Income Tax Assessment Act 1936
The Commissioner shall have the general administration of this Act.
Note:
An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953 .
View history note
Hide history noteS 8 amended by No 145 of 2010, s 3 and Sch 2 item 31, by inserting the note at the end, effective 17 December 2010.
S 8 substituted by No 1 of 1953.
(Repealed by No 1 of 1953) FORMER SECTION 10 10 POWERS OF SECOND COMMISSIONER
(Repealed by No 123 of 1984)
S 10 amended by No 51 and 216 of 1973 and No 1 of 1953.
(Repealed by No 1 of 1953) FORMER SECTION 12 12 DELEGATION BY THE COMMISSIONER
(Repealed by No 1 of 1953) FORMER SECTION 13 13 REFERENCES TO COMMISSIONER
(Repealed by No 123 of 1984)
S 13 amended by No 216 of 1973 and No 1 of 1953.
The Commissioner shall, as soon as practicable after 30 June in each year, prepare and furnish to the Minister a report on the working of this Act, including any breaches or evasions of this Act of which the Commissioner has notice.
14(2)
The Minister shall cause a copy of a report furnished to him or her under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which he or she receives the report.
S 14(2) amended by No 41 of 2011, s 3 and Sch 5 Pt 27, by removing gender-specific language, effective 27 June 2011.
14(3)
For the purposes of section 34C of the Acts Interpretation Act 1901 , a report that is required by subsection (1) to be furnished as soon as practicable after 30 June in a year shall be taken to be a periodic report relating to the working of this Act during the year ending on that 30 June.
S 14(3) inserted by No 123 of 1984.
S 14 substituted by No 39 of 1983.
FORMER SECTION 15 15 GOVERNOR-GENERAL MAY MAKE ARRANGEMENTS WITH GOVERNOR OF STATE
(Repealed by No 87 of 1978) FORMER SECTION 16 16 OFFICERS TO OBSERVE SECRECY
(Repealed by No 145 of 2010)
Former s 16 repealed by No 145 of 2010, s 3 and Sch 2 item 32, effective 17 December 2010. S 16 formerly read:
Director of Public Prosecutions
Definition of
Director of Public Prosecutions
inserted by No 168 of 1985.
SECTION 16 OFFICERS TO OBSERVE SECRECY
16(1)
In this section, unless the contrary intention appears:
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.
Definition of Royal Commission amended by No 108 of 1987.
Special Prosecutor
means a person holding office as, or acting as, a Special Prosecutor under the
Special Prosecutors Act 1982
.
Definition of Special Prosecutor inserted by No 168 of 1985.
tax-related offence
means:
(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).
Definition of tax-related offence inserted by No 168 of 1985.
S 16(1) substituted by No 38 of 1982.
16(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.
S 16(1A) amended by No 123 of 1985 and inserted by No 124 of 1984.
16(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).
S 16(2) amended by No 146 of 2001 and No 49 of 1985.
16(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 .
S 16(2A) inserted by No 146 of 2001.
16(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.
S 16(3) amended by No 73 of 1989 and No 87 of 1978.
16(4)
Nothing in the 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; or
(b) any board, or member of a board, performing a function or exercising a power under a taxation law, for the purpose of performing that function or exercising that power; or
(c) the Tribunal in connection with proceedings under an Act of which the Commissioner has the general administration; or
(ca) (Repealed by No 101 of 2006 )
(d) the Repatriation Commission for the purpose of the administration of any law of the Commonwealth relating to pensions; or
(e) the Employment Secretary, or the Families Secretary, for the purpose of the administration of the social security law; or
(ea) the Employment Secretary for the purpose of the administration of any law of the Commonwealth relating to pensions, allowances or benefits; or
(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; or
(f) the Health Secretary for the purpose of the administration of any law of the Australian Capital Territory or of the Northern Territory which is administered by the Health Minister; or
(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; or
(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 ; or
(fc) the Families Secretary for the purpose of the administration of the A New Tax System (Family Assistance) (Administration) Act 1999 ; or
(fca) the Families Secretary, or the Chief Executive Officer of Centrelink, for the purpose of the administration of the Paid Parental Leave Act 2010 ; or
(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; or
(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; or
(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; or
(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; or
(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; or
(h) the Defence Secretary, 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; or
(ha) the authorized person holding office under the Loan (Income Equalization Deposits) Act 1976 for the purposes of the administration of that Act; or
(hb) the Education Secretary or the Secretary of the Department of Human Services, for the purpose of the administration of any law of the Commonwealth relating to financial assistance to students; or
(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; or
(hbb) an approved clearing house (within the meaning of the Superannuation Guarantee (Administration) Act 1992 ), for the purposes of that body performing its functions in relation to superannuation contributions; or
(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; or
(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 ; or
(hcaa) the Australian Prudential Regulation Authority, or the Australian Securities and Investments Commission, for the purpose of that body performing its functions in relation to FHSAs; or
(hcb) the Australian Prudential Regulation Authority, for the purpose of the administration of the Financial Institutions Supervisory Levies Collection Act 1998 ; or
(hd) the Immigration Secretary, for the purpose of assisting in locating persons who are unlawfully in Australia; or
(j) the Housing Secretary or the Secretary of the Department of the Treasury, 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; or
(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 ; or
(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; or
(n) if the information relates to the non-compliance of a private ancillary fund or charity (or a trustee of a private ancillary fund or charity) with a law of the Commonwealth, a State or a Territory - the Attorney-General of a State or Territory for the purposes of the administration of a law of the State or Territory governing trusts or charities.
Archived:
S 16(4)(ca) repealed as inoperative by No 101 of 2006 , s 3 and Sch 1 item 37, effective 14 September 2006. For application and savings provisions and for former wording see the CCH Australian Income Tax Legislation archive .
S 16(4) amended by No 105 of 2010, s 3 and Sch 1 item 38, by inserting para (fca) after para (fc), effective 1 October 2010.
S 16(4) amended by No 56 of 2010, s 3 and Sch 1 item 7, by inserting para (hbb), effective 1 July 2010.
S 16(4) amended by No 114 of 2009, s 3 and Sch 1 item 6, by substituting para (b), effective 1 March 2010. Para (b) formerly read:
(b) any board exercising any function under any Act administered by the Commissioner of Taxation, or any member of any such Board; or
S 16(4) amended by No 88 of 2009, s 3 and Sch 5 items 51 to 68, by inserting " or " at the end of paras (a), (b), (c) and (d), substituting para (e), substituting " Employment Secretary " for " Secretary to the Department of Employment, Education and Training " in para (ea), inserting " or " at the end of para (ea), substituting " ; or " for " (within the meaning of the Social Security Act 1991 ); " in para (eb), substituting " Health Secretary " for " Secretary to the Department of Health " and substituting " Health Minister " for " Minister of State for Health " in para (f), inserting " or " at the end of paras (f), (fa) and (fb), substituting " Families Secretary " for " Secretary to the Department of Family and Community Services " in para (fc), inserting " or " at the end of paras (fc), (fd), (g), (gaa), (ga) and (gb), substituting " Defence Secretary " for " Secretary, Department of Defence, " in para (h), inserting " or " at the end of paras (h) and (ha), substituting " Education Secretary or the Secretary of the Department of Human Services, " for " Secretary to the Department of Education and the Secretary to the Department of Social Security " in para (hb), inserting " or " at the end of paras (hb), (hba), (hc), (hca), (hcaa) and (hcb), substituting " Immigration Secretary " for " Secretary to the Department of Immigration and Ethnic Affairs " in para (hd), inserting " or " at the end of para (hd), substituting " Housing Secretary or the Secretary of the Department of the Treasury " for " Secretary to the Department of Housing and Construction " in para (j) and inserting " or " at the end of paras (j) and (ja), effective 18 September 2009. Para (e) formerly read:
(e) the Secretary of the Department dealing with matters relating to the social security law (within themeaning of the Social Security Act 1991 ) for the purpose of the administration of that law; or
S 16(4) amended by No 88 of 2009, s 3 and Sch 2 item 3, by inserting para (n) at the end, effective 1 October 2009.
S 16(4) amended by No 92 of 2008, s 3 and Sch 2 item 38, by inserting para (hcaa), effective 1 October 2008.
S 16(4) amended by No 164 of 2007 , s 3 and Sch 12 item 66, by substituting " Innovation Australia, established by section 6 of the Industry Research and Development Act 1986 , " for " the PDF Registration Board established under section 5 of the Pooled Development Funds Act 1992 " in para (m), effective 27 September 2007.
S 16(4) amended by No 32 of 2007, s 3 and Sch 3 item 1, by substituting para (fb), effective 1 July 2007. Para (fb) formerly read:
(fb) the Chief Executive Officer of Medicare Australia for the purpose of the administration of the Private Health Insurance Incentives Act 1997 or the Private Health Insurance Incentives Act 1998 ;
S 16(4) amended by No 160 of 2005, No 111 of 2005, No 105 of 2004, No 52 of 2004, No 122 of 2003, No 144 of 2001, inserted by No 75 of 2001 and amended by No 83 of 1999, No 179 of 1999, No 128, No 48 and No 45 of 1998, No 196, No 56 and No 29 of 1997, No 184, No 163 and No 82 of 1994, No 18 and No 82 of 1993, No 191 and No 98 of 1992, No 107 and No 73 of 1989, No 78, No 75 and No 59 of 1988, No 138 and No 108 of 1987, No 49 and No 48 of 1986, No 168, No 123, No 104 and No 49 of 1985, No 174, No 165, No 123 and No 42 of 1984, No 106, No 80, No 76 and No 38 of 1982, No 87 of 1978, No 50 of 1976, No 80 of 1975, No 216, No 164 and No 51 of 1973, No 68 of 1964, No 18 of 1960, No 1 of 1953, No 90 of 1952, No 44 of 1951, No 44 of 1948, No 28 of 1944, No 10 of 1943, No 58 of 1941 and No 46 of 1938.
16(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
(Repealed by
No 97 of 2008
)
Definition of " research and development activities " repealed by No 97 of 2008 , s 3 and Sch 3 item 8, effective 3 October 2008. The definition formerly read:
research and development activities
has the same meaning as in section 73B .
Definition of " research and development activities " inserted by No 59 of 1988.
S 16(4AA) amended by No 160 of 2005; inserted by No 49 of 1985.
Archived:
The following definitions in s 16(4AA) have been substituted by No 101 of 2006 , s 3 and Sch 2 items 152 to 153, effective 14 September 2006. For application and savings provisions and for former wording see the CCH Australian Income Tax Legislation archive : employee, employer.
16(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.
S 16(4A) amended by No 146 of 2001, No 108 of 1987, No 168 of 1985, No 104 of 1985, No 42 of 1984, No 39 of 1982, and inserted by No 38 of 1982.
16(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 .
S 16(4AAA) inserted by No 146 of 2001.
16(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.
S 16(4B) amended by No 168 of 1985 and inserted by No 38 of 1982.
16(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.
S 16(4C) inserted by No 38 of 1982.
16(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.
S 16(4D) amended by No 168 of 1985 and inserted by No 38 of 1982.
16(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.
S 16(4E), (4EA), (4EB), (4EC), (4ED) and (4EE) substituted for s 16(4E) by No 146 of 2001.
S 16(4E) inserted by No 38 of 1982.
16(4EA)
Subject to subsection (4E), the Attorney-General must not divulge or communicate information communicated to the Attorney-General under paragraph (4A)(b).
S 16(4E), (4EA), (4EB), (4EC), (4ED) and (4EE) substituted for s 16(4E) by No 146 of 2001.
16(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 .
S 16(4E), (4EA), (4EB), (4EC), (4ED) and (4EE) substituted for s 16(4E) by No 146 of 2001.
16(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.
S 16(4E), (4EA), (4EB), (4EC), (4ED) and (4EE) substituted for s 16(4E) by No 146 of 2001.
16(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.
S 16(4E), (4EA), (4EB), (4EC), (4ED) and (4EE) substituted for s 16(4E) by No 146 of 2001.
16(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 .
S 16(4E), (4EA), (4EB), (4EC), (4ED) and (4EE) substituted for s 16(4E) by No 146 of 2001.
16(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.
S 16(4F), (4FAA) and (4FAB) substituted for s 16(4F) by No 146 of 2001.
S 16(4F) amended by No 104 of 1985, No 42 of 1984, and inserted by No 38 of 1982.
16(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 .
S 16(4F), (4FAA) and (4FAB) substituted for s 16(4F) by No 146 of 2001.
16(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 .
S 16(4F), (4FAA) and (4FAB) substituted for s 16(4F) by No 146 of 2001.
16(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.
S 16(4FA), (4FAAA) and (4FAAB) substituted for s 16(4FA) by No 146 of 2001.
S 16(4FA) inserted by No 168 of 1985.
16(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 .
S 16(4FA), (4FAAA) and (4FAAB) substituted for s 16(4FA) by No 146 of 2001.
16(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 .
S 16(4FA), (4FAAA) and (4FAAB) substituted for s 16(4FA) by No 146 of 2001.
16(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.
S 16(4FB), (4FBA) and (4FBB) substituted for s 16(4FB) by No 146 of 2001.
S 16(4FB) amended by No 46 of 1986 and inserted by No 168 of 1985.
16(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 .
S 16(4FB), (4FBA) and (4FBB) substituted for s 16(4FB) by No 146 of 2001.
16(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 .
S 16(4FB), (4FBA) and (4FBB) substituted for s 16(4FB) by No 146 of 2001.
16(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.
S 16(4G) amended by No 146 of 2001 and No 168 of 1985 and inserted by No 38 of 1982.
16(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.
S 16(4H) amended by No 146 of 2001 and inserted by No 38 of 198.
16(4HA) - (4HS)
(Repealed by No 104 of 1985)
S 16(4HJ) amended by No 124 of 1984.
S 16(4HA) - (4HS) inserted by No 42 of 1984.
16(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.
S 16(4J) amended by No 146 of 2001, No 168 of 1985, No 104 of 1985 and No 42 of 1984 and inserted by No 38 of 1982.
16(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.
S 16(4JA) amended by No 146 of 2001 and inserted by No 168 of 1985.
16(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.
S 16(4JB) amended by No 146 of 2001 and inserted by No 168 of 1985.
16(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 .
S 16(4JC) inserted by No 146 of 2001.
16(4K)
(Repealed by No 104 of 1985)
Former s 16(4K) amended by No 104 of 1985.
16(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.
S 16(5) amended by No 191 of 1992, No 104 of 1985, No 38 of 1982, No 108 of 1981 and No 51 of 1973.
16(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.
S 16(5A) amended by No 87 of 1978 and No 51 of 1973; inserted by No 58 of 1941.
16(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 Trade Secretary, 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.
S 16(5B) amended by No 88 of 2009, s 3 and Sch 5 item 69, by substituting " Trade Secretary " for " Secretary to the Department of Trade " , effective 18 September 2009.
S 16(5B) amended by No 47 of 1984, No 36 of 1978, No 216 of 1973, and inserted by No 87 of 1968.
16(5BA)
(Repealed by No 88 of 2009)
S 16(5BA) repealed by No 88 of 2009, s 3 and Sch 5 item 308, effective 18 September 2009. S 16(5BA) formerly read:
16(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.
S 16(5BA) amended by No 49 of 1985 and inserted by No 47 of 1984.
16(5C)
The Secretary to the Department of the Treasury, the Trade Secretary 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
(b) divulge or communicate any such information to any person who is not a Minister of State or officer or employee of the Commonwealth.
S 16(5C) amended by No 88 of 2009, s 3 and Sch 5 items 309 and 310, by omitting " , the Secretary to the Department of Science " before " or any other officer or employee " and omitting " or (5BA) " after " subsection (5B) " in para (a), effective 18 September 2009.
S 16(5C) amended by No 88 of 2009, s 3 and Sch 5 item 70, by substituting " Trade Secretary " for " Secretary to the Department of Trade " , effective 18 September 2009.
S 16(5C) amended by No 146 of 2001, No 49 of 1985, No 47 of 1984, No 108 of 1981, No 36 of 1978 and No 216 of 1973 and inserted by No 87 of 1968.
16(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 .
S 16(5CA) inserted by No 146 of 2001.
16(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.
S 16(5D) amended by No 108 of 1981 and inserted by No 87 of 1968.
16(6)
Any officer shall, if and when required by the Commissioner, a Second Commissioner or a 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.
S 16(6) amended by No 143 of 2007 , s 3 and Sch 7 item 104, by substituting " 100 penalty units " for " $10,000 " in the penalty, effective 24 September 2007.
S 16(6) amended by No 91 of 2000, No 97 of 1988, No 123 of 1984, No 108 of 1981, No 216 of 1973 and No 143 of 1965.
(Repealed by No 145 of 2010)
S 16A repealed by No 145 of 2010, s 3 and Sch 2 item 32, effective 17 December 2010. S 16A formerly read:
inquiry
SECTION 16A PROVISIONS RELATING TO THE FITZGERALD INQUIRY
16A(1)
In this section:
means the inquiry being made by Gerald Edward Fitzgerald Q.C. under the Order in Council that was made under
The Commissions of Inquiry Act
of 1950 of the State of Queensland and published in the Queensland Government Gazette, on 26 May 1987, at pages 758A and 758B, being that Order in Council as amended by:
(a)
the Order in Council made under that Act and published in the Queensland Government Gazette, on 24 June 1987, at pages 1841A and 1841B; and
(b)
any other instrument, whether made before or after the commencement of this section.
proceeds of crime proceedings
means proceedings under the
Proceeds of Crime Act 1987
or a law of the State of Queensland relating to the restraint of dealing with, or the confiscation of, proceeds of crime, being:
(a) if the proceedings relate to a tax-related offence - proceedings commenced before or after a conviction for that offence; and
(b) if the proceedings relate to any other offence - proceedings commenced after a conviction for that offence.
State Attorney-General
means the Attorney-General of the State of Queensland.
State Commissioner
means Gerald Edward Fitzgerald Q.C., in his capacity as the person making the inquiry.
State Police Commissioner
means the Commissioner of the Police Force of the State of Queensland or a person for the time being performing the duties of that Commissioner.
16A(2)
In this section, Director of Public Prosecutions , officer , Special Prosecutor and tax-related offence have the same respective meanings as in section 16 .
16A(3)
Nothing in section 16 shall be deemed to prohibit the Commissioner of Taxation, a Second Commissioner or a Deputy Commissioner, or any person authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner, from communicating any information to the State Commissioner for the purposes of the inquiry.
16A(4)
Subject to subsections (8) and (9), where information respecting the affairs of a person is communicated to the State Commissioner, the State Commissioner may:
(a) 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 of the State of Queensland in a report by the State Commissioner; or
(ii) divulge the information in the course of a proceeding conducted by the State Commissioner, other than a proceeding conducted in private;
(b) divulge the information in the course of a proceeding conducted in private by the State Commissioner;
(c) communicate the information 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;
(d) communicate the information to the State Attorney-General if the State Commissioner is of the opinion that the information indicates that a person may have committed an offence against a law of the State of Queensland punishable by imprisonment for life or for a period exceeding 6 months;
(e) communicate the information to the Director of Public Prosecutions or a Special Prosecutor if the State Commissioner is of the opinion that the information relates, or may relate, to an investigation of a tax-related offence or to proceeds of crime proceedings, being proceedings under the Proceeds of Crime Act 1987 ; and
(f) communicate the information to the Director of Prosecutions of the State of Queensland if the State Commissioner is of the opinion that the information relates, or may relate, to proceeds of crime proceedings, being proceedings under a law of the State of Queensland relating to the restraint of dealing with, or the confiscation of, proceeds of crime.
16A(5)
Where information respecting the affairs of a person is communicated to the State Commissioner under this section, the State Commissioner may divulge or communicate the information to a person or employee under the control of the State Commissioner for the purposes of, or in connection with, the inquiry but shall not, except under subsection (4), otherwise divulge or communicate the information.
16A(6)
Where the State Commissioner ceases to be the State Commissioner, he shall not in any circumstances make a record of, or divulge or communicate, any information respecting the affairs of a person that was communicated to the State Commissioner under this section.
16A(7)
A person to whom information has been communicated under subsection (5) or this subsection shall not:
(a) while he or she is a person or employee under the control of the State Commissioner - divulge or communicate the information except to the State Commissioner, or another person or employee under the control of the State Commissioner, for the purposes of, or in connection with, the inquiry; or
(b) after he or she ceases to be such a person or employee - in any circumstances make a record of, or divulge or communicate, the information.
16A(8)
Where information respecting the affairs of a person is communicated to the State Commissioner under this section, nothing in this section 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 given to the Commissioner of Taxation on behalf of the company; or
(c) the person who gave the information to the Commissioner of Taxation.
16A(9)
Where the communication of information to a person is permitted under subsection (8), nothing in this section prevents the communication of the information to a barrister or solicitor appearing before the State Commissioner for the purpose of representing the person.
16A(10) [ Other information communicated under subsection (4)(b), (8) or (9)]
Where information is communicated to a person under subsection (8) or (9) or paragraph (4)(b), being information that was not given to the Commissioner of Taxation by the person and does not relate to the affairs of the person, the person shall not in any circumstances make a record of, or divulge or communicate, the information.
16A(11)
Where information is communicated to the Attorney-General under this section:
(a) the Attorney-General may communicate the information to the Commissioner of Police;
(b) the Attorney-General shall not otherwise divulge or communicate the information except to a person or employee under the control of the Attorney-General for the purpose of, or in connection with, the performance by the Attorney-General of the function under paragraph (a);
(c) a person who has ceased to be the Attorney-General shall not in any circumstances make a record of, or divulge or communicate, the information; and
(d) a person to whom information has been communicated under paragraph (b) or this paragraph shall not:
(i) while he or she is a person or employee under the control of the Attorney-General - divulge or communicate the information except 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 the function under paragraph (a); or
(ii) after he or she ceases to be such a person or employee - in any circumstances make a record of, or divulge or communicate, the information.
16A(12)
Where information is communicated to the State Attorney-General under this section:
(a) the State Attorney-Generalmay communicate the information to the State Police Commissioner;
(b) the State Attorney-General shall not otherwise divulge or communicate the information except to a person or employee under the control of the State Attorney-General for the purpose of, or in connection with, the performance by the State Attorney-General of the function under paragraph (a);
(c) a person who has ceased to be the State Attorney-General shall not in any circumstances make a record of, or divulge or communicate, the information; and
(d) a person to whom information has been communicated under paragraph (b) or this paragraph shall not:
(i) while he or she is a person or employee under the control of the State Attorney-General - divulge or communicate the information except to the State Attorney-General, or another person or employee under the control of the State Attorney-General, for the purposes of, or in connection with, the performance by the State Attorney-General of the function under paragraph (a); or
(ii) after he or she ceases to be such a person or employee - in any circumstances make a record of, or divulge or communicate, the information.
16A(13)
Where information is communicated to the Commissioner of Police or the State Police Commissioner under this section:
(a) that Commissioner shall not divulge or communicate the information except to a person or employee under the control of that Commissioner 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;
(b) a person who has ceased to be the Commissioner of Police or the State Police Commissioner, as the case may be, shall not in any circumstances make a record of, or divulge or communicate, the information; and
(c) a person to whom information has been communicated by a Commissioner under paragraph (a) or this paragraph shall not:
(i) while he or she is a person or employee under the control of that Commissioner - divulge or communicate the information except to that Commissioner, or another person or employee under the control of that Commissioner, for the purposes of, or in connection with, the performance by that Commissioner of the duties of his or her office, or the performance by that person or employee of the duties of his or her office or employment, as the case may be; or
(ii) after he or she ceases to be such a person or employee - in any circumstances make a record of, or divulge or communicate, the information.
16A(14)
Where information is communicated to the Director of Public Prosecutions or the Director of Prosecutions of the State of Queensland under this section:
(a) that Director shall not divulge or communicate the information except to a person or employee under the control of that Director 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;
(b) a person who is no longer the Director of Public Prosecutions or the Director of Prosecutions of the State of Queensland, as the case may be, shall not in any circumstances make a record of, or divulge or communicate, the information; and
(c) a person to whom information has been communicated by a Director under paragraph (a) or this paragraph shall not:
(i) while he or she is a person or employee under the control of that Director - divulge or communicate the information except to that Director, or to another person or employee under the control of that Director, for the purposes of, or in connection with, the performance by that Director of the duties of his or her office, or the performance by that person or employee of the duties of his or her office or employment, as the case may be; or
(ii) after he or she ceases to be such a person or employee - in any circumstances make a record of, or divulge or communicate, the information.
16A(15)
Where information is communicated to a Special Prosecutor under this section:
(a) the Special Prosecutor shall not divulge or communicate the information except 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;
(b) a person who is no longer a Special Prosecutor shall not, in any circumstances, make a record of, or divulge or communicate, the information; and
(c) a person to whom information has been communicated under paragraph (a) or this paragraph shall not:
(i) while he or she is a person or employee under the control of the Special Prosecutor - divulge or communicate the information except to the Special Prosecutor, or to another person or employee under the control of 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 the performance by that other person or employee of the duties of his or her office or employment, as the case may be; or
(ii) when he or she is no longer such a person or employee - in any circumstances, make a record of, or divulge or communicate, the information.
16A(16)
In this section:
(a) a reference to a person under the control of the State Commissioner includes a reference to:
(i) a barrister or solicitor appointed by the State Attorney-General to assist the State Commissioner;
(ii) a person assisting a barrister or solicitor so appointed; and
(iii) a member of the police force of the State of Queensland assigned to the inquiry to carry out an investigation on behalf of, or under the control of, the State Commissioner;
(b) a reference to a person under the control of the Attorney-General includes a reference to:
(i) an officer of, or a person employed in, the Attorney-General's Department;
(ii) a person holding office, or employed, under an Act administered by the Attorney-General; and
(iii) a person under the control of a person referred to in subparagraph (ii); and
(c) a reference to a person under the control of the State Attorney-General includes a reference to:
(i) an officer of, or a person employed in, the Department of Justice of the State of Queensland;
(ii) a person holding office, or employed, under a law of that State administered by the State Attorney-General; and
(iii) a person under the control of a person referred to in subparagraph (ii).
16A(17)
A person to whom information has been communicated under this section shall not be required to divulge or communicate that information to any court.
16A(18)
Where information is communicated to a person under paragraph (4)(e) or (f) or subsection (14) or (15), nothing in subsection (14) or (15) 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 proceeds of crime proceedings against a person; or
(b) if the information is admissible in the prosecution of a person for a tax-related offence, or in proceeds of crime proceedings against a person, the communication of the information to a court in proceedings before that court against the last-mentioned person for that offence or in those proceeds of crime proceedings, as the case may be.
16A(19)
A person to whom information has been communicated under paragraph (18)(a) shall not make a record of, or divulge or communicate, the information except for the purposes of, or in connection with, the prosecution of a person for a tax-related offence or proceeds of crime proceedings against a person.
Penalty: $10,000 or imprisonment for 2 years, or both.
S 16A(19) amended by No 97 of 1988.
S 16A inserted by No 120 of 1987.