House of Representatives

Supplementary Explanatory Memorandum & Correction to the Explanatory Memorandum

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

Chapter 4 - Access to ABN information

Outline of Chapter

4.1 This Chapter explains amendments to the ABN Act which will:

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limit public access to details contained in the ABR;

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provide the Registrar of the ABR with the power to not publicly release any information, that would otherwise be released, where he believes that it is not appropriate for him to release that information; and

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enable state, territory and local government bodies access to ABN information through the same mechanism as the Commonwealth.

Context of reform

4.2 The ABN Act was enacted to put in place a unique identifier system so that businesses can identify themselves reliably:

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in all their dealings with the Australian Government;

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for all other Commonwealth purposes;

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eventually, for all dealings with state, territory and local government bodies; and

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in their dealings with other businesses and the public.

4.3 This measure is designed to address some concerns which have been expressed about having certain personal information entered in the ABR publicly available.

Detailed explanation of new law

Access to ABN information

4.4 Section 26 of the ABN Act is replaced with new section 26 to limit public access to details contained in the ABR [Schedule 4C, item 2] . The limited information available to the public is:

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the entity's name;

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the entity's ABN;

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the date of effect of the registration;

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either the business name registered for the entity under the law of a state or territory, or if a business name is not registered for the entity, any name used for business purposes by the entity;

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the date of effect of any GST registration under section 25-10 of the GST Act;

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the date of effect of any GST cancellation under section 25-60 of the GST Act;

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any statement required to be entered in the ABR in relation to the entity under section 30-229 of the ITAA 1997 (e.g. whether the entity, or a fund it operates, is a deductible gift recipient);

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the entity's Australian Company Number and Australian Registered Body Number (if any);

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the kind of entity;

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the state or territory in which the entity's principal place of business is located, and the postcode relating to the location; and

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any details prescribed in the ABN regulations for the purposes of this section. (The purpose of this regulation making power is to enable further information to be made available for public access as the ABR develops its whole of government objectives. Any proposed regulation would be made in consultation with the Privacy Commissioner).

[Schedule 4C, item 2, new subsection 26(3)]

4.5 This limitation on public access effectively excludes any personal information of concern to the Privacy Commissioner, other than the personal name of a sole trader. The personal name of a sole trader must remain in all but the most extreme of circumstances if the ABN Act is to achieve its stated objectives.

4.6 This amendment also provides the Registrar with the ability to deny public access to any information, that would otherwise be publicly available, where he is satisfied that it is not appropriate to do so. This discretion would only be used in very limited circumstances. For example, where there was a likelihood of personal danger, the Registrar would be able to remove a complete record or partial details from publicly available information. [Schedule 4C, item 2, new subsection 26(4)]

Evidentiary value of ABR

4.7 Section 27 of the ABN Act sets out how the ABR, or information from the ABR, is to be provided as evidence in a court of law. A new subsection (7) is added to the section to allow the Registrar to limit the information to be provided to that which the Registrar considers appropriate. If the Registrar has limited public access to an entity's details under new section 26 , it would normally be expected that the Registrar would also limit those details when provided to a court. [Schedule 4C, item 3, new subsection 27(7)]

Review of decisions

4.8 New Division 10A is inserted to allow a decision by the Registrar to publicly display a registered entity's details, where the entity had requested that the details not be displayed, to be reviewable by the AAT. [Schedule 4C, item 4, new sections 27A and 27B]

Access to information by state, territory and local governments

4.9 As a consequence of limiting public access to ABR information under new section 26 , state, territory and local governments and their instrumentalities, would no longer be able to obtain sufficient ABN information to carry out their functions. To address this limitation, paragraphs 30(3)(c) and (d) of the ABN Act are amended to entitle state, territory and local government instrumentalities to access ABN information in the same way as the Commonwealth accesses ABN information. [Schedule 4C, items 5, 6 and 8, new subparagraphs 30(3)(c)(vi) to (viii), new subparagraphs 30(3)(d)(iv) to (vi), new paragraphs (c) and (d) of the definition of 'official employment' in section 41]

4.10 Also, the note in section 3 of the ABN Act is updated to reflect that this information is now accessed through section 30. [Schedule 4C, item 1]

Disclosure of information to elected officials

4.11 Subsection 30(4) of the ABN Act ensures that an Agency Minister is not entitled to receive ABR information from the Registrar. The provision preserves the principle that an elected representative such as a minister should not be placed in a position of having access to personal information of a person subject to his or her portfolio.

4.12 Subsection 30(4) is replaced with new subsection 30(4) which also prevents state or territory ministers and elected representatives to local governing bodies from receiving ABR information. [Schedule 4C, item 7]

Transitional

4.13 This provision provides that in spite of the repeal of the original section 26, the Regulations already made for the purposes of subsection 26(1) of the ABN Act, as in force immediately prior to the commencement of new Schedule 4C , continue in force. [Schedule 4C, item 9]