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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Inspector-General
of Taxation Bill 2002
No. ,
2002
(Treasury)
A Bill
for an Act to provide for the appointment of an Inspector-General of Taxation,
and for related purposes
Contents
Freedom of Information Act
1982 33
National Crime Authority Act
1984 33
A Bill for an Act to provide for the appointment of an
Inspector-General of Taxation, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Inspector-General of Taxation Act
2002.
This Act commences on the day after it receives the Royal
Assent.
The object of this Act is to improve the administration of the tax
laws for the benefit of all taxpayers.
Inspector-General means the Inspector-General of Taxation
referred to in section 6.
Inspector-General’s staff means:
(a) the staff referred to in subsection 36(1); and
(b) any employees or officers whose services are made available as
referred to in subsection 36(3); and
(c) any consultants engaged under subsection 36(4).
review means a review referred to in
section 7.
tax law means:
(a) an Act, or a part of an Act, which the Commissioner of Taxation
administers, or of which the Commissioner has the general administration;
or
(b) an Act, or a part of an Act, to the extent it contains powers or
functions that are delegated to the Commissioner of Taxation or to other tax
officials; or
(c) regulations, or other subordinate legislation, made under an Act, or a
part of an Act, covered by paragraph (a) or (b).
tax official means:
(a) the Commissioner of Taxation; or
(b) a Second Commissioner of Taxation; or
(c) a Deputy Commissioner of Taxation; or
(d) a person engaged under the Public Service Act 1999, or an
employee or officer of an authority of the Commonwealth, performing duties in
the Australian Taxation Office; or
(e) a person engaged on behalf of the Commonwealth by the Commissioner of
Taxation, or by another tax official, to provide services related to the
administration of the tax laws; or
(f) a person who:
(i) is a member of a body established for the sole purpose of assisting
the Commissioner of Taxation in the administration of an aspect of the tax laws;
and
(ii) receives, or is entitled to receive, remuneration (but not merely
allowances) from the Commonwealth in respect of his or her membership of the
body.
taxpayer means a person or other entity who is, was, or may
become, liable to pay tax under any tax law.
This Act applies both within and outside Australia and extends to every
external Territory.
There is to be an Inspector-General of Taxation.
(1) The functions of the Inspector-General are:
(a) to review:
(i) systems established by the Australian Taxation Office to administer
the tax laws, including systems for dealing or communicating with the public
generally, or with particular people or organisations, in relation to the
administration of the tax laws; and
(ii) systems established by tax laws, but only to the extent that the
systems deal with administrative matters; and
(b) to report on those reviews, setting out:
(i) the subject and outcome of the review; and
(ii) any recommendations that the Inspector-General thinks appropriate
concerning how the system reviewed could be improved.
(2) The reference in subparagraph (1)(a)(ii) to administrative
matters includes, for example, the process for assessing, collecting, paying or
recovering amounts under a tax law, or the enforcement of a tax law. However, it
does not include rules imposing or creating an obligation to pay an amount under
a tax law, or rules dealing with the quantification of such an amount.
(1) The Inspector-General may conduct a review on his or her own
initiative.
Note: For example, the Inspector-General may conduct a
review on a matter that has been drawn to his or her attention by taxpayers, tax
professionals or the Commonwealth Ombudsman.
(2) The Inspector-General may be directed, in writing, by the Minister to
conduct a review. The Inspector-General must comply with the
direction.
(3) The Inspector-General may be requested to conduct a review
by:
(a) the Minister; or
(b) the Commissioner of Taxation; or
(c) a resolution of either House, or of both Houses, of the Parliament;
or
(d) a resolution of a Committee of either House, or of both Houses, of the
Parliament.
However, the Inspector-General is not required to comply with the
request.
(1) The Inspector-General has discretion in setting his or her work
program (subject to subsection 8(2) and subsection (2) of this
section).
(2) The Inspector-General must consult the Commonwealth Ombudsman and the
Commonwealth Auditor-General, at least once a year, to assist the
Inspector-General in setting his or her work program.
After completing a review, the Inspector-General must make a written
report to the Minister setting out:
(a) the subject and outcome of the review; and
(b) any recommendations that the Inspector-General thinks appropriate
concerning how the system reviewed could be improved.
Note: For limitations on what may be included in reports
under this section, see the following provisions:
(a) section 22 (information that would be prejudicial
to the public interest);
(b) section 23 (taxpayer information);
(c) section 24 (identifying tax
officials);
(d) section 25 (criticising the ATO or tax
officials);
(e) section 26 (confidential
submissions);
(f) section 27 (legal professional
privilege).
The Minister may cause a report under section 10, or a part of a
report, to be tabled in each House of the Parliament, or otherwise made publicly
available.
Actual conduct of a review
(1) This Division confers powers that may be exercised for the purposes of
conducting a review.
Deciding whether to conduct a review
(2) The powers conferred by this Division also apply for the purposes of
deciding whether a review should be conducted. For this purpose:
(a) a reference to conducting a review is taken to be a reference to
making such a decision; and
(b) a reference to submissions, information, documents or questions
relevant to a review is taken to be a reference to submissions, information,
documents or questions relevant to making such a decision; and
(c) documents produced under section 14 or 15 for the purpose of
making such a decision may, if the decision is that a review is to be conducted,
continue to be kept under section 19 for as long as is necessary for the
purposes of conducting the review.
Inviting submissions
(1) For the purposes of conducting a review, the Inspector-General may
invite members of the public generally, or particular people or organisations,
to make submissions relevant to the review.
Note 1: Section 17 protects a person making a
submission in good faith from liability to damages.
Note 2: Section 18 provides that making a submission
does not result in a loss of legal professional privilege.
Process for inviting or making submissions
(2) The Inspector-General has discretion in deciding matters connected
with the process for inviting or making submissions, including:
(a) how to communicate the invitation; and
(b) how submissions may be made.
Note: For example, the Inspector-General
may:
(a) advertise in the press or other media seeking written
submissions from the public; or
(b) contact particular people or organisations inviting them
to attend a meeting at which they may make oral submissions.
Submissions may be made publicly available
(3) The Inspector-General may, in any way he or she thinks appropriate,
make any submission, or a written record (which may be a summary) of any oral
submission, available to the public generally, or to particular people or
organisations.
Note: For restrictions on the power given by this
subsection, see the following provisions:
(a) section 22 (information that would be prejudicial
to the public interest);
(b) section 23 (taxpayer information);
(c) section 24 (identifying tax
officials);
(d) section 26 (confidential
submissions).
For the purposes of conducting a review, the Inspector-General may
request the Commissioner of Taxation:
(a) to give the Inspector-General, or a member of the
Inspector-General’s staff, information relevant to the review, or arrange
for another tax official to do so; or
(b) to produce to the Inspector-General, or a member of the
Inspector-General’s staff, documents relevant to the review, or arrange
for another tax official to do so; or
(c) to attend before the Inspector-General, or a member of the
Inspector-General’s staff, to answer questions relevant to the review, or
arrange for another tax official to do so.
Note 1: For restrictions on the power given by this section,
see section 22 (information that would be prejudicial to the public
interest).
Note 2: Section 17 protects a person complying with a
request in good faith from liability to a penalty or damages.
Note 3: Section 18 provides that compliance with a
request does not result in a loss of legal professional
privilege.
Application of section
(1) This section applies to a person who is or was a tax official if the
Inspector-General has reason to believe that the person:
(a) has information or documents relevant to a review; or
(b) is capable of giving evidence that is relevant to a review.
Inspector-General may require information, documents etc.
(2) The Inspector-General may, by written notice given to the person,
require the person:
(a) to give the information to the Inspector-General, or a member of the
Inspector-General’s staff, by the time, and in the manner and form,
specified in the notice; or
(b) to produce the documents to the Inspector-General, or a member of the
Inspector-General’s staff, by the time, and in the manner, specified in
the notice; or
(c) to attend before the Inspector-General, or a member of the
Inspector-General’s staff, at the time and place specified in the notice,
and answer questions relevant to the review.
Note 1: For restrictions on the power given by this
subsection, see section 22 (information that would be prejudicial to the
public interest).
Note 2: Section 16 removes certain excuses that might
otherwise justify non-compliance with a requirement.
Note 3: Section 17 protects a person complying with a
requirement in good faith from liability to a penalty or
damages.
Note 4: Section 18 provides that compliance with a
requirement does not result in a loss of legal professional
privilege.
People must be given at least 14 days to comply
(3) The time specified under paragraph (2)(a), (b) or (c) must be at
least 14 days after the notice is given.
Information or answers may be required to be given on oath
etc.
(4) The Inspector-General may require the information or answers to be
verified by, or given on, oath or affirmation, and either orally or in writing.
For that purpose, the Inspector-General, or a member of the
Inspector-General’s staff, may administer the oath or
affirmation.
(5) The oath or affirmation is an oath or affirmation that the information
or answers are or will be true.
Offence
(6) The person commits an offence if:
(a) the person has been given a notice under subsection (2);
and
(b) the person fails:
(i) to give the required information by the time, and in the manner and
form, specified in the notice; or
(ii) to produce the required documents by the time, and in the manner,
specified in the notice; or
(iii) to attend to answer questions at the time and place specified in the
notice; or
(iv) to answer questions relevant to the review while attending as
required by the notice.
Penalty: Imprisonment for 6 months.
Excuses that are not available
(1) A person is not excused from giving information, producing a document,
or answering a question, under section 15 on the ground that to do
so:
(a) would contravene any other law; or
(b) might tend to incriminate the person or otherwise expose the person to
a penalty or other liability; or
(c) would disclose material that is protected against disclosure by legal
professional privilege or any other duty of confidence; or
(d) would be otherwise contrary to the public interest.
Note: See section 27 for other provisions about legal
professional privilege.
Use/derivative use indemnity
(2) However, neither:
(a) the information or answer given or the document produced;
nor
(b) any information, document or thing obtained as a direct or indirect
consequence of giving the information or answer or producing the
document;
is admissible in evidence against the person in proceedings, other
than:
(c) proceedings for an offence against subsection 15(6); or
(d) proceedings for an offence against section 137.1 or 137.2 of the
Criminal Code (false or misleading information or documents) that relates
to this Act; or
(e) proceedings for an offence against section 149.1 of the
Criminal Code (obstruction of Commonwealth public officials) that relates
to this Act.
(1) A person who, in good faith, makes a submission in response to an
invitation under section 13 is not liable to civil proceedings for loss,
damage or injury of any kind suffered by another person because of that
conduct.
(2) A person who, in good faith:
(a) gives information; or
(b) produces a document; or
(c) answers a question;
when requested or required to do so under section 14 or 15 is not
liable:
(d) to any proceedings for contravening any other law because of that
conduct; or
(e) to civil proceedings for loss, damage or injury of any kind suffered
by another person because of that conduct.
Information or a document does not cease to be the subject of legal
professional privilege merely because it is:
(a) included or referred to in a submission made in response to an
invitation under section 13; or
(b) given or produced in response, or included or referred to in a
response, to a request or requirement made under section 14 or 15;
or
(c) referred to in answering a question asked pursuant to a request or
requirement made under section 14 or 15.
Inspector-General may keep documents
(1) The Inspector-General may take possession of a document produced under
section 14 or 15 and keep it for as long as is necessary for the purposes
of conducting the review to which the document is relevant.
Certified copy to be supplied to person entitled to
document
(2) The person otherwise entitled to possession of the document is
entitled to be supplied, as soon as practicable, with a copy certified by the
Inspector-General to be a true copy.
Certified copy to be treated as original
(3) The certified copy must be received in all courts and tribunals as
evidence as if it were the original.
Right to inspect and copy the original
(4) Until a certified copy is supplied, the Inspector-General must, at
such times and places as the Inspector-General thinks appropriate, permit the
person otherwise entitled to possession of the document (or a person authorised
by that person) to inspect and make copies of all or part of the
document.
The Inspector-General may make and keep copies of all or part of any
documents produced under section 14 or 15.
The Commissioner of Taxation must comply with (or ensure compliance with)
any reasonable request made by the Inspector-General for access by the
Inspector-General, or a member of the Inspector-General’s staff, to any
premises occupied by the Australian Taxation Office for the purposes
of:
(a) receiving information or documents under section 14 or 15;
or
(b) asking questions under section 14 or 15.
Minister’s power to certify that disclosure of information would
be prejudicial
(1) The Minister may give the Inspector-General a certificate stating that
the disclosure of information relating to a specified matter would:
(a) prejudice the security, defence or international relations of the
Commonwealth; or
(b) prejudice negotiations relating to a treaty or other international
agreement; or
(c) be contrary to a treaty or other international agreement; or
(d) prejudice relations between the Commonwealth and a State or Territory;
or
(e) involve the disclosure of deliberations or decisions of the Cabinet or
of a Committee of the Cabinet; or
(f) involve the disclosure of deliberations or advice of the Executive
Council; or
(g) prejudice the prevention, investigation or prosecution of an offence
against any law; or
(h) prejudice the prevention or investigation of, or the conduct of
proceedings for recovery of civil penalties brought with respect to, other
contraventions of any law; or
(i) be contrary to an order of a court or tribunal; or
(j) be contrary to the public interest for any other reason that could
form the basis for a claim in a judicial proceeding that information relating to
the matter should not be disclosed or documents relating to the matter should
not be produced; or
(k) endanger the safety of any person; or
(l) prejudice the revenue of the Commonwealth.
Certificates may have effect for information-gathering powers and/or
reporting obligations
(2) A certificate may be expressed to have effect for the purposes of
either or both of the following:
(a) the Inspector-General’s information-gathering powers;
(b) the Inspector-General’s reporting obligations.
However, a certificate based on the ground referred to in
paragraph (1)(l) must only be expressed to have effect for the purposes of
the Inspector-General’s reporting obligations.
Effect of certificate on information-gathering powers
(3) The following provisions apply while a certificate that is expressed
to have effect for the purposes of the Inspector-General’s
information-gathering powers is in force:
(a) a submission, or a record of a submission, that contains information
relating to the matter specified in the certificate must not be made available
under subsection 13(3);
(b) a person must not be requested or required under section 14 or 15
to give information, produce documents, or answer questions, relating to the
matter specified in the certificate;
(c) any request or requirement made under section 14 or 15 before the
certificate was given ceases to have effect, so far as it relates to the matter
specified in the certificate.
Effect of certificate on reporting obligations
(4) While a certificate that is expressed to have effect for the purposes
of the Inspector-General’s reporting obligations is in force, information
relating to the matter specified in the certificate must not be included in a
report under section 10 or 41.
Reports not to include information relating to a taxpayer’s
affairs
(1) Information relating to a particular taxpayer’s affairs must not
be included in a report under section 10 or 41 if:
(a) the taxpayer is named, or otherwise specifically identified, in the
report as the taxpayer to whom the information relates; or
(b) it is reasonably likely that people generally (other than people to
whom the taxpayer has disclosed information relating to the taxpayer’s
affairs) would be able to work out the identity of the taxpayer to whom the
information relates.
Submissions not to be made available if they include information
relating to a taxpayer’s affairs
(2) A submission, or a record of a submission, that contains information
relating to a particular taxpayer’s affairs must not be made available
under subsection 13(3) if:
(a) the taxpayer is named, or otherwise specifically identified, in the
submission or record as the taxpayer to whom the information relates;
or
(b) it is reasonably likely that people to whom the submission or record
is proposed to be made available (other than people to whom the taxpayer has
disclosed information relating to the taxpayer’s affairs) would be able to
work out the identity of the taxpayer to whom the information relates.
Note: This subsection applies even when the information
relates to the submission-maker’s own affairs.
Matters to be taken into account in “reasonably likely”
test
(3) For the purposes of applying paragraphs (1)(b) and (2)(b) to
information relating to a particular taxpayer’s affairs, the context in
which the information appears, and information that is otherwise publicly
available, must be taken into account (as well as any other relevant
matter).
Reports generally not to name tax officials
(1) A report under section 10 or 41 must not name, or otherwise
specifically identify, a particular tax official, other than the Commissioner of
Taxation, as being a person whose conduct has been considered in the course of a
review.
Submissions not to be made available if they name tax
officials
(2) A submission, or a record of a submission, must not be made available
under subsection 13(3) if it names, or otherwise specifically identifies, a
particular tax official, other than the Commissioner of Taxation.
However this does not apply to references to parts of the
ATO
(3) For the purposes of this section, merely naming, or otherwise
specifically identifying, a part of the Australian Taxation Office does not
constitute naming or identifying a particular tax official.
Proposal to include criticism of the ATO or tax officials in a
report
(1) This section applies if it is proposed to include in a report under
section 10 or 41 material that is expressly or impliedly critical
of:
(a) the Australian Taxation Office or a part of the Australian Taxation
Office; or
(b) a tax official or a group of tax officials.
Commissioner to be given opportunity to make submissions
(2) The material must not be included in the report unless the
Inspector-General has given the Commissioner of Taxation, or a person authorised
in writing by the Commissioner, a reasonable opportunity to make
submissions to the Inspector-General in relation to the subject of the
criticism.
Note: Compliance with this subsection for the purposes of
including material in a report under section 10 also counts as compliance
for the purposes of including substantially the same material in a report under
section 41.
How submissions may be made
(3) The Commissioner or the authorised person may choose to make either or
both written or oral submissions.
(4) If the Commissioner or the authorised person chooses to make oral
submissions, the Commissioner or authorised person may:
(a) make the submissions personally; or
(b) choose another person to make the submissions on the
Commissioner’s or authorised person’s behalf (whether or not the
Commissioner or authorised person is present during those
submissions).
Protection from liability for people making submissions
(5) A person who, in good faith, makes a submission under this section is
not liable:
(a) to any proceedings for contravening any other law because of that
conduct; or
(b) to civil proceedings for loss, damage or injury of any kind suffered
by another person because of that conduct.
No loss of legal professional privilege
(6) Information or a document does not cease to be the subject of legal
professional privilege merely because it is included or referred to in a
submission made under this section.
Confidential submissions not to be made available or
reported
(1) If a person who makes a submission under section 13 has told the
Inspector-General, or a member of the Inspector-General’s staff, that the
submission is to be kept confidential, then:
(a) the submission, or a record of the submission, must not be made
available under subsection 13(3); and
(b) information contained in the submission must not be included in a
report under section 10 or 41.
Restriction does not apply if same information is obtained by other
means
(2) However, paragraph (1)(b) does not prevent the inclusion in a
report of information contained in a submission if the same information has also
been obtained by the Inspector-General, or a member of the
Inspector-General’s staff, by other means.
Reports not to include privileged information or documents
(1) Information or a document:
(a) that has been given or produced to the Inspector-General, or a member
of the Inspector-General’s staff, under section 14, 15 or 25;
and
(b) that is:
(i) the subject of legal professional privilege; or
(ii) derived from information or a document that is the subject of legal
professional privilege;
must not be included in a report under section 10 or 41.
Limited power to refer in reports to privileged legal
advice
(2) Despite subsection (1), a report may include a
statement:
(a) to the effect that legal advice (being advice contained in information
or a document that was given or produced as referred to in
paragraph (1)(a)) was considered in the course of the review; and
(b) outlining, in general terms, the relevance of that advice, or of any
aspect of it, to the review.
However, in doing so, the other provisions of this Division must still be
complied with.
Subsection (2) does not otherwise affect privilege
(3) If a report includes a statement relating to legal advice as referred
to in subsection (2), the advice does not cease to be the subject of legal
professional privilege merely because:
(a) the report includes that statement; or
(b) the report is given to the Minister; or
(c) the report, or any part of it, is tabled or otherwise made publicly
available by the Minister.
Appointment by Governor-General on full-time basis
(1) The Inspector-General is to be appointed by the Governor-General by
written instrument. The appointment is to be on a full-time basis.
Obligation to fill vacancy as soon as practicable
(2) Whenever a vacancy occurs in the office of Inspector-General, an
appointment must be made to the office as soon as practicable.
Period of appointment
(3) The Inspector-General holds office for the period specified in the
instrument of appointment. The period must not exceed 5 years.
Terms and conditions not covered by this Act
(4) The Inspector-General holds office on the terms and conditions (if
any) in relation to matters not covered by this Act that are determined by the
Governor-General.
(1) The Minister may appoint a person to act as the
Inspector-General:
(a) during a vacancy in the office of Inspector-General (whether or not an
appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Inspector-General
is absent from duty or from Australia, or is, for any reason, unable to perform
the duties of the office.
(2) Anything done by or in relation to a person purporting to act under an
appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(1) The Inspector-General is to be paid the remuneration that is
determined by the Remuneration Tribunal. If no determination of that
remuneration by the Tribunal is in operation, the Inspector-General is to be
paid the remuneration that is prescribed.
(2) The Inspector-General is to be paid the allowances that are
prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
(1) The Inspector-General has the recreation leave entitlements that are
determined by the Remuneration Tribunal.
(2) The Minister may grant the Inspector-General leave of absence, other
than recreation leave, on the terms and conditions as to remuneration or
otherwise that the Minister determines.
The Inspector-General must not engage in paid employment outside the
duties of his or her office without the Minister’s
approval.
The Inspector-General must give written notice to the Minister of
all interests (financial or otherwise) that the Inspector-General has or
acquires and that could conflict with the proper performance of the
Inspector-General’s functions.
The Inspector-General may resign his or her appointment by giving the
Governor-General a written resignation.
Obligation to terminate on certain grounds
(1) The Governor-General must terminate the appointment of the
Inspector-General if the Inspector-General:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(c) compounds with his or her creditors; or
(d) assigns his or her remuneration for the benefit of his or her
creditors; or
(e) is absent from duty, except on leave of absence, for 14 consecutive
days or for 28 days in any 12 months; or
(f) fails to comply with section 32 (engaging in other paid work);
or
(g) fails, without reasonable excuse, to comply with section 33
(disclosure of interests).
Discretion to terminate for misbehaviour or physical or mental
incapacity
(2) Subject to subsections (3) and (4), the Governor-General may
terminate the appointment of the Inspector-General on the ground of misbehaviour
or physical or mental incapacity.
(3) If the Inspector-General:
(a) is an eligible employee for the purposes of the Superannuation Act
1976; and
(b) has not reached his or her maximum retiring age within the meaning of
that Act;
his or her appointment cannot be terminated on the ground of physical or
mental incapacity unless the CSS Board has given a certificate under
section 54C of that Act.
(4) If the Inspector-General:
(a) is a member of the superannuation scheme established by deed under the
Superannuation Act 1990; and
(b) is under 60 years of age;
his or her appointment cannot be terminated on the ground of physical or
mental incapacity unless the PSS Board has given a certificate under
section 13 of that Act.
Staff engaged under the Public Service Act
(1) The staff required to assist the Inspector-General in the performance
of the Inspector-General’s functions are to be persons engaged under the
Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Inspector-General and the APS employees so assisting the
Inspector-General together constitute a Statutory Agency; and
(b) the Inspector-General is the Head of that Statutory Agency.
Secondments and similar arrangements
(3) The Inspector-General may arrange with an Agency Head (within the
meaning of the Public Service Act 1999) for the services of employees or
officers of the Agency to be made available to the Inspector-General.
Consultants
(4) The Inspector-General may, on behalf of the Commonwealth, engage
persons having suitable qualifications and experience as consultants to the
Inspector-General. The terms and conditions of the engagement of a person are
such as are determined by the Inspector-General.
Definitions
(1) In this section:
person to whom this section applies means a person who is or
was:
(a) the Inspector-General; or
(b) a member of the Inspector-General’s staff.
protected document means a document that:
(a) is obtained or made by a person to whom this section applies in the
course of, or because of, the person’s functions, powers or duties under
or in relation to this Act; and
(b) contains information relating to a taxpayer’s affairs.
protected information means information that:
(a) is disclosed to, or obtained by, a person to whom this section applies
in the course of, or because of, the person’s functions, powers or duties
under or in relation to this Act; and
(b) relates to a taxpayer’s affairs.
Protected information may be recorded or disclosed only for purposes of
this Act
(2) A person to whom this section applies commits an offence if:
(a) the person:
(i) makes a copy or other record of any protected information or of all or
part of any protected document; or
(ii) discloses any protected information to another person or to a court
or tribunal; or
(iii) produces all or part of a protected document to another person or to
a court or tribunal; and
(b) in doing so, the person is not acting in the course of performing or
exercising functions, powers or duties under or in relation to this
Act.
Penalty: Imprisonment for 2 years.
Courts generally cannot require protected information to be disclosed
etc.
(3) A person to whom this section applies cannot be required to:
(a) disclose any protected information to a court or tribunal;
or
(b) produce all or part of a protected document to a court or
tribunal;
unless that disclosure or production is necessary for the purpose of
carrying into effect the provisions of this Act.
If the Inspector-General forms the opinion either before, during or after
conducting a review:
(a) that a person who is or was a tax official has engaged in
misconduct; and
(b) that the evidence is of sufficient weight to justify the
Inspector-General doing so;
the Inspector-General must report the evidence to:
(c) if the person is or was the Commissioner of Taxation—the
Minister; or
(d) otherwise—the Commissioner.
Actually causing detriment to another person
(1) A person (the first person) commits an offence
if:
(a) the first person engages in conduct; and
(b) the first person’s conduct causes any detriment to another
person (the second person); and
(c) the first person intends that his or her conduct cause detriment to
the second person; and
(d) the detriment is caused without the consent of the second person;
and
(e) the first person engages in his or her conduct because the second
person or a third person:
(i) gave, or may give, information when requested or required to do so
under section 14 or 15; or
(ii) produced, or may produce, a document when requested or required to do
so under section 14 or 15; or
(iii) attended, or may attend, to answer questions when requested or
required to do so under section 14 or 15; or
(iv) answered, or may answer, questions while attending to answer
questions when requested or required to do so under section 14 or 15;
or
(v) is expressly or impliedly referred to in a report under
section 10 or 41; or
(vi) is the subject of a report under section 38.
Penalty: Imprisonment for 6 months.
Threatening to cause detriment to another person
(2) A person (the first person) commits an offence
if:
(a) the first person makes to another person (the second
person) a threat to cause any detriment to the second person or to a
third person; and
(b) the first person:
(i) intends the second person to fear that the threat will be carried out;
or
(ii) is reckless as to causing the second person to fear that the threat
will be carried out; and
(c) the first person makes the threat because a person:
(i) gave, or may give, information when requested or required to do so
under section 14 or 15; or
(ii) produced, or may produce, a document when requested or required to do
so under section 14 or 15; or
(iii) attended, or may attend, to answer questions when requested or
required to do so under section 14 or 15; or
(iv) answered, or may answer, questions while attending to answer
questions when requested or required to do so under section 14 or 15;
or
(v) is expressly or impliedly referred to in a report under
section 10 or 41; or
(vi) is the subject of a report under section 38.
Penalty: Imprisonment for 6 months.
(3) For the purposes of subsection (2), a threat may
be:
(a) express or implied; or
(b) conditional or unconditional.
(4) In a prosecution for an offence against subsection (2), it is not
necessary to prove that the person threatened actually feared that the threat
would be carried out.
(1) This section applies to the following persons (protected
persons):
(a) the Minister;
(b) the Inspector-General;
(c) a person acting under the Inspector-General’s
authority.
(2) A protected person is not liable to civil proceedings for loss, damage
or injury of any kind suffered by another person as a result of the performance
or exercise, in good faith, of the protected person’s functions, powers or
duties under or in relation to this Act.
Annual report to be given to Minister
(1) The Inspector-General must, as soon as practicable after 30 June
in each year, prepare and give to the Minister a report (an annual
report) on the operations of the Inspector-General during the year that
ended on that 30 June.
Note: For limitations on what may be included in reports
under this section, see the following provisions:
(a) section 22 (information that would be prejudicial
to the public interest);
(b) section 23 (taxpayer information);
(c) section 24 (identifying tax
officials);
(d) section 25 (criticising the ATO or tax
officials);
(e) section 26 (confidential
submissions);
(f) section 27 (legal professional
privilege).
Details of any subsection 8(2) directions to be included
(2) The report must include details of any directions given by the
Minister under subsection 8(2) during the year.
Annual report to be tabled in Parliament
(3) The Minister must cause a copy of each annual report to be tabled in
each House of the Parliament within 15 sitting days of that House after the day
on which the Minister receives the report.
The Inspector-General may delegate all or any of the following powers to
a member of the Inspector-General’s staff:
(a) the Inspector-General’s powers under section 13 to invite
submissions, to decide matters connected with the process for inviting or making
submissions, and to make submissions available;
(b) the Inspector-General’s power under section 21 to request
access to premises;
(c) the Inspector-General’s power under section 25 to give a
reasonable opportunity to make submissions;
(d) the Inspector-General’s powers under subsections 36(3) and (4)
to make arrangements and engage consultants (including determining the terms and
conditions of their engagement).
General power to make regulations
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
Regulations about fees and allowances for expenses
(2) Without limiting subsection (1), the regulations may provide for
a person who attends before the Inspector-General, or a member of the
Inspector-General’s staff, under section 13, 14, 15 or 25 to be paid,
in relation to that attendance, fees and allowances for expenses fixed by, or
calculated in accordance with, the regulations.
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.
Freedom of Information Act
1982
1 Schedule 3
Insert in its appropriate alphabetical position: