House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)

Chapter 5 - Information gathering and access powers

Overview

5.1 This Chapter explains new Parts 9, 10, 11 and 12 of the Diesel and Alternative Fuels Grants Scheme Act 1999 (DAFGSA). These Parts deal with the Commissioner of Taxations (the Commissioner) information gathering and access powers. These Parts provide for:

•

information gathering powers to be conferred on the Commissioner;

•

protection of confidentiality of information;

•

the Commissioners access to premises; and

•

the Commissioners power to stop and search vehicles.

Summary of the legislation

5.2 New Parts 9, 10, 11 and 12 of the DAFGSA facilitate the Commissioners ability to seek and obtain information in the following ways:

•

directing a person to provide information;

•

access to premises; and

•

power to stop and search vehicles.

Purpose of the amendments

5.3 Provisions dealing with access to premises and information gathering powers are necessary for the Commissioner to ensure compliance with the DAFGSA. Similar provisions are found in other Acts administered by the Commissioner.

5.4 The access and information gathering powers may be used, for example, to ensure that an entity is entitled to claim payments under the scheme. To ascertain an entitys entitlement it may be necessary for authorised officers to inspect documents which may not otherwise be available for inspection if access and information gathering powers are not included in this Bill.

Explanation of the amendments

Commissioner may direct a person to provide information

5.5 Where the Commissioner has reason to believe that the person has information and is capable of giving evidence to the Commissioner that is relevant to the DAFGSA the Commissioner will have powers to compel the person to provide information and to obtain access to premises and documents. The confidentiality of the information obtained by the Commissioner or his officers will be protected (see paragraphs 5.14 to 5.20).

5.6 The Commissioner will have the power to require a person:

•

to provide such information as the Commissioner requires;

•

to attend and give evidence; and

•

to produce documents in the custody or control of the person.

The Commissioner will be able to use these powers for the purposes of the administration of the DAFGSA. [New section 41, item 40 of Schedule 1]

5.7 The Commissioner will be able to require information or answers to be given orally or in writing. [New subsection 41(2), item 40 of Schedule 1]

5.8 The law will also provide for regulations to set out scales for the reimbursement of expenses for persons required to attend before the Commissioner. [New subsection 41(3), item 40 of Schedule 1]

5.9 An individual will not be able to refuse to give information or evidence to the Commissioner on the grounds that providing that information or evidence may incriminate the individual or expose them to a penalty. However, such information or evidence cannot be used against the individual in criminal proceedings except where those proceedings relate to failure to comply with requirements under a taxation law. [New section 42, item 40 of Schedule 1]

5.10 The Commissioner may inspect documents, make and retain copies of those documents or take and retain extracts from documents. [New section 43, item 40 of Schedule 1]

5.11 The Commissioner is also entitled to take possession of documents. The person who was otherwise entitled to possession of the documents can obtain a certified copy of the documents from the Commissioner. The Commissioner must permit the person to inspect and make copies or extracts from the documents until the Commissioner provides the person with certified copies of the documents. [New section 44, item 40 of Schedule 1]

5.12 The Crown in the right of the Commonwealth is also bound but it cannot be prosecuted for an offence. [New section 45, item 40 of Schedule 1]

Protection of confidentiality of information

5.13 The dissemination of information obtained under the DAFGSA will be restricted. [New section 46, item 40 of Schedule 1]

5.14 An obligation of secrecy will be imposed on persons who, in the course of their duties relating to the administration of the DAFGSA, acquire information about the affairs of another person. A person who holds protected information or documents obtained in the course of official employment will be prohibited from making a record of the information or disclosing it to anyone else, except in specified circumstances. The penalty for a breach of this prohibition is imprisonment for 2 years. [New subsection 46(2), item 40 of Schedule 1]

5.15 Protected information will be defined as information obtained under the DAFGSA by a person acting in the course of official employment and relating to the affairs of another person. Protected documents will be documents made or given under, or for the purposes of the DAFGSA. Official employment will mean, as well as appointment or employment by the Commonwealth, performance or services for the Commonwealth or the exercise of powers or functions under a delegation by the Commissioner. [New subsection 46(6), item 40 of Schedule 1]

5.16 A person will be able to record or disclose protected information or documents if:

•

the recording or disclosure is for the purposes of the DAFGSA;

•

it happens in the course of official employment;

•

the person is the Commissioner or Deputy Commissioner of Taxation and the disclosure is to the Chief Executive Officer of Customs, to the Australian Statistician for the purposes of the Census and Statistics Act 1905, to another person carrying out functions under a taxation law or to the Administrative Appeals Tribunal in proceedings under a taxation law; or

•

the person making the disclosure has been authorised by the Commissioner or Deputy Commissioner to disclose the information and the disclosure is to the Chief Executive Officer of Customs, to another person carrying out functions under a taxation law administered by the Commissioner or to the Australian Statistician for census or for the purposes of the Census and Statistics Act 1905.

[New subsection 46(3), item 40 of Schedule 1]

5.17 Disclosure of information or the production of a document can be made to a court if it is necessary to give effect to the DAFGSA. A person acting in the course of official employment will not otherwise be required to produce protected information or documents to a court. [New subsection 46(5), item 40 of Schedule1]

5.18 There will be no circumstances in which a disclosure of protected information or documents can be made to a Minister. [New subsection 46(4), item 40 of Schedule 1]

5.19 These provisions are consistent with secrecy provisions in other Acts administered by the Commissioner.

Access to premises

5.20 An authorised officer will be entitled to access premises where that officer has reason to believe that there are documents, goods or any other property that is relevant to the operation of the DAFGSA. [New subsection 47(1), item 40 of Schedule 1]

5.21 An authorised officer must be given entry at any reasonable time, to land or premises. Authorised officers must also be given full access to documents, goods or other property at all reasonable times. They must be allowed to inspect, examine, count, measure, weigh, gauge, test or analyse any goods or other property and take samples from them. [New section 47(2), item 40, Schedule 1]

5.22 The occupier of the land or premises will be obliged to provide the officer seeking access with reasonable facilities and assistance. [New subsection 47(4), item 40 of Schedule 1]

5.23 For example, an authorised officer will be entitled to reasonable use of photocopying, telephone, fax and light and power facilities and of the work space and facilities to extract relevant information stored on computer. In addition, the officer will be entitled to reasonable assistance, for example, in the form of advice as to where relevant documents are located and access to areas where such documents are located.

5.24 If reasonable facilities and assistance are not provided, the occupier will be guilty of an offence with a maximum penalty of 10 penalty units. [New subsection 47(5), item 40 of Schedule 1]

5.25 An officer will not be entitled to remain on land or premises if they fail to produce their identity card when requested. [New subsection 47(3), item 40 of Schedule 1]

Identity cards

5.26 The Commissioner must issue an identity card to an officer authorised under the DAFGSA. The identity card must be in the form prescribed by the regulations and must contain a recent photograph of the authorised officer. An authorised officer must carry their identity card at all times when performing the functions of an authorised officer under the DAFGSA. [New subsections 48(1), (2), (3) and (5), item 40 of Schedule 1]

5.27 A person is guilty of an offence with a penalty of 1 penalty unit if they fail to immediately return their identity card once they cease to be an authorised officer. [New subsection 48(4), item 40 of Schedule 1]

5.28 The Crown in the right of the Commonwealth is also bound but it cannot be prosecuted for an offence. [New section 49, item 40 of Schedule 1]

Power to stop and search vehicles

5.29 If an authorised officer has reasonable grounds to believe that a particular vehicle is a vehicle which is used by an entity to obtain fuel grants the officer may stop the vehicle, search the vehicle and even detain the vehicle. Once an authorised officer has stopped a vehicle the officer must identify him or herself as an authorised officer. These powers are needed to allow authorised officers to obtain information, make inspections and take samples of fuel from the vehicle.

5.30 An authorised officer may require the driver of such a vehicle to do any or all of the following:

•

stop the vehicle;

•

provide the drivers name and address;

•

provide the name and address of the entity that holds the registration for the vehicle;

•

provide information about the origins and destinations of any passengers or goods being carried by or in the vehicle;

•

if the vehicle is on a journey provide details about the journey;

•

produce a consignment note, passenger manifest or other document about the goods, passengers, origin, destination or the journey;

•

detain the vehicle for a reasonable period to carry out a search or inspection of the vehicle and to take fuel samples from the vehicle.

An authorised officer exercising these powers must show the driver of the vehicle his or her identity card. [New section 50, item 40 of Schedule 1]

5.31 This Bill also inserts similar provisions dealing with self incrimination (see paragraph 5.9) and identity cards (see paragraphs 5.27 and 5.28). [New sections 50 and 51, item 40 of Schedule 1]