Explanatory Memorandum
(Circulated by the authority of the Honourable Lionel Bowen MP Deputy Prime Minister and Attorney-General)NOTES ON CLAUSES
PART VA - AMENDMENTS OF THE INCOME TAX ASSESSMENT ACT 1936
This clause facilitates references to the Income Tax Assessment Act 1936 which, in Part VA, is referred to as the "Principal Act".
Clause 29B: Provisions relating to the Fitzgerald Inquiry
This clause will insert new section 16A in the Principal Act to permit the Commissioner of Taxation, without breach by him of the secrecy provisions (section 16) of the Principal Act, to disclose information to the Fitzgerald Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (the Fitzgerald Inquiry).
The Fitzgerald Inquiry will in turn be permitted to disclose information obtained from the Commissioner in the limited circumstances that are explained in the following notes. Subject to those limited exceptions, any person to whom information about the taxation affairs of a person or company is communicated will be subject to strict secrecy constraints of the kind now applicable to taxation officers and other authorised recipients of taxation information.
The maximum penalty for a person who is convicted of a breach of the secrecy provisions of the Principal Act is $5000 or imprisonment for 12 months, or both.
Subsection 16A(1) defines the following terms for the purposes of section 16A -
- 'inquiry' is specifically defined to mean the Fitzgerald Inquiry.
- 'proceeds of crime proceedings' is defined to mean proceedings under the Proceeds of Crime Act 1987 (a term relevant to paragraphs 16A(4)(e) and (f) and subsection 16A(18) or corresponding Queensland legislation.
- 'State Attorney-General' means the Attorney-General of Queensland. References in section 16A to the Attorney-General are references to the Commonwealth Attorney-General.
- 'State Commissioner' means Gerald Edward Fitzgerald Q.C. in his capacity as the person making the Inquiry.
- 'State Police Commissioner' means the Queensland Police Commissioner or a person for the time being performing the duties of that Commissioner. References in section 16A to the Commissioner of Police are references to the Commissioner of the Australian Federal Police.
Subsection 16A(2) is also a definitional provision and adopts the following definitions that are contained in section 16 of the Principal Act -
- '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 - that is, the Commonwealth Director of Public Prosecutions.
- 'officer' means a person appointed or employed by the Commonwealth or by a State and who, in the course of the duties of that office or employment, has acquired taxation information.
- 'Special Prosecutor' means a person holding office as, or acting as, a Special Prosecutor under the Special Prosecutors Act 1982.
- 'tax-related offence' means -
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- an offence against an Act of which the Commissioner of Taxation has the general administration, or against a regulation made under such an Act;
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- an offence against the Crimes (Taxation Offences) Act 1980; or
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- an offence against the Crimes Act 1914, where it relates to an Act administered by the Commissioner of Taxation, to a regulation made under such an Act or to the Crimes (Taxation Offences) Act 1980.
Subsection 16A(3) is the operative provision which authorises the Commissioner of Taxation, a Second Commissioner of Taxation or a Deputy Commissioner of Taxation, or a person authorised by one of those persons, to communicate information to the Fitzgerald Inquiry without being in breach of the secrecy provisions of section 16 of the Principal Act.
Subsection 16A(4) sets out the circumstances in which the State Commissioner may divulge taxation information supplied to the inquiry. By paragraph 16A(4)(a), taxation-sourced information that does not identify the person to whom it relates may be -
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- communicated to the Queensland State Governor in a report by the State Commissioner (subparagraph 16A(4)(a)(i)); or
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- divulged by the State Commissioner in proceedings conducted in public (subparagraph 16A(4)(a)(ii));
By paragraph 16A(4)(b), the State Commissioner will be permitted, during the course of a private session, to disclose taxation-sourced information.
Paragraph 16A(4)(c) will enable the State Commissioner to disclose taxation information, including the name of a person or company to whom it relates, to the Attorney-General if the State Commissioner is of the opinion that the information indicates that a person may have committed an offence against an Act punishable by imprisonment for life or for a period exceeding 6 months.
Similarly, paragraph 16A(4)(d) authorises the State Commissioner to disclose taxation information, including the name of a person or company to whom it relates, to the Queensland Attorney-General if the State Commissioner is of the opinion that the information indicates that a person may have committed an offence against a Queensland law punishable by imprisonment for life or for a period exceeding 6 months.
Paragraph 16A(4)(e) will enable the State Commissioner to supply the Director of Public Prosecutions (a defined term) and/or a Special Prosecutor (also a defined term) with taxation-sourced information where the State Commissioner is of the view that the information is, or may be, relevant to -
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- a tax-related offence (another defined term); or
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- proceeds of crime proceedings (as defined) under the Proceeds of Crime Act 1987.
By paragraph 16A(4)(f), the State Commissioner may communicate taxation-sourced information to the Queensland Director of Prosecutions if the State Commissioner is of the opinion that the information relates, or may relate, to post- conviction proceedings under a Queensland law that relates to the restraint of dealing with, or the confiscation of, proceeds of crime.
Subsection 16A(5) prohibits any disclosure of taxation- sourced information by the State Commissioner, other than a disclosure permitted by subsection 16A(4) or, where it is relevant to the conduct of the inquiry by the State Commissioner, a disclosure to his employees or other persons who are under the control of the State Commissioner.
By subsection 16A(6), the State Commissioner will, on ceasing to hold that appointment, be prohibited from recording or making any communication of taxation information obtained while State Commissioner.
Subsection 16A(7) will impose secrecy constraints on employees and other persons under the control of the State Commissioner. While a person remains under the control of the State Commissioner, he or she will only be permitted to communicate taxation information to the State Commissioner or, as necessary, to other members of his staff (paragraph 16A(7)(a)). Once a person ceases to be under the control or employ of the State Commissioner, recording or disclosure by that person of the taxation information will not be permitted in any circumstances (Paragraph 16A(7)(b)).
The effect of subsection 16A(8) is to make it clear that the State Commissioner may communicate taxation-sourced information to a person specified in paragraphs 16A(8)(a), (b) or (c). Paragraph 16A(8)(a) permits the communication of taxation-sourced information to an individual in respect of whose affairs the information relates, while paragraph 16A(8)(c) permits the information to be communicated to the person who furnished the information to the Commissioner of Taxation. Paragraph 16A(8)(b) restricts the communication of information relating to the affairs of a company to any person who is, or has been, directly involved in, or responsible for, the preparation of information furnished to the Commissioner of Taxation on behalf of the company (subparagraph 16A(8)(b)(ii)) and includes any person who is, or was, a director or officer of a company in respect of which taxation-sourced information has been communicated to the State Commissioner (subparagraph 16A(8)(b)(i)).
Subsection 16A(9) permits the communication of information to the legal representative of a person to whom taxation information is permitted to be communicated by reason of subsection 16A(8).
Consistent with the secrecy constraints applicable to other persons, including the State Commissioner and persons under the State Commissioner's control, subsection 16A(10) prohibits further communication by company officers, legal representatives, etc. who are provided with information by reason of subsections 16A(8) or (9) or paragraph 16A(4)(b).
Subsection 16A(11) sets out the circumstances in which taxation information that has been communicated to the Attorney-General by the State Commissioner, in pursuance of paragraph 16A(4)(c), may be divulged by the Attorney-General, and contains the obligations that will fall on the Attorney- General and relevant officials for the protection of the confidentiality of the information.
Paragraph 16A(11)(a) will permit the Attorney-General to disclose any taxation information, received from the State Commissioner, to the Commissioner of the Australian Federal Police.
Paragraph 16A(11)(b) will generally prohibit any disclosure of taxation information by the Attorney-General, other than the disclosure permitted to be made to the Australian Federal Police under paragraph (a), but will enable disclosure to persons under the employ or control of the Attorney-General if such disclosure is appropriate for the purpose of performance by the Attorney-General of the function under paragraph (a) of passing information to the Australian Federal Police. Paragraph 16A(16)(b), discussed later in these notes, specifies that certain persons are to be regarded as being under the control of the Attorney-General for the purpose of this paragraph.
By paragraph 16A(11)(c), a person to whom information has been communicated as Attorney-General is, on ceasing to hold that office, to be prohibited from divulging that information in any circumstances.
Paragraph 16A(11)(d) will impose secrecy constraints on persons who, for the purpose of enabling the Attorney-General to pass taxation information on to the Australian Federal Police, have become privy to that information. While such a person remains under the control of the Attorney-General, he or she will only be permitted to communicate the taxation information to the Attorney-General, and to other persons under the control of the Attorney-General where it is necessary for the purposes of the performance by the Attorney-General of his function under paragraph (a) in relation to the Australian Federal Police (subparagraph 16A(11)(d)(i)). Subsequently, disclosure by the person will not be permitted in any circumstances (subparagraph 16A(11)(d)(ii)).
Subsection 16A(12) permits the Queensland Attorney-General to communicate taxation-sourced information to the Queensland Police Commissioner and in other respects mirrors the provisions of subsection 16A(11).
Subsection 16A(13) specifies the obligations to be imposed on the Commissioner of the Australian Federal Police, the Queensland Police Commissioner and persons under the control of the respective Police Commissioner in respect of taxation information received under subsection 16A(11) or (12) from the Attorney-General or the Queensland Attorney-General.
Paragraph 16A(13)(a) will prohibit the disclosure of taxation information received by a Police Commissioner except such disclosure to persons under the control of the Commissioner as is necessary for the purpose of enabling that person to carry out his or her duties as a police officer. Federal and Queensland police officers will thus be entitled to make use of the information in investigating possible breaches of Commonwealth laws or Queensland laws, as the case may be, but will not be permitted to pass on that information to other law enforcement agencies.
By paragraph 16A(13)(b), a person who ceases to hold the office of Commissioner of the Australian Federal Police or Queensland Police Commissioner after having received relevant taxation information, is to be prohibited from recording or divulging that information in any circumstances.
Paragraph 16A(13)(c) will impose secrecy constraints on police officers and other persons under the control of either of the Police Commissioners who, for the purposes of carrying out their duties, have been supplied with taxation information received by the Police Commissioner. While such a person remains under the control of the relevant Police Commissioner, he or she will only be permitted to communicate the taxation information to the relevant Police Commissioner (including a subsequently appointed Commissioner) and to other persons under the control of the relevant Police Commissioner, for purposes connected with the performance of the official duties of the Commissioner or those other persons (subparagraph 16A(13)(c)(i)).
A person who ceases to be under the control of a relevant Police Commissioner and who has received confidential taxation information will thereafter not be permitted to record, divulge or communicate that information in any circumstances (subparagraph 16A(13)(c)(ii)).
Subsection 16A(14) deals with the on-communication, by either the Commonwealth Director of Public Prosecutions or the Queensland Director of Prosecutions, of information initially obtained by the State Commissioner under section 16A and subsequently disclosed by the State Commissioner to either of the Directors.
By paragraph 16A(14)(a), a Director is prohibited from on- communicating taxation-sourced information, except where that communication is to a person or employee under the control of the Director and then only where it is for purposes of, or in connection with, the performance by that person or employee of his or her official duties.
Paragraph 16A(14)(b) is a safeguarding provision designed to prohibit the recording or disclosure of taxation-sourced information by a person who is no longer a Director.
Subparagraph 16A(14)(c)(i) is also a safeguarding provision which ensures that a person to whom a Director has communicated information under paragraph 16A(14)(a) is prohibited from recording or disclosing the communicated information to any person other than the Director or another person or employee under the control of the Director. Such a disclosure is only permitted where it is for the purposes of enabling the Director, or persons or employees under his or her control, to perform their respective official duties.
Subparagraph 16A(14)(c)(ii) is a further safeguarding provision which is designed to ensure that, where a person to whom a Director has communicated information under new paragraph 16A(14)(a) ceases to be a person or employee under the control of the Director, that person is prohibited from recording or disclosing the relevant information.
Subsection 16A(15) has substantially the same purpose and effect as new subsection 16A(14) except that it relates to the disclosure or communication by a Special Prosecutor and/or a person or employee under his or her control of information initially provided by the Commissioner of Taxation to the State Commissioner and subsequently on- communicated by the State Commissioner to the Special Prosecutor - see notes above on subsection 16A(14).
Subsection 16A(16) clarifies references in section 16A to a person under the control of -
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- the State Commissioner (paragraph 16A(16)(a));
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- the Attorney-General (paragraph 16A(16)(b)); and
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- the Queensland Attorney-General (paragraph 16A(16)(c)).
A person is to be taken to be under the control of the State Commissioner if the person -
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- is a barrister or solicitor appointed by the Queensland Attorney-General to assist the State Commissioner (subparagraph 16A(16)(a)(i));
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- assists a barrister or solicitor so appointed (subparagraph 16A(16)(a)(ii)); or
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- is a member of the Queensland Police Force who has been assigned to the inquiry to carry out an investigation on behalf of, or under the control of, the State Commissioner (subparagraph 16A(16)(a)(iii)).
A person is to be taken to be under the control of the Attorney-General if the person -
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- is an officer of, or a person employed in, the Attorney- General's Department (subparagraph 16A(16)(b)(i));
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- is a person holding office, or employed, under an Act administered by the Attorney-General (subparagraph 16A(16)(b)(ii)); or
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- is a person under the control of a person holding office, or employed, under an Act administered by the Attorney- General (subparagraph 16A(16)(b)(iii)).
A person is to be taken to be under the control of the Queensland Attorney-General if the person -
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- is an officer of, or a person employed in, the Queensland Department of Justice (subparagraph 16A(16)(c)(i));
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- is a person holding office, or employed, under a law administered by the Queensland Attorney-General (subparagraph 16A(16)(c)(ii)); or
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- is a person under the control of a person holding office, or employed, under a law administered by the Queensland Attorney-General (subparagraph 16A(16)(c)(iii)).
By subsection 16A(17), a person who, in consequence of the disclosure of confidential taxation information to the inquiry, has received such information cannot be compelled to disclose that information to any court.
Where taxation-sourced information has been communicated to, or to a staff member of -
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- the Commonwealth Director of Public Prosecutions under paragraph 16A(4)(e);
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- a Special Prosecutor under paragraph 16A(4)(e); or
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- the Queensland Director of Prosecutions under paragraph 16A(4)(f),
Paragraph 16A(18)(a) will permit the further disclosure of that information to another person for the purposes of, or in connection with -
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- the prosecution of a person for a tax-related offence (a defined term - see notes on subsection 16A(2)); or
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- proceeds of crime proceedings (also defined in subsection 16A(2)) against the person.
By virtue of paragraph 16A(18)(b), where information is admissible as evidence in the prosecution of a person for a tax-related offence, or in proceeds of crime proceedings, that information may be further communicated to a court in the course of the relevant proceedings before that court.
Subsection 16A(19) provides that, where information has been communicated to a person in the prosecution of another person for a tax-related offence, or in proceeds of crime proceedings, the person to whom the information has been communicated shall not make a record of, or divulge or communicate, the information otherwise than for the purpose of, or in connection with, the relevant proceedings.
The maximum penalty for communicating, divulging or recording information in contravention of the provisions of section 16A is $5000 or imprisonment for 12 months, or both.
PART VB - AMENDMENTS OF THE TAXATION ADMINISTRATION ACT 1953
Clause 29C facilitates references to the Taxation Administration Act 1953 which in Part VB of the Bill, is referred to as the Principal Act.
Clause 29D: Provision of taxation information to National Crime Authority
Clause 29D will amend section 3D of the Principal Act. Existing section 3D provides that taxation information held by the Commissioner of Taxation under the various taxation laws and income tax information obtained by a Royal Commission may be communicated to the National Crime Authority (NCA).
Where the NCA requests from the Commissioner of Taxation information for the purposes of a tax-related investigation such information may be directly communicated. However, where the taxation information is required for the purposes of a "special investigation" (within the meaning of the National Crime Authority Act 1984) being conducted by the NCA, other than a tax-related investigation, the information will only be available after obtaining an order from a Judge of the Federal Court.
Existing subsection 3D(2) of the Principal Act permits a Royal Commission to which taxation information has been communicated to further communicate that information to the NCA if the Royal Commission is of the opinion that the information is or may be relevant to a tax-related offence. Paragraph (a) of clause 29D will insert a new subsection 3D(2) in the Principal Act to extend its operation to the State Commissioner (see following notes on paragraph (c) of clause 29D).
Paragraph (c) of clause 29D will insert definitions of "inquiry" and "State Commissioner" in subsection 3D(22) of the Principal Act. The terms are to have the same meaning as they have in new subsection 16A(1) of the Income Tax Assessment Act 1936.
Paragraph (b) of clause 29D will amend subsection 3D(3) of the Principal Act to make it clear that nothing in section 16A, which is being inserted in the Income Tax Assessment Act 1936, by clause 29B, prohibits the NCA from taking possession of information to which it becomes entitled to take possession under section 56 of the National Crime Authority Act 1984.
Part VIA - Amendment of the Royal Commissions Act 1902
This clause facilitates references to the Royal Commissions Act 1902 which in Part VIA, is referred to as the 'Principal Act'.
Clause 46B: Certain Evidence before a State Commission Inadmissible in Commonwealth Proceedings
Inserts new section 7D into the Principal Act.
Subsection 7D(1) defines the following terms for the purposes of section 7D -
- 'Commissioner' means Gerald Edward Fitzgerald QC in his capacity as the person making the Inquiry.
- 'Commonwealth proceeding' means any criminal proceedings under a law of the Commonwealth or of a Territory (other than the Northern Territory) and any civil proceedings instituted by or on behalf of the Commonwealth in a Commonwealth, State or Territory court instituted before or after the commencement of the section.
- 'Inquiry' is specifically defined to mean the Fitzgerald Inquiry.
- 'State law' means subsection 14(2) of the Queensland Commissions of Inquiry Act 1950.
Subsection 7D(2) ensures that a statement or disclosure made by a witness to the Fitzgerald Inquiry is not admissible against the witness in any criminal proceedings under a law of the Commonwealth or of a Territory (other than the Northern Territory) or in any civil proceedings instituted by, or on behalf of, the Commonwealth. This provision ensures that a witness appearing before the Fitzgerald Inquiry is in the same position as a witness appearing before a Commonwealth Royal Commission and is intended to supplement the operation of subsection 14(2) of the Commissions of Inquiry Act 1950 and not to derogate from the operation of that provision in any way.
Part VIB - Amendment of the Telecommunications (Interception) Amendment Act 1987
Clause 46C provides that, in Part VIB, 'Principal Act' means the Telecommunications (Interception) Amendment Act 1987.
Clause 46D amends that Act by enabling the definitions in section 5 (other than in paragraph 5(1)(b)) and in sections 6 and 8 to come into operation on the day the Crimes Legislation Amendment Act 1987 receives Royal Assent. The provisions inserted by section 6 and 8 of the Principal Act are interpretative and need to be brought into operation before the commencement of the outstanding provisions of the Principal Act as they explain terms which appear or are referred to in proposed Part VIC - Amendments of the Telecommunications (Interception) Act 1979.
Part VIC - Amendment of the Telecommunications (Interception) Act 1979
Clause 46E defines the 'Principal Act' as above for the purpose of the Part.
Clause 46F inserts a reference to new Part IIA in the definition of 'agency' in the Principal Act. This is necessary as the term agency is used in Part IIA.
Clause 46G amends the definition of 'eligible judge' in the Principal Act to reflect the present meaning of the expression 'judge' in the light of the change in the definition which will be made when the relevant provisions of the Telecommunications (Interception) Amendment Act 1987 come into operation.
Clause 46H inserts a substituted subsection (2) to section 6E in the Principal Act. It is consequential on clause 65A and it expands the definition of 'lawfully obtained information' appearing in section 6E by including information communicated in accordance with proposed section 65A.
Clause 46J inserts a new Part IIA in the Principal Act. This new Part provides for the communication of information to the Fitzgerald Commission of Inquiry and possible future use of that information. The clauses that are added to the Principal Act are as follows:
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- Proposed section 8A contains definitions of the 'Commissioner', 'eligible information', 'eligible interception' and the 'inquiry'. Eligible information is information relating to certain matters obtained by an eligible interception but does not include information obtained by intercepting a communication or a part of a communication that consists of a conversation or part of a conversation. An 'eligible interception' is an interception that was lawfully carried out under the Act before or after the commencement of this Part or, if in contravention of the Act, before the commencement of the Part.
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- Proposed section 8B provides that for the purposes connected with the Fitzgerald Inquiry a person may communicate eligible information to Commissioner Fitzgerald or give eligible information in evidence before the Commissioner.
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- Proposed section 8C enables the Commissioner for the purposes of the Inquiry to communicate, make use of, or make a record of eligible information and to include such information in his report about the Inquiry.
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- Proposed section 8D enables the Commissioner, or a person authorised by him, to communicate to law enforcement agencies eligible information that was given to him or in evidence before him, that relates or appears to relate to the commission of relevant offences in relation to the agency. 'Relevant offences' as defined in the Act relate to offences under the Act, the Telecommunications Act 1975 and other offences of various kinds punishable by a period of imprisonment of at least 3 years.
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- Proposed section 8E permits a person who may lawfully communicate information pursuant to sections 8B and 8D to make a record of the information.
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- Proposed section 8F permits an officer of an agency to whom the Commissioner has communicated information to pass on that information or make use of or make a record of that information for a 'permitted purpose' only. Permitted purposes are defined in the Act and they relate to specified investigations by or concerning the agency.
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- Proposed section 8G enables a person to whom information has lawfully been communicated for a purpose connected with the Inquiry or for a permitted purpose to communicate that information to another person or to make use of or record that information for those purposes only.
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- Proposed section 8H enables eligible information that has been given to the Commissioner to be given in evidence in exempt proceedings which have begun before or after the commencement of the Part. Exempt proceedings are defined in the Act.
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- Proposed section 8J makes it clear that Part IIA is an exception to the general prohibition against communication and the use of information obtained by interception contained in subsection 7(4).
Clause 46K substitutes a reference to section 63 in lieu of subsection 7(4) in proposed section 8C. When the Telecommunications (Interception) Amendment Act 1987 comes into operation, the general prohibition against communicating information obtained as a result of an interception will be in section 63 and not subsection 7(4). The amendment in clause 46L is for the same purpose.
Clause 46M amends the Principal Act by inserting proposed section 63A, which makes provision for dealing with intercepted information in connection with a proceeding begun before the commencement of Part VII of the Principal Act. Proposed subsection 63A(1) provides that a person may, for a purpose connected with a proceeding begun before the commencement of Part VII, communicate, use, or make a record of, or give in evidence in such a proceeding, information obtained by intercepting a communication before the commencement of Part VII (whether or not the interception was done in contravention of subsection 7(1) of the Principal Act) or obtained by virtue of a warrant issued under section 11 or 11A or Part IV.
The purpose of this provision is to relax the prohibition contained in section 63 of the Principal Act on the communication or giving in evidence of information obtained by interception so as to preserve, for proceedings begun before the commencement of section 21 of the Telecommunications (Interception) Amendment Act 1987, the law on the admissibility of information obtained by interception as determined by the High Court in the case of Hilton v. Wells (1985) 58 ALR 245. This provision will not affect a court's discretion to determine in such proceedings the admissibility of unlawfully intercepted evidence in accordance with the general law as laid down in cases such as Bunning v. Cross.
Clause 46N amends the Principal Act by inserting proposed section 65A under which an officer of Telecom may, in connection with the investigation of a serious offence (that is, a Class 1 offence or Class 2 offence as defined in section 5 of the Principal Act), give to a member of the Australian Federal Police lawfully obtained information, other than foreign intelligence information obtained under a warrant issued to the Australian Security Intelligence Organisation pursuant to section 11A of the Principal Act.
Under paragraph 7(4A)(b) of the Act as it is in force at present, lawfully obtained information may be communicated for the purpose of narcotics inquiries that are being made by members of the Australian Federal Police. The Telecommunications (Interception) Amendment Act 1987 omits this provision. This clause will enable the Australian Federal Police to continue to obtain this information in connection with the investigation of serious offences.
Clause 46P amends section 72 of the Principal Act by adding a reference to proposed section 65A. As amended, section 72 will allow a person, who is permitted to give information to another person by section 65 or 68, subsection 71(2) or by proposed section 65A, to make a record of the information for the purpose of doing so.
Clause 46Q adds a reference to proposed section 63A to section 73 of the Principal Act. Section 73 limits the purpose or purposes for which information may, under provisions of the Principal Act, be further communicated, used or recorded.
Clause 46R adds proposed sections 8H and 63A to the provisions mentioned in section 77 under which evidence may be given of information obtained by interception.
Clause 46S amends section 78 of the Principal Act, which deals with the admission in evidence of intercepted information, to take account of the insertion of proposed Part IIA in the Principal Act.