Procedures for disclosing protected information

Procedures for disclosing protected information under Schedule 1 to the Taxation Administration Act 1953

Overview

1. The procedures and instructions set out in this document have been developed to satisfy the Commissioner's obligations under section 355–335 of Schedule 1 to the Taxation Administration Act 1953 (TAA).
2. Section 355-335 of Schedule 1 to the TAA requires the Commissioner to issue and publish instructions about the procedures to be followed by taxation officers when disclosing protected information under:      
   • section 355-55 (disclosures to Ministers)
   • section 355-65 (disclosures for other government purposes)
   • section 355-70 (disclosures for law enforcement and related purposes).
    
3. All references to legislation in this document are to Schedule 1 to the TAA, unless otherwise indicated.

Background

4. The tax law secrecy provisions in Division 355 of Schedule 1 to the TAA apply to protected information. Protected information is defined to mean information that was disclosed or obtained under or for the purposes of a taxation law (other than the Tax Agent Services Act 2009), which relates to the affairs of an entity (including but not limited to the entity's tax affairs), and which identifies, or is reasonably capable of being used to identify, that entity.
5. To be protected information, the information need not relate to a living individual, but can relate to any entity as defined in section 960-100 of the Income Tax Assessment Act 1997, that is:      
   • an individual
   • a body corporate
   • a body politic
   • a partnership
   • any other unincorporated association or body of persons
   • a trust
   • a superannuation fund
   • an approved deposit fund.
    
6. Protected information may be contained in written documents, conversations, electronic recordings, transcripts or any other form in which information can be recorded. It includes information obtained directly from a taxpayer or information generated by us (for instance, through collating or cross-referencing information from a variety of sources).
7. It is an offence under section 355–25 for a tax officer to disclose protected information to another entity, other than to the entity who the information is about, or that entity's covered entity (as defined in subsection 355-25(2)), unless the disclosure is permitted under one of the exceptions in Division 355.
8. A tax officer who proposes to disclose protected information under one of the exceptions in Division 355 must always ensure that their disclosure will fit the requirements stipulated in the exception they propose to apply.
9. The table items in sections 355–55, 355–65 and 355–70 are exhaustive lists of circumstances in which disclosures of protected information may be made under each section and tax officers must observe the defined terms in each section. Any proposed disclosure under these sections must fit one of the table items in the relevant section for a tax officer to make a proposed disclosure.
10. For disclosures under the exceptions in sections 355–55, 355–65 or 355–70, a tax officer must follow the instructions in this document.

Before protected information can be disclosed by us to a Minister

Introduction

10. Division 355 permits a tax officer to disclose protected information to Ministers in the circumstances and for the purposes set out in the table in subsection 355–55(1). These are:      
    • to enable any Minister to exercise a power or perform a function under a taxation law (table item 1)
    • to enable the Minister to respond directly to the entity the information is about in relation to a representation made by that entity to either the Minister or another member of Parliament (table item 2)
    • to the Minister for the purpose of informing decisions made under the Compensation for Detriment Caused by Defective Administration Scheme (table item 3)
    • to the Finance Minister, for the purpose of the making, or possible making, of an act of grace payment connected to the administration of a taxation law, or the waiver or possible waiver of a tax debt (table item 4)
    • to any Minister for the purpose of determining whether to make an ex-gratia payment, or administering such a payment (table item 5)
    • to specified Ministers for the purpose of enabling them to discharge specified responsibilities, but only where the disclosure is of information contained in the Register of Foreign Ownership of Agricultural Land or the Register of Foreign Ownership of Water Entitlements (table item 6).
     

Process

11. The following paragraphs in this section list the process that tax officers must follow before disclosing protected information to a Minister under section 355–55.
12. Ensure that you are authorised to make the disclosure.      
    • Section 355–55 permits any tax officer to lawfully disclose protected information under section 355–55.
    • Tax officers must also comply with any policies determined by their business line regarding minimum classification levels for making disclosures to recipients of a kind listed in subsection 355–55(1). The Taxation Authorisation Guidelines are available to tax officers on our intranet.
     
13. Consult with Parliamentary Services in Corporate Relations, or a Parliamentary business line coordinator.      
    • A tax officer who proposes to disclose protected information to a Minister must consult Parliamentary Services in Corporate Relations, or a Parliamentary business line coordinator. A list of Parliamentary business line coordinators is available to tax officers on our intranet.
    • Further information is available to tax officers on our intranet, in the Providing Services to Treasury Portfolio Ministers and Parliament Chief Executive Instruction.
     
14. Determine whether one of the table items in section 355–55 will apply to the proposed disclosure.      
    • Ensure that the proposed recipient of the protected information is an entity described in column 2 of the table item that will be relied on.
    • Ensure that the purpose for which the information would be disclosed fits the lawful purpose for disclosure set out in column 3 of the table item that will be relied on.
    • The table items are an exhaustive list of circumstances in which disclosures of protected information may be made under section 355–55. They are not examples. The proposed disclosure must fit one of the table items in order to be permitted under section 355–55.
    • Any defined terms in section 355–55 must be carefully observed in assessing the application of the table items in that section.
    • Note there are some other very limited circumstances in which protected information may be disclosed to a Minister apart from under section 355–55. The processes set out in this CMPI apply only to those disclosures of protected information to Ministers that are made under section 355–55. An example is that protected information about a Minister's own affairs as a taxpayer may be provided to that Minister, consistent with section 355–25.
    • Details of all circumstances in which protected information may be disclosed to a Minister, both under section 355–55 and apart from under section 355–55, are set out in Law Administration Practice Statement PS LA 2004/9 Disclosing information about the affairs of a taxpayer to Ministers.
     
15. Obtain senior officer agreement.      
    • If a tax officer who proposes to disclose protected information under section 355–55 is not the Commissioner, a Second Commissioner, an SES employee or acting SES employee of the ATO, they must obtain agreement that the disclosure of protected information is covered by the table item in section 355–55 they propose to apply, from     
      • the Commissioner
      • a Second Commissioner
      • an SES employee or acting SES employee of the ATO, who is not the disclosing tax officer's direct supervisor.
       
    • The Parliamentary coordinator who is managing the relevant work item seeks senior officer agreement by submitting to them an approvals and agreement template which specifies the table item in section 355–55 under which protected information will be disclosed.
    • The senior officer from whom agreement is sought checks that the statutory criteria for the particular table item identified on the template has been satisfied.
    • The senior officer indicates on the template that they agree that the proposed disclosure is covered by the nominated table item and notifies the Parliamentary coordinator that agreement has been given.
     
16. Record senior officer agreement.      
    • The document recording the senior officer agreement should be attached to the relevant work item in the Parliamentary Workflow System, prior to returning the work item to Parliamentary Services for disclosure to the Minister.
     

Before protected information can be disclosed by us for other government purposes

Introduction

17. Division 355 permits a tax officer to disclose protected information for other government purposes set out in tables 1 to 7 in section 355–65. These are:      
    • Table 1: Records or disclosures relating to social welfare, health and safety
    • Table 2: Records or disclosures relating to superannuation or finance
    • Table 3: Records or disclosures relating to corporate regulation, business, research or policy
    • Table 4: Records or disclosures relating to other taxation matters
    • Table 5: Records or disclosures relating to rehabilitation or compensation
    • Table 6: Records or disclosures relating to the environment
    • Table 7: Records or disclosures relating to miscellaneous matters.
     

Process

18. The following paragraphs in this section list the process that tax officers must follow before disclosing protected information for other government purposes under section 355–65.
19. Ensure that you are authorised to make the disclosure.      
    • Section 355–65 permits any tax officer to lawfully disclose protected information under section 355–65.
    • However, tax officers must comply with any policies determined by their business line regarding minimum classification levels for making disclosures to recipients of a kind listed in section 355–65. The Taxation Authorisation Guidelines are available to tax officers on our intranet.
     
20. Determine whether one of the table items in section 355–65 will apply to the proposed disclosure.      
    • Ensure that the proposed recipient of the protected information is an entity described in column 2 of the table item that will be relied on.
    • Ensure that the purpose for which the information would be disclosed fits the lawful purpose for disclosure set out in column 3 of the table item that will be relied on.
    • The table items are an exhaustive list of circumstances in which disclosures of protected information may be made under section 355–65. They are not examples. The proposed disclosure must fit one of these table items in order to make a disclosure under section 355–65.
    • Any defined terms in section 355–65 must be carefully observed in assessing the application of the table items in that section.
     
21. Comply with any Memorandum of Understanding (MOU) that applies to the proposed disclosure.      
    • Identify and comply with any MOU that applies to a proposed disclosure of protected information to a particular recipient. A MOU cannot authorise any disclosure of protected information that is not consistent with the secrecy provisions in taxation law. But it may stipulate agreed conditions for information disclosure, such as timeframes for responding to requests, or agency contacts through which requests and disclosures are to be directed.
    • Refer to the table of MOUs maintained by Corporate Relations, available to tax officers on our intranet.
    • Direct any questions about compliance with a particular MOU to the MOU manager listed in the Corporate Relations MOU table available to tax officers on our intranet or identified in the MOU itself.
     

Before protected information can be disclosed by us for law enforcement and related purposes

Introduction

22. Division 355 permits a tax officer to disclose protected information to the entities and for the purposes set out in the table in section 355–70. These are:      
    • to an authorised law enforcement agency officer, or a court or a tribunal, for the purpose of investigating a serious offence, or enforcing a law, the contravention of which is a serious offence, or the making, or proposed or possible making, of a proceeds of crime order, or supporting or enforcing a proceeds of crime order (table item 1)
    • to an authorised ASIO officer, for the purpose of performing ASIO's functions under subsection 17(1) of the Australian Security Intelligence Organisation Act 1979 (table item 2)
    • to a Project Wickenby officer, or a court or tribunal, for or in connection with a purpose of the Project Wickenby taskforce (made before 1 July 2015, or a later prescribed day) (table item 3)
    • to a taskforce officer of a prescribed taskforce, or a court or tribunal, for or in connection with a purpose of the prescribed taskforce (made within the time limit, if any, prescribed by the regulations) (table item 4)
    • to 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, for the purpose of the Royal Commission conducting its inquiry (table item 5)
    • to a Royal Commission of a State or a Territory prescribed by the regulations for the purposes of this table item, a commission of inquiry of a State or a Territory prescribed by the regulations for the purposes of this table item, or a board of enquiry of a State or a Territory prescribed by the regulations for the purposes of this table item, for the purpose of investigating a serious offence, or enforcing a law the contravention of which is a serious offence, or the making, or proposed or possible making, of a proceeds of crime order, or supporting or enforcing a proceeds of crime order (table item 6).
     

Process

23. The following paragraphs in this section list the process that tax officers must follow before disclosing protected information for law enforcement and related purposes under section 355–70.
24. Consult the Information Disclosure Team in the Integrated Compliance business line.      
    • A tax officer who proposes to disclose protected information under section 355–70 must consult with the Information Disclosure Team in Integrated Compliance.
    • Disclosure templates provided by the Information Disclosure Team must be completed.
    • The disclosure must be approved by the Information Disclosure Team.
    • The Information Disclosure Team will arrange all necessary authorisations and agreements without which disclosures under section 355–70 cannot be made. They also ensure that statutory reporting requirements in relation to section 355–70 are met.
     
25. Ensure that you are authorised to make the disclosure.      
    • A tax officer other than the Commissioner or Second Commissioner can only disclose protected information under section 355-70 if they have been delegated to do so by the Commissioner, or if they have been authorised to do so by the Commissioner or one of the Commissioner's delegates. Only certain SES officers have a delegation from the Commissioner to disclose protected information and to authorise other tax officers to disclose protected information under section 355–70. This is an additional requirement that applies to this exception only. Note this is a separate requirement to the senior officer agreement set out in paragraph 28.
    • A tax officer who has not been authorised to do so by the Commissioner or Commissioner's delegate must not disclose any protected information under section 355–70.
    • All inquiries about authorisations for the purposes of section 355–70 must be directed to the Information Disclosure Team in Integrated Compliance.
     
26. Determine whether one of the table items in section 355–70 will apply to the proposed disclosure.      
    • Ensure that the proposed recipient of the protected information is an entity described in column 2 of the table item that will be relied on.
    • Ensure that the purpose for which the information would be disclosed fits the lawful purpose for disclosure set out in column 3 of the table item that will be relied on.
    • The table items are an exhaustive list of circumstances in which disclosures of protected information may be made under section 355–70. They are not examples. The proposed disclosure must fit one of the table items to be permitted to make a disclosure under section 355–70.
    • The defined terms in section 355–70 must be carefully observed in assessing the application of the table items in that section.
     
27. Comply with any Memorandum of Understanding (MOU) that applies to the proposed disclosure.      
    • Identify and comply with any MOU that applies to a proposed disclosure of protected information to a particular recipient. A MOU cannot authorise any disclosure of protected information that is not consistent with the secrecy provisions in taxation law. But it may stipulate agreed conditions for information disclosure, such as timeframes for responding to requests, or agency contacts through which requests and disclosures are to be directed.
    • Refer to the table of MOUs maintained by Corporate Relations, available to tax officers on our intranet.
    • Direct any questions about compliance with a particular MOU to the MOU manager listed in the MOUs Corporate Relations table available to tax officers on our intranet or identified in the MOU itself.
     
28. Obtain senior officer agreement.      
    • If a tax officer who proposes to disclose protected information under section 355–70 is not the Commissioner, a Second Commissioner, an SES employee or acting SES employee of the ATO, they must obtain agreement that the disclosure of protected information is covered by the table item in section 355-70 they propose to apply, from:      
      • the Commissioner
      • a Second Commissioner
      • an SES Employee or acting SES employee of the ATO.
       
    • Senior officer agreement is sought by the Information Disclosure Team, by submitting a disclosure checklist on which the statutory criteria for the relevant table item are listed and checked off by a member of the Information Disclosure Team.
    • The senior officer from whom agreement is sought checks that the statutory criteria for the particular table item have been satisfied.
     

The senior officer electronically signs the checklist to indicate that they agree that the proposed disclosure is covered by the table item indicated in the disclosure checklist and notifies the Information Disclosure Team that agreement has been given.

The process to follow before protected information can be disclosed by a tax officer to a minister. This document is a public version of instructions contained in CMPI 2004/07/01.