Explanatory Memorandum
(Circulated by authority of the Minister for Housing and Assistant Treasurer the Hon Michael Sukkar MP)Chapter 6 - Tax secrecy
Outline of chapter
6.1 Schedule 6 to the Bill makes amendments to the tax secrecy provisions in the TAA to allow protected information relating to the JobKeeper scheme to be disclosed to the Fair Work Commission and the Fair Work Ombudsman for the purposes of the administration of the Fair Work Act 2009.
6.2 All legislative references in this Chapter are to Schedule 1 to the TAA 1953 unless otherwise stated.
Context of amendments
6.3 Section 355-25 makes it an offence for a taxation officer to make a record of, or disclose, protected information. Protected information is generally information that relates to the affairs of an entity and identifies, or is reasonably capable of being used to identify, that entity, where that information was disclosed or obtained under or for the purposes of a taxation law.
6.4 An exception to the offence is contained in section 355-65. That section permits a taxation officer to make a disclosure of protected information if an item in a table in the section covers the making of the disclosure.
6.5 Existing circumstances in which disclosure is permitted include disclosing information to the Fair Work Ombudsman about an entity's non-compliance with a taxation law that is to be used for the purpose of ensuring the entity's compliance with the Fair Work Act 2009.
Summary of new law
6.6 Schedule 6 to the Bill makes amendments to subsection 355-65(8) to provide an additional circumstance in which protected information can be disclosed.
6.7 As a result of the amendments, a taxation officer is permitted to disclose protected information to the Fair Work Commission or the Fair Work Ombudsman where the information relates to the JobKeeper scheme and is for the purposes of the administration of the Fair Work Act 2009.
Comparison of key features of new law and current law
| New law | Current law |
| In addition to the previously permitted disclosure, a taxation officer may disclose protected information that relates to the JobKeeper scheme to the Fair Work Commission or the Fair Work Ombudsman for the purposes of the administration of the Fair Work Act 2009. | The Commissioner of Taxation can only disclose to the Fair Work Ombudsman the fact that an entity has not complied with a taxation law or is reasonably suspected of such non-compliance for the purpose of ensuring the entity's compliance with the Fair Work Act 2009. |
Detailed explanation of new law
6.8 Schedule 6 to the Bill inserts a new table item into the table in subsection 355-65(8) to include an additional circumstance in which protected information can be disclosed without the offence in section 355-25 applying. [Schedule #, item 1, item 5AB of the table in subsection 355-65(8)]
6.9 The amendments to the table in subsection 355-65(8) allows protected information related to the JobKeeper scheme to be disclosed to the Fair Work Commission and the Fair Work Ombudsman for the purposes of the administration of the Fair Work Act 2009. This allows these entities to receive information from the Commissioner of Taxation relating to the JobKeeper scheme that is required to appropriately address issues concerning compliance with obligations under the Fair Work Act 2009 (including instruments made under that Act).
6.10 Consistent with other exceptions to the tax secrecy offence in section 355-25, a defendant bears the evidential burden in relation to establishing that the exception applies. The reversal of the burden of proof is consistent with the Attorney-General's Department's A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011 edition.
6.11 It is appropriate that the evidential burden be reversed in this situation. Matters relating to the disclosure of protected information and for which purposes (such as what information is being disclosed and for what purpose the disclosure is being made) are peculiarly within the knowledge of the person making the disclosure and can be raised in making their defence. It would be significantly more difficult and costly for the prosecution to disprove these facts.
Application and transitional provisions
6.12 Schedule 6 to the Bill commences on the day after the Bill receives Royal Assent. [Clause 2
6.13 The amendments made by Schedule 6 apply to information disclosed or records made on or after the day of commencement. It does not matter whether the information recorded or disclosed was obtained before, on or after this day. [Schedule 6, item 2]
6.14 The amendments only permit the sharing of information relating to the JobKeeper scheme for the purposes of administering the Fair Work Act 2009.
6.15 However, while the JobKeeper scheme only operates for a limited period, information sharing is not restricted to this period. Instead, the amendments allow the sharing of protected information in relation to the JobKeeper scheme with the Fair Work Commission and the Fair Work Ombudsman after the final payments are made under the JobKeeper scheme.
6.16 This flexibility allows for effective administration in relation to disputes, investigations and other outstanding matters regarding the JobKeeper scheme that may continue after all payments have been made.