncertain whether the individual is an employee or former employee of the employer.
355 - 70 Exception--disclosure for law enforcement and related purposes
(1) 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.
Note 1: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code .
Note 2: 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. |
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 2013, 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: (a) a Royal Commission of a State or a Territory prescribed by the regulations for the purposes of this table item; (b) a commission of inquiry of a State or a Territory prescribed by the regulations for the purposes of this table item; (c) a board of inquiry of a State or a Territory prescribed by the regulations for the purposes of this table item | 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. |
(2A) 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
(2) Authorised ASIO officer means:
(a) the Director - General of Security holding office under the Australian Security Intelligence Organisation Act 1979 ; or
(b) any other individual employed under paragraph 84(1)(a) or (b) 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.
(3) 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.
(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 Police Integrity Commission of New South Wales; or
(i) the Office of Police Integrity of Victoria; or
(j) the Crime and Misconduct Commission of Queensland; or
(k) the Corruption and Crime Commission of Western Australia; or
(l) the Australian Securities and Investments Commission.
(5) Proceeds of crime order means an order, relating to an entity's commission of a * serious offence, under:
(a) 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
(b) Part II (about confiscation) or III (about control of property liable to confiscation) of the Proceeds of Crime Act 1987 ; or
(c) a * State law or * Territory law corresponding to a law referred to in paragraph ( a) or (b); or
(d) Division 3 of Part XIII (about recovery of pecuniary penalties for dealings in narcotic goods) of the Customs Act 1901 .
(6) 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.
(7) The following agencies are Project Wickenby taskforce agencies :
(a) the Australian Taxation Office;
(b) the Australian Crime Commission;
(c) the Australian Federal Police;
(d) the Australian Securities and Investments Commission;
(e) the Office of the Director of Public Prosecutions;
(f) a prescribed agency.
(8) The following agencies are Project Wickenby taskforce supporting agencies :
(a) the Attorney - General's Department;
(b) the Australian Transaction Reports and Analysis Centre;
(c) the Australian Government Solicitor;
(d) a prescribed agency.
(9) 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.
(10) Serious offence means an offence against an * Australian law that is punishable by imprisonment for a period exceeding 12 months.
(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.
(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.
(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.
355 - 75 Limits on disclosure to courts and tribunals
An entity who is or was a * taxation officer is not to be required to disclose to a court or tribunal * protected information that was acquired by the entity as a taxation officer except where it is necessary to do so for the purpose of carrying into effect the provisions of a * taxation law.
Note: See also section 8ZK of this Act (about protection of witnesses).
Subdivision 355 - C -- On - disclosure of protected information by other people
355 - 150 What this Subdivision is about
Someone who is not a taxation officer is prohibited from disclosing protected information, except in certain specified circumstances.
Table of sections
Operative provisions
355 - 155 Offence--on - disclosure of protected information by other people
355 - 160 Consent is not a defence
355 - 165 Generality of Subdivision not limited
355 - 170 Exception--on - disclosure of publicly available information
355 - 175 Exception--on - disclosure for original purpose
355 - 180 Exception--on - disclosure to Ministers in relation to statutory powers or functions
355 - 185 Exception--on - disclosure in relation to IGIS
355 - 190 Exception--on - disclosure in relation to ASIO
355 - 195 Exception--on - disclosure by Royal Commissions
355 - 200 Exception--records made in compliance with Australian laws
355 - 205 Limits on on - disclosure to courts or tribunals
355 - 210 Limits on on - disclosure to Ministers
355 - 155 Offence--on - disclosure of protected information by other people
An entity commits an offence if:
(a) the entity:
(i) makes a record of information; or
(ii) discloses information to another entity (other than the entity to whom the information relates or that entity's agent in relation to the information) or to a court or tribunal; and
(b) the information was acquired by the first - mentioned entity under an exception in this Subdivision or in Subdivision 355 - B; and
(c) the first - mentioned entity did not acquire the information as a * taxation officer.
Penalty: Imprisonment for 2 years.
Note: This section also covers information acquired by an entity (other than as a taxation officer) before the commencement of this section under certain repealed or amended provisions: see item 124 of Schedule 2 to the Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 20 10 .
355 - 160 Consent is not a defence
It is not a defence to a prosecution for an offence against section 355 - 155 that the entity to whom the information relates has consented to:
(a) the making of the record; or
(b) the disclosure of the information.
355 - 165 Generality of Subdivision not limited
Except as provided in section 355 - 210 (about limits on disclosure to Ministers), nothing in this Subdivision limits the generality of anything else in it.
Note: This means that each provision in this Subdivision (other than section 355 - 210) has an independent operation and is not to be interpreted by reference to any other provision within the Subdivision.
355 - 170 Exception--on - disclosure of publicly available information
Section 355 - 155 does not apply if the information was already available to the public (otherwise than as a result of a contravention of section 355 - 25, 355 - 155 or 355 - 265).
Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code .
355 - 175 Exception--on - disclosure for original purpose
(1) Section 355 - 155 does not apply if:
(a) the information was originally disclosed under an exception in Subdivision 355 - B for a purpose specified in that exception (the original purpose ); and
(b) the information was acquired by the entity under this section or an exception in Subdivision 355 - B; and
(c) the record or disclosure is made by the entity for the original purpose, or in connection with the original purpose.
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code .
Instances of disclosures in connection with the original purpose
(2) Without limiting subsection ( 1), a record or disclosure is made by the entity in connection with the original purpose if:
(a) the record is made for, or the disclosure is to, any entity, court or tribunal; and
(b) the record or disclosure is for the purpose of criminal, civil or administrative proceedings (including merits review or judicial review) that are related to the original purpose.
Multiple purposes
(3) Subsection ( 1) has effect as if a record or disclosure made by the entity for a purpose specified in column 3 of the following table were made in connection with the original purpose:
Records or disclosures for purpose connected with the original purpose | ||
Item | Original purpose | Purpose connected with the original purpose |
1 | a * purpose of the Project Wickenby taskforce | another purpose of that taskforce. |
2 | a purpose of a prescribed taskforce | another purpose of that taskforce. |
3 | one of the purposes specified in column 3 of item 1 of the table in subsection 355 - 70(1) | the other of those purposes. |
4 | one of the purposes specified in column 3 of item 6 of the table in subsection 355 - 70(1) | one of the other purposes specified in column 3 of item 6 of that table. |
355 - 180 Exception--on - disclosure to Ministers in relation to statutory powers or functions
Section 355 - 155 does not apply if:
(a) the information was originally disclosed under an exception in Subdivision 355 - B for a purpose specified in that exception (the original purpose ); and
(b) the record is made for, or the disclosure is to, a Minister who has a statutory power or function in relation to the original purpose; and
(c) the record or disclosure is for the purpose of enabling the Minister to:
(i) decide whether to exercise the power or perform the function; or
(ii) exercise the power or perform the function.
Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code .
355 - 185 Exception--on - disclosure in relation to IGIS
(1) Section 355 - 155 does not apply if:
(a) the entity is an * authorised ASIO officer; and
(b) the record is made for, or the disclosure is to, the Inspector - General of Intelligence and Security holding office under the Inspector - General of Intelligence and Security Act 1986 or a member of staff appointed to assist the Inspector - General under that Act; and
(c) the record or disclosure is for the purpose of performing the Inspector - General's, or the member of staff's, duties in relation to ASIO or officers or employees of ASIO.
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code .
(2) Section 355 - 155 does not apply if:
(a) the entity is the Inspector - General of Intelligence and Security holding office under the Inspector - General of Intelligence and Security Act 1986 or a member of staff appointed to assist the Inspector - General under that Act; and
(b) the information was acquired by the entity under subsection ( 1) or this paragraph; and
(c) the record or disclosure is for the purpose of performing the Inspector - General's, or the officer's, duties in relation to ASIO or officers or employees of ASIO.
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code .
355 - 190 Exception--on - disclosure in relation to ASIO
(1) Section 355 - 155 does not apply if:
(a) the entity is an * authorised ASIO officer; and
(b) the record is made for, or the disclosure is to, an officer of a * law enforcement agency; and
(c) the record or disclosure is for the purpose of, or in connection with:
(i) investigating a * serious offence; or
(ii) enforcing a law, the contravention of which is a serious offence; or
(iii) the making, or proposed or possible making, of a * proceeds of crime order.
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code .
(2) Section 355 - 155 does not apply if:
(a) the entity is an officer of a * law enforcement agency; and
(b) the information was acquired by the entity under subsection ( 1) or this paragraph; and
(c) the record or disclosure is for the purpose of, or in connection with:
(i) investigating a * serious offence; or
(ii) enforcing a law, the contravention of which is a serious offence; or
(iii) the making, or proposed or possible making, of a * proceeds of crime order.
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code .
355 - 195 Exception--on - disclosure by Royal Commissions
(1) Section 355 - 155 does not apply if:
(a) the entity is a member of a Royal Commission to which column 2 of item 5 of the table in subsection 355 - 70(1) relates; and
(b) the information was acquired by the entity under item 5 of the table in subsection 355 - 70(1); and
(c) the record or disclosure is in accordance with section 6P of the Royal Commissions Act 1902 .
Note 1: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code .
Note 2: Section 6P of the Royal Commissions Act 1902 sets out the circumstances in which a Royal Commission covered by that Act may disclose information it acquires in the course of its inquiry.
(2) Section 355 - 155 does not apply to particular information if the information was disclosed under subsection ( 1).
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code .
355 - 200 Exception--records made in compliance with Australian laws
Section 355 - 155 does not apply if the record is made in compliance with a requirement of an * Australian law.
Example: The Australian Taxation Office obtains information about an entity from a credit reporting agency by giving a notice under section 264 of the Income Tax Assessment Act 1936 . The agency is not committing an offence under section 355 - 155 by making a record of the disclosure in the entity's credit information file, as required by subsection 18K(5) of the Privacy Act 1988 .
Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code .
355 - 205 Limits on on - disclosure to courts or tribunals
An entity is not to be required to disclose to a court or tribunal * protected information that was acquired by the entity under Subdivision 355 - B or this Subdivision, except where it is necessary to do so for the purpose of carrying into effect the provisions of a * taxation law.
Note: See also section 8ZK of this Act (about protection of witnesses).
355 - 210 Limits on on - disclosure to Ministers
(1) Sections 355 - 170, 355 - 180 and 355 - 195 are the only exceptions to the prohibition in section 355 - 155 on which an entity who has acquired * protected information (otherwise than as a * taxation officer) can rely in making a record of the information for, or disclosing the information to, a Minister, whether or not provided to a Minister in the course of, or for the purposes of or incidental to, the transacting of the business of a House of the Parliament or of a committee of one or both Houses of the Parliament .
Note: Disclosures that are not prohibited by section 355 - 155 are not affected by this subsection. For example, an entity may disclose information to a Minister if the Minister is the entity to whom the information relates, or is another entity's agent in relation to the information.
(2) Subsection ( 1) has effect despite section 16 of the Parliamentary Privileges Act 1987 , and that section does not operate to the extent that it would otherwise apply to a disclosure of * protected information by the entity to a Minister.
Note: This subsection does not limit the operation of section 16 of the Parliamentary Privileges Act 1987 in any other respect. That section continues to operate, for example, to enable an entity to disclose protected information to a committee of one or both Houses of the Parliament.
Subdivision 355 - D -- Disclosure of protected information that has been unlawfully acquired
355 - 260 What this Subdivision is about
The disclosure of protected tax information that has been unlawfully acquired is prohibited.
Table of sections
Operative provisions
355 - 265 Offence--disclosure of protected information acquired in breach of a taxation law
355 - 270 Exception--disclosure of publicly available information
355 - 275 Exception--disclosure in relation to a taxation law
355 - 280 Limits on disclosure to courts and tribunals
355 - 265 Offence--disclosure of protected information acquired in breach of a taxation law
An entity commits an offence if:
(a) the entity:
(i) makes a record of information; or
(ii) discloses information to another entity (other than the entity to whom the information relates or that entity's agent in relation to the information) or to a court or tribunal; and
(b) the information is * protected information; and
(c) the information was acquired by the entity in breach of a provision of a * taxation law (including this provision); and
(d) the information was not acquired by the entity as a * taxation officer.
Penalty: Imprisonment for 2 years.
355 - 270 Exception--disclosure of publicly available information
Section 355 - 265 does not apply if the information was already available to the public (otherwise than as a result of a contravention of that section, or section 355 - 25 or 355 - 155).
Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code .
355 - 275 Exception--disclosure in relation to a taxation law
Section 355 - 265 does not apply:
(a) to the extent that the entity's actions are required or permitted by a * taxation law or reasonably necessary in order to comply with an obligation imposed by a taxation law; or
(b) if the record was made for or the information was disclosed:
(i) to a * taxation officer; and
(ii) for a purpose connected with administering a * taxation law.
Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code .
355 - 280 Limits on disclosure to courts and tribunals
An entity is not to be required to disclose to a court or tribunal * protected information that was acquired by the entity under this Subdivision, except where it is necessary to do so for the purpose of carrying into effect the provisions of a * taxation law.
Note: See also section 8ZK of this Act (about protection of witnesses).
Subdivision 355 - E -- Other matters
355 - 320 What this Subdivision is about
The Commissioner may require a taxation officer to make an oath of affirmation to protect information.
The Federal Court has power to grant an injunction restraining an entity from engaging in conduct that would constitute an offence against this Division.
The Commissioner must issue instructions relating to the disclosure of protected tax information.
Table of sections
Operative provisions
355 - 325 Oath or affirmation to protect information
355 - 330 Injunctions to prevent contravention of non - disclosure provisions
355 - 325 Oath or affirmation to protect information
(1) A * taxation officer must, if and when required by the Commissioner to do so, make an oath or affirmation to protect information in accordance with this Division.
(2) The Commissioner may determine, in writing:
(a) the form of the oath or affirmation; and
(b) the manner in which the oath or affirmation must be made.
355 - 330 Injunctions to prevent contravention of non - disclosure provisions
Injunctions
(1) If an entity has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute an offence against this Division, the Federal Court of Australia may, on the application of the Commissioner, grant an injunction:
(a) restraining the entity from engaging in the conduct; and
(b) if in the court's opinion it is desirable to do so--requiring the entity to do any act or thing.
Interim injunctions
(2) If an application is made to the court for an injunction under subsection ( 1), the court may, before considering the application, grant an interim injunction restraining an entity from engaging in conduct of the kind referred to in that subsection pending the determination of the application.
Discharge or variation of injunctions
(3) The court may discharge or vary an injunction granted under this section.
Exercise of power to grant injunctions
(4) If an application is made to the court for the grant of an injunction restraining an entity from engaging in conduct of a particular kind, the power of the court to grant the injunction may be exercised:
(a) if the court is satisfied that the entity has engaged in conduct of that kind--whether or not it appears to the court that the entity intends to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, in the event that an injunction is not granted, it is likely that the entity will engage in conduct of that kind--whether or not the entity has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any other entity if the entity engages in conduct of that kind.
(5) The power of the court to grant an injunction requiring an entity to do a particular act or thing may be exercised:
(a) if the court is satisfied that the entity has refused or failed to do that act or thing--whether or not it appears to the court that the entity intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, in the event that an injunction is not granted, it is likely that the entity will refuse or fail to do that act or thing--whether or not the entity has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any other entity if the entity refuses or fails to do that act or thing.
No undertakings as to damages
(6) If the Commissioner makes an application to the court for the grant of an injunction under this section, the court must not require the Commissioner or any other entity, as a condition of the granting of an interim injunction, to give any undertakings as to damages.
Other powers of the court unaffected
(7) The powers conferred on the court under this section are in addition to, and not in derogation of, any other powers of the court, whether conferred by this Act or otherwise.
355 - 335 Procedures for disclosing protected information
(1) The Commissioner must issue instructions in relation to the procedures to be followed by * taxation officers in disclosing * protected information under the exceptions in sections 355 - 55 (about disclosures to Ministers), 355 - 65 (about disclosures for other government purposes) and 355 - 70 (about disclosures for law enforcement and related purposes).
(2) The instructions must:
(a) be issued within 6 months after the commencement of this section; and
(b) be in writing; and
(c) provide for the matters mentioned in subsection ( 3); and
(d) be published on the Australian Taxation Office website.
(3) The matters are:
(a) the processes to be followed before * protected information can be disclosed by a * taxation officer under the exceptions in sections 355 - 55, 355 - 65 and 355 - 70; and
(b) the processes involved in obtaining and giving the agreement mentioned in paragraphs 355 - 55(1)(c) and 355 - 70(1)(c); and
(c) other matters the Commissioner considers appropriate.
(4) Without limiting subsection 33(3) of the Acts Interpretation Act 1901 , the Commissioner may vary or revoke the instructions.
(5) A failure to comply with the time limit in paragraph ( 2)(a) does not:
(a) prevent the Commissioner from issuing the instructions after this time; or
(b) affect the validity of the instructions when issued.
(6) A failure to comply with the instructions does not, of itself, mean that a * taxation officer is not entitled to rely on the exceptions in sections 355 - 55, 355 - 65 and 355 - 70.
(7) The instructions are not a legislative instrument.
Part 2 -- Application of amendment
2 Application of amendment
The amendment made by item 1 of this Schedule applies to records and disclosures of information made on or after the commencement of this Schedule (whenever the information was acquired).
3 Transitional--authorised representatives
(1) If:
(a) at any time before the commencement of this item, an entity (the covered entity ) had been nominated by another entity (the primary entity ) to act on the primary entity's behalf with respect to protected information that relates to the primary entity; and
(b) immediately before the commencement of this item, the nomination was in force;
the covered entity is taken, on and after that commencement, to be an entity covered by subsection 355 - 25(2) in Schedule 1 to the Taxation Administration Act 1953 .
(2) To avoid doubt, subitem ( 1) does not prevent the primary entity from revoking the nomination.