Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010 (Cth)

Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010 No. 145, 2010 Compilation No. 1 Compilation date: 17 December 2010 Includes amendments up to: Act No. 67, 2016 Registered: 2 November 2016 About this compilation This compilation This is a compilation of the Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010 that shows the text of the law as amended and in force on 17 December 2010 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Confidentiality of taxpayer information Part 1—Main amendment Taxation Administration Act 1953 Part 2—Application of amendment Schedule 2—Consequential amendments Part 1—Amendments Administrative Decisions (Judicial Review) Act 1977 A New Tax System (Australian Business Number) Act 1999 Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 Australian Crime Commission Act 2002 Australian Securities and Investments Commission Act 2001 Crimes (Taxation Offences) Act 1980 Customs Administration Act 1985 Development Allowance Authority Act 1992 Energy Grants (Cleaner Fuels) Scheme Act 2004 Energy Grants (Credits) Scheme Act 2003 Excise Act 1901 First Home Saver Accounts Act 2008 Franchise Fees Windfall Tax (Collection) Act 1997 Freedom of Information Act 1982 Fringe Benefits Tax Assessment Act 1986 Income Tax Assessment Act 1936 Income Tax Assessment Act 1997 Income Tax (Transitional Provisions) Act 1997 Inspector‑General of Intelligence and Security Act 1986 International Tax Agreements Act 1953 Petroleum Resource Rent Tax Assessment Act 1987 Pooled Development Funds Act 1992 Privacy Act 1988 Product Grants and Benefits Administration Act 2000 Product Stewardship (Oil) Act 2000 Retirement Savings Accounts Act 1997 Small Superannuation Accounts Act 1995 Superannuation Contributions Tax (Assessment and Collection) Act 1997 Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 Superannuation (Government Co‑contribution for Low Income Earners) Act 2003 Superannuation Guarantee (Administration) Act 1992 Superannuation Industry (Supervision) Act 1993 Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 Superannuation (Unclaimed Money and Lost Members) Act 1999 Tax Agent Services Act 2009 Taxation Administration Act 1953 Taxation (Interest on Overpayments and Early Payments) Act 1983 Termination Payments Tax (Assessment and Collection) Act 1997 Trust Recoupment Tax Assessment Act 1985 Part 2—Application, transitional and savings provisions Schedule 3—Other amendments Income Tax Assessment Act 1936 Income Tax Assessment Act 1997 Taxation Administration Act 1953 Schedule 4—Repeal A New Tax System (Bonuses for Older Australians) Act 1999 Schedule 5—Regulations about transitional matters Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to amend the law relating to confidentiality of information acquired under the taxation laws, and for other purposes 1 Short title This Act may be cited as the Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 16 December 2010 2. Schedules 1 to 5 The day after this Act receives the Royal Assent. 17 December 2010 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Confidentiality of taxpayer information Part 1—Main amendment Taxation 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‑E Other matters Guide to Division 355 355‑1 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: * sections 32 and 33 of the Auditor‑General Act 1997; * section 15 of the Inspector‑General of Taxation Act 2003; * section 9 of the Ombudsman Act 1976; * section 44 of the Privacy Act 1988. Subdivision 355‑A—Objects and application of Division Table of sections 355‑10 Objects of Division 355‑15 Application of Division 355‑10 Objects 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 Guide to Subdivision 355‑B 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 Operative provisions 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 relation 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 Social 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 (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) any other agency (including a foreign agency) specified in the regulations (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 (b) the Superannuation Industry (Supervision) Act 1993. 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