Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon. Josh Frydenberg MP)Chapter 7 Tax secrecy
Outline of chapter
7.1 Schedule 7 to this Bill makes amendments to the tax secrecy provisions in the TAA 1953 to allow de-identified protected information to be disclosed to the Treasury for the purposes of policy development, or analysis, in relation to the Coronavirus, including in relation to any programs introduced in response to the economic impacts of the Coronavirus.
7.2 The amendments allow such disclosures to be made until 30 June 2023.
Context of amendments
7.3 The Coronavirus has required quick, efficient and effective policy responses to deal with its economic impacts. The collating and analysing of available information to monitor economic conditions and inform policy development will be vital as Australia enters into the recovery phase of the pandemic.
7.4 For example, data on the number and types of entities accessing the Government's recent economic response packages and information on the recovery across regions, industries, firms and households can assist and better inform the Government in determining whether additional policy responses are required or desirable.
7.5 Analysis of past experiences of economic shocks and subsequent recoveries such as the 1990s recession, and other economic phenomenon, may also yield insights that can inform the response to the Coronavirus pandemic.
7.6 The data will also allow analysis of the economic impact of the Government's response to the Coronavirus.
7.7 In order to support such analyses, the Government has proposed to allow the Commissioner to disclose de-identified information held about the affairs of an entity to the Treasury Secretary for the purposes of policy development or analysis in relation to the Coronavirus, including in relation to any programs introduced in response to the economic impacts of the Coronavirus.
7.8 The ability to make disclosures is time limited to reflect the intention that disclosures will be made for the purposes of policy development, or analysis, in relation to the Coronavirus pandemic, and as Australia recovers from the pandemic.
Summary of new law
7.9 Schedule 7 to this Bill makes amendments to subsection 355-65(8) of Schedule 1 to the TAA 1953 to include an additional purpose for which protected information can be disclosed, and to whom.
7.10 A taxation officer will be permitted to disclose de-identified protected information to the Treasury Secretary for the purposes of policy development, or analysis, in relation to the Coronavirus, including in relation to any programs introduced in response to the economic impacts of the Coronavirus.
7.11 Disclosures can be made until 30 June 2023, after which the law will self-repeal.
Comparison of key features of new law and current law
| New law | Current law |
| A taxation officer will be permitted to disclose de-identified protected information to the Treasury Secretary for the purposes of policy development, or analysis, in relation to the Coronavirus, including in relation to any programs introduced in response to the economic impacts of the Coronavirus.
Such disclosures can be made until 30 June 2023. |
No equivalent. |
Detailed explanation of new law
7.12 Schedule 7 to this Bill inserts new table item 11 into the table in subsection 355-65(8) of Schedule 1 to the TAA 1953 to include an additional purpose for which protected information can be disclosed. [Schedule 7, item 1, table item 11 of the table in subsection 355-65(8) of Schedule 1 to the TAA 1953]
7.13 Section 355-25 of Schedule 1 to the TAA 1953 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.
7.14 An exception to the offence is contained in section 355-65 of Schedule 1 to the TAA 1953. 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.
7.15 The amendments to the table in subsection 355-65(8) of Schedule 1 to the TAA 1953 will allow de-identified protected information to be disclosed to the Secretary of the Department for the purposes of policy development, or analysis, in relation to the Coronavirus, including for programs introduced in response to the economic impacts of the Coronavirus. Analysis can include economic analysis in relation to the Coronavirus.
7.16 The amendment expands on the existing provisions that allow disclosure of de-identified information to the Secretary of the Department such as for the design and amendment of a taxation law or the purpose estimating or analysing taxation revenue or estimating the cost of policy proposals.
7.17 The Secretary of the Department is the Secretary of the Department of State that is administered by the Minister administering these provisions. Currently, this is the Secretary of the Department of the Treasury.
7.18 A defendant bears the evidential burden in relation to the matters in this exception. 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.
7.19 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, whether it is de-identified 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.
7.20 The amendment self-repeals after 30 June 2023. Disclosures can only be made under these provisions up until 30 June 2023. This ensures that information can be collated an analysed to inform policy development as Australia enters into the recovery phase of the Coronavirus. [Schedule 7, item 3, table item 11 of the table in subsection 355-65(8) of Schedule 1 to the TAA 1953]
Commencement and application of the amendments
7.21 Part 1 of Schedule 7 to this Bill commences on the day after the Bill receives Royal Assent.
7.22 The amendments made by item 1 of Part 1 of Schedule 7 to this Bill apply to information disclosed on or after the day after this Act receives Royal Assent. [Schedule 7, item 2]
7.23 Part 2 of Schedule 7 to this Bill commences on 1 July 2023.
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