Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this section, unless the contrary intention appears:
"Director of Public Prosecutions" means a person holding office as, or acting as, the Director of Public Prosecutions under the Director of Public Prosecutions Act 1983 .
"officer" means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax.
"Royal Commission" means a Commission that has been commissioned by the Governor-General, by Letters Patent in pursuance of the Royal Commissions Act 1902 or of any other power, to conduct an inquiry, and includes any member of such a Commission.
"Special Prosecutor" means a person holding office as, or acting as, a Special Prosecutor under the Special Prosecutors Act 1982.
(a) an offence against:
(i) an Act of which the Commissioner has the general administration or regulations under such an Act; or
(ii) the Crimes (Taxation Offences) Act 1980 ; or
(b) an offence against the Crimes Act 1914 relating to a law referred to in paragraph (a).
(1A) For the purposes of this section, a person who, although not appointed or employed by the Commonwealth, performs services for the Commonwealth shall be taken to be employed by the Commonwealth.
(2) Subject to this section, an officer shall not either directly or indirectly, either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of officer in subsection (1).
(2A) Subsection (2) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, in the performance of the person's duties as an officer.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal Code .
(3) An officer shall not be required to produce in Court any return, assessment or notice of assessment, or to divulge or communicate to any Court any matter or thing coming under his notice in the performance of his duties as an officer, except when it is necessary to do so for the purpose of carrying into effect the provisions of this Act or of any previous law of the Commonwealth relating to Income Tax.
(4) Nothing in this section shall be deemed to prohibit the Commissioner, a Second Commissioner, or a Deputy Commissioner, or any person thereto authorized by him, from communicating any information to:
(a) any person performing, in pursuance of any appointment or employment by the Commonwealth, any duty arising under any Act administered by the Commissioner of Taxation, for the purpose of enabling that person to carry out any such duty;
(b) any board exercising any function under any Act administered by the Commissioner of Taxation, or any member of any such Board;
(c) the Tribunal in connection with proceedings under an Act of which the Commissioner has the general administration;
(d) the Repatriation Commission for the purpose of the administration of any law of the Commonwealth relating to pensions;
(e) the Secretary of the Department dealing with matters relating to the social security law (within the meaning of the Social Security Act 1991 ) for the purpose of the administration of that law; or
(ea) the Secretary to the Department of Employment, Education and Training for the purpose of the administration of any law of the Commonwealth relating to pensions, allowances or benefits;
(eb) the Chief Executive Officer of the Commonwealth Services Delivery Agency, established by the Commonwealth Services Delivery Agency Act 1997 , for the purpose of the administration of the social security law (within the meaning of the Social Security Act 1991 );
(f) the Secretary to the Department of Health for the purpose of the administration of any law of the Australian Capital Territory or of the Northern Territory which is administered by the Minister of State for Health;
(fa) the Chief Executive Officer of Medicare Australia for the purpose of the administration of the Childcare Rebate Act 1993 , being information as to whether a registered carer (within the meaning of that Act) or an applicant for registration as a registered carer has a tax file number;
(fb) the Chief Executive Officer of Medicare Australia for the purpose of the administration of the Private Health Insurance Incentives Act 1998 or Part 2‑2 or 6‑4 of the Private Health Insurance Act 2007 ;
(fc) the Secretary to the Department of Family and Community Services for the purpose of the administration of the A New Tax System (Family Assistance) (Administration) Act 1999 ;
(fd) Comcare, established by section 68 of the Safety, Rehabilitation and Compensation Act 1988 , for purposes consistent with the functions of that body under that Act;
(g) the Safety, Rehabilitation and Compensation Commission, established by section 89A of the Safety, Rehabilitation and Compensation Act 1988 , for purposes consistent with the functions of that body under that Act;
(gaa) the Military Rehabilitation and Compensation Commission established by section 361 of the Military Rehabilitation and Compensation Act 2004 , for purposes consistent with the functions of that body under that Act;
(ga) the Australian Statistician for the purposes of the Census and Statistics Act 1905 , being the following kind of information about a person who is an employer (whether or not the person is also a business person):
(i) the name and address of the person;
(ii) the name or description of the industry, trade, business, calling, service, profession or occupation in which the person is an employer;
(iii) the number of males and the number of females who are employees of the person;
(gb) the Australian Statistician for the purposes of the Census and Statistics Act 1905 , being the following kind of information about a person who is a business person (whether or not the person is also an employer):
(i) the name and address of the person;
(ii) the name or description of the business;
(iii) such other information in relation to the business as is requested by the Australian Statistician;
(h) the Secretary, Department of Defence, for the purpose of the administration of any law of the Commonwealth relating to payments in respect of dependants of members of the Defence Force;
(ha) the authorized person holding office under the Loan (Income Equalization Deposits) Act 1976 for the purposes of the administration of that Act;
(hb) the Secretary to the Department of Education and the Secretary to the Department of Social Security for the purpose of the administration of any law of the Commonwealth relating to financial assistance to students;
(hba) the Development Allowance Authority, for the purpose of the administration of the Development Allowance Authority Act 1992 or of the prosecution provisions within the meaning of Chapter 4 of that Act;
(hc) the Australian Prudential Regulation Authority, for the purpose of the administration of the Superannuation (Excluded Funds) Taxation Act 1987 (including a repealed provision of that Act as that provision continues to apply because of the Taxation Laws Amendment (Superannuation) Act 1992 or the Occupational Superannuation Standards Amendment Act 1993 ) or of the prosecution provisions within the meaning of that Act;
(hca) the Australian Prudential Regulation Authority or the Australian Securities and Investments Commission, for the purpose of the administration of the Superannuation Industry (Supervision) Act 1993 ;
(hcb) the Australian Prudential Regulation Authority, for the purpose of the administration of the Financial Institutions Supervisory Levies Collection Act 1998 ;
(hd) the Secretary to the Department of Immigration and Ethnic Affairs, for the purpose of assisting in locating persons who are unlawfully in Australia;
(j) the Secretary to the Department of Housing and Construction, for the purpose of the administration of any law of the Commonwealth having an object of assisting persons to purchase or build their own homes;
(ja) the Child Support Registrar, for the purposes of the administration of the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 ;
(k) 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 paragraph applies, for the purpose of conducting its inquiry; or
(l) the Treasurer, for the purpose of exercising his or her powers under subsection 128AE(2A) or (2C); or
(m) Innovation Australia, established by section 6 of the Industry Research and Development Act 1986 , for the purpose of the administration of a law of the Commonwealth relating to venture capital.
(4AA) In paragraphs (4)(ga) and (gb):
"business person" means a person who is carrying on a business, whether alone, in partnership or otherwise.
"description" , in relation to a business, includes a description or specification of a category in which the business is included.
"employee" means a person who receives, or is entitled to receive, work and income support related withholding payments and benefits.
"employer" means a person who pays or is liable to pay work and income support related withholding payments and benefits, and includes:
(a) in the case of an unincorporate body of persons other than a partnership--the manager or other principal officer of that body; and
(b) in the case of a partnership--each partner; and
(c) an Australian government agency as defined in subsection 995‑1(1) of the Income Tax Assessment Act 1997 .
"research and development activities" has the same meaning as in section 73B.
(4A) Subject to subsections (4B) and (4C), where information respecting the affairs of a person is communicated to a Royal Commission in pursuance of paragraph (4)(k):
(a) the Royal Commission may, in a manner that does not identify, and is not reasonably capable of being used to identify, the person to whom the information relates:
(i) communicate the information to the Governor‑General in a report by the Royal Commission; or
(ii) divulge the information in the course of a proceeding conducted by the Royal Commission other than a proceeding conducted in private;
(aa) the Royal Commission may divulge the information in the course of a proceeding conducted in private by the Royal Commission;
(b) the Royal Commission may communicate the information to the Attorney‑General if the Royal Commission is of the opinion that the information indicates that a person may have committed an offence against an Act, being an offence the punishment, or maximum punishment, for which is or includes imprisonment for life or for a period exceeding 6 months;
(ba) the Royal Commission may communicate the information to the Director of Public Prosecutions or a Special Prosecutor if the Royal Commission is of the opinion that the information relates or may relate to an investigation of a tax‑related offence;
(c) subject to the preceding paragraphs, the Royal Commission shall not divulge or communicate the information;
(d) a person who has ceased to be the person constituting, or to be a member of, the Royal Commission shall not make a record of the information, or divulge or communicate the information, in any circumstances; and
(e) a person to whom information has been communicated in accordance with paragraph (c) or subsection (4AAA) shall not:
(i) while he is a person or employee under the control of the Royal Commission--divulge or communicate the information; or
(ii) after he ceases to be a person or employee under the control of the Royal Commission--make a record of the information, or divulge or communicate the information, in any circumstances.
(4AAA) Paragraph (4A)(c) and subparagraph (4A)(e)(i) do not apply to the extent that the person divulges or communicates the information to the Royal Commission or a person or employee under the control of the Royal Commission for the purposes of, or in connection with, the inquiry being conducted by the Royal Commission.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4AAA), see subsection 13.3(3) of the Criminal Code .
(4B) Where information respecting the affairs of a person is communicated to a Royal Commission in pursuance of paragraph (4)(k), nothing in subsection (4A) prevents the communication of the information to:
(a) if the person to whose affairs the information relates is not a company--that person;
(b) if the person to whose affairs the information relates is a company:
(i) any person who is, or has been, a director or officer of the company; or
(ii) any person who is, or has been, directly involved in, or responsible for, the preparation of information furnished to the Commissioner on behalf of the company; or
(c) the person who furnished the information to the Commissioner of Taxation.
(4C) Where subsection (4B) permits the communication of information to a person, nothing in subsection (4A) prevents the communication of the information to a barrister or solicitor appearing before the Royal Commission for the purpose of representing the person.
(4D) Where information is communicated to a person in accordance with subsection (4B) or (4C) or paragraph (4A)(aa), being information that was not furnished to the Commissioner of Taxation by the person and does not relate to the affairs of the person, the person shall not make a record of the information, or divulge or communicate the information, in any circumstances.
(4E) Where information is communicated to the Attorney‑General under paragraph (4A)(b), the Attorney‑General may communicate the information to the Commissioner of the Australian Federal Police.
(4EA) Subject to subsection (4E), the Attorney‑General must not divulge or communicate information communicated to the Attorney‑General under paragraph (4A)(b).
(4EB) Subsection (4EA) does not apply to the extent that the Attorney‑General divulges or communicates the information to a person or employee under his or her control for the purposes of, or in connection with, the performance by the Attorney‑General of his or her function under subsection (4E).
Note: A defendant bears an evidential burden in relation to the matters in subsection (4EB), see subsection 13.3(3) of the Criminal Code .
(4EC) A person who has ceased to be the Attorney‑General must not make a record of information communicated to the person under paragraph (4A)(b), or divulge or communicate the information, in any circumstances.
(4ED) A person to whom information has been communicated in accordance with subsection (4EB) or (4EE) must not:
(a) while he or she is a person or employee under the control of the Attorney‑General--divulge or communicate the information; or
(b) after he or she ceases to be a person or employee under the control of the Attorney‑General--make a record of the information, or divulge or communicate the information, in any circumstances.
(4EE) Paragraph (4ED)(a) does not apply to the extent that the person divulges or communicates the information to the Attorney‑General or another person or employee under the control of the Attorney‑General for the purposes of, or in connection with, the performance by the Attorney‑General of his or her function under subsection (4E).
Note: A defendant bears an evidential burden in relation to the matters in subsection (4EE), see subsection 13.3(3) of the Criminal Code .
(4F) Where information is communicated to the Commissioner of the Australian Federal Police under subsection (4E):
(a) the Commissioner of the Australian Federal Police must not divulge or communicate the information; and
(b) a person who has ceased to be the Commissioner of the Australian Federal Police must not make a record of the information, or divulge or communicate the information, in any circumstances; and
(c) a person to whom information has been communicated in accordance with subsection (4FAA) or (4FAB) must not:
(i) while he or she is a person or employee under the control of the Commissioner of the Australian Federal Police--divulge or communicate the information; or
(ii) after he or she ceases to be a person or employee under the control of the Commissioner of the Australian Federal Police--make a record of the information, or divulge or communicate the information, in any circumstances.
(4FAA) Paragraph (4F)(a) does not apply to the extent that the Commissioner of the Australian Federal Police divulges or communicates the information to a person or employee under his or her control for the purposes of, or in connection with, the performance by that person or employee of the duties of his or her office or employment.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4FAA), see subsection 13.3(3) of the Criminal Code .
(4FAB) Subparagraph (4F)(c)(i) does not apply to the extent that the person divulges or communicates the information:
(a) to the Commissioner of the Australian Federal Police for the purposes of, or in connection with, the performance by the Commissioner of the Australian Federal Police of the duties of his or her office; or
(b) another person or employee under the control of the Commissioner of the Australian Federal Police for the purposes of, or in connection with, the performance by that person or employee of the duties of his or her office or employment, as the case may be.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4FAB), see subsection 13.3(3) of the Criminal Code .
(4FA) Where information is communicated to the Director of Public Prosecutions under paragraph (4A)(ba):
(a) the Director of Public Prosecutions must not divulge or communicate the information; and
(b) a person who is no longer the Director of Public Prosecutions must not make a record of the information, or divulge or communicate the information, in any circumstances; and
(c) a person to whom information has been communicated in accordance with subsection (4FAAA) or (4FAAB) must not:
(i) while he or she is a person or employee under the control of the Director of Public Prosecutions--divulge or communicate the information; or
(ii) when he or she is no longer a person or employee under the control of the Director of Public Prosecutions--make a record of the information, or divulge or communicate the information, in any circumstances.
(4FAAA) Paragraph (4FA)(a) does not apply to the extent that the Director of Public Prosecutions divulges or communicates the information to a person or employee under his or her control for the purposes of, or in connection with, the performance by that person or employee of the duties of his or her office or employment.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4FAAA), see subsection 13.3(3) of the Criminal Code .
(4FAAB) Subparagraph (4FA)(c)(i) does not apply to the extent that the person divulges or communicates the information to:
(a) the Director of Public Prosecutions for the purposes of, or in connection with, the performance by the Director of Public Prosecutions of the duties of his or her office; or
(b) to another person or employee under the control of the Director of Public Prosecutions, for the purposes of, or in connection with, the performance by that other person or employee of the duties of his or her office or employment, as the case may be.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4FAAB), see subsection 13.3(3) of the Criminal Code .
(4FB) Where information is communicated to a Special Prosecutor under paragraph (4A)(ba):
(a) the Special Prosecutor must not divulge or communicate the information; and
(b) a person who is no longer a Special Prosecutor must not make a record of the information, or divulge or communicate the information, in any circumstances; and
(c) a person to whom information has been communicated in accordance with subsection (4FBA) or (4FBB) must not:
(i) while he or she is a person or employee under the control of the Special Prosecutor--divulge or communicate the information; or
(ii) when he or she is no longer a person or employee under the control of the Special Prosecutor--make a record of the information, or divulge or communicate the information, in any circumstances.
(4FBA) Paragraph (4FB)(a) does not apply to the extent that the Special Prosecutor divulges or communicates the information to a person or employee under his or her control for the purposes of, or in connection with, the performance by that person or employee of the duties of his or her office or employment.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4FBA), see subsection 13.3(3) of the Criminal Code .
(4FBB) Subparagraph (4FB)(c)(i) does not apply to the extent that the person divulges or communicates the information to:
(a) the Special Prosecutor for the purposes of, or in connection with, the performance by the Special Prosecutor of the duties of his or her office; or
(b) to another person or employee under the control of the Special Prosecutor, for the purposes of, or in connection with, the performance by that other person or employee of the duties of his or her office or employment, as the case may be.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4FBB), see subsection 13.3(3) of the Criminal Code .
(4G) A reference in subsection (4AAA) to a person under the control of a Royal Commission includes a reference to:
(a) a barrister or solicitor appointed by the Attorney‑General to assist the Royal Commission;
(b) a person assisting a barrister or solicitor so appointed; and
(c) a member or special member of the Australian Federal Police, or a member of a police force of a State or Territory, assigned to the Royal Commission to carry out an investigation on behalf of, or under the control of, the Royal Commission.
(4H) A reference in subsection (4EB), (4ED) or (4EE) to a person under the control of the Attorney‑General includes a reference to:
(a) an officer of, or person employed in, the Attorney‑General's Department;
(b) a person holding office, or employed, under an Act administered by the Attorney‑General; and
(c) a person under the control of a person to whom paragraph (b) applies.
(4J) A person to whom information has been communicated under paragraph (4)(k) or under subsection (4A), (4AAA), (4E), (4EB), (4EE), (4FAA), (4FAB), (4FAAA), (4FAAB), (4FBA) or (4FBB) shall not be required to divulge or communicate that information to any court.
(4JA) Where information is communicated to a person under paragraph (4A)(ba) or subsection (4FAAA), (4FAAB), (4FBA) or (4FBB), nothing in subsection (4FA) or (4FB) prevents:
(a) the communication of the information to another person for the purposes of, or in connection with, the prosecution of a person for a tax‑related offence; or
(b) if the information is admissible in a prosecution of a person for a tax‑related offence--the communication of the information to a court in the course of proceedings before that court against the last‑mentioned person for that offence.
(4JB) A person to whom information has been communicated in accordance with paragraph (4JA)(a) shall not make a record of the information, or divulge or communicate the information.
(4JC) Subsection (4JB) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, for the purposes of, or in connection with, the prosecution of a person for a tax‑related offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4JC), see subsection 13.3(3) of the Criminal Code .
(5) Any person to whom information is communicated under subsection (4) other than paragraph (4)(k) or (4)(l), and any person or employee under his control shall, in respect of that information, be subject to the same rights, privileges, obligations and liabilities, under subsections (2) and (3), as if he were an officer.
(5A) For the purposes of subsections (2) and (5), an officer or person shall be deemed to have communicated such information to another person in contravention of those subsections if he communicates that information to any Minister or to any Minister of the Crown of a State.
(5B) Where the Treasurer is satisfied that it is desirable to do so for the purpose of enabling the Government of the Commonwealth to review the operation of the provisions of this Act providing for rebates of tax by reference to export market development expenditure, he may, by writing under his hand, request the Commissioner to communicate to him, or to a person specified in the request, being a Minister of State, the Secretary to the Department of the Treasury or the Secretary to the Department of Trade, information relating to such matters as are specified in the request, and, notwithstanding anything contained in this section, the Commissioner, or an officer authorized by him, shall communicate information relating to those matters to the person specified in the request.
(5BA) Where the Treasurer is satisfied that it is desirable to do so for the purpose of enabling the Government of the Commonwealth to review the operation of the provisions of this Act providing for allowable deductions in respect of moneys paid on shares in companies that hold licences in force under the Management and Investment Companies Act 1983 , he may, by writing signed by him, request the Commissioner to communicate to him or to another person specified in the request, being a Minister of State, the Secretary to the Department of the Treasury or the Secretary to the Department of Science, information relating to such matters as are specified in the request, and, notwithstanding anything contained in this section, the Commissioner, or an officer authorized by him, shall communicate information relating to those matters to the person specified in the request.
(5C) The Secretary to the Department of the Treasury, the Secretary to the Department of Trade, the Secretary to the Department of Science or any other officer or employee of the Commonwealth shall not, either while he is, or after he ceases to be, such an officer or employee:
(a) make a record of, or divulge or communicate to a Minister of State or any other officer or employee of the Commonwealth, any information relating to the affairs of a person acquired by him by reason, directly or indirectly, of a communication in accordance with subsection (5B) or (5BA); or
(b) divulge or communicate any such information to any person who is not a Minister of State or officer or employee of the Commonwealth.
(5CA) Paragraph (5C)(a) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, in the performance of a duty as an officer or employee of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5CA), see subsection 13.3(3) of the Criminal Code .
(5D) A person to whom subsection (5C) applies shall not be required to produce in a court a document containing information referred to in that subsection or to divulge or communicate to a court any such information.
(6) Any officer shall, if and when required by the Commissioner, a Second Commissioner or Deputy Commissioner to do so, make an oath or declaration, in the approved form, to maintain secrecy in conformity with the provisions of this section.
Penalty: 100 penalty units or imprisonment for 2 years, or both.