Sch 1 inserted by No 178 of 1999 (as amended by No 179 of 1999 and No 44 of 2000).

Ch 5 title inserted by No 73 of 2006 , s 3 and Sch 5 item 44, effective 1 July 2006.

Div 355 substituted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).

No 145 of 2010, s 3 and Sch 2 items 124 and 125 contain the following transitional provisions, effective 17 December 2010:

124 Transitional - information obtained under amended or repealed provisions before commencement  
If:

(a) before the commencement of this item, information was acquired by an entity under, or for the purposes of, a taxation law (within the meaning of the Income Tax Assessment Act 1997 ), other than as a taxation officer; and

(b) the information is protected information within the meaning of section 355-30 of Schedule 1 to the Taxation Administration Act 1953 (as inserted by item 1 of Schedule 1 to this Act);

then, after that commencement, the information is taken to be information acquired by the entity under an exception in Subdivision 355-B or 355-C in Schedule 1 to the Taxation Administration Act 1953 (as inserted by item 1 of Schedule 1 to this Act).

125 Transitional provision - authorisations  
(1)
If, immediately before the commencement of this item, an officer of a law enforcement agency was an authorised law enforcement agency officer within the meaning of the Taxation Administration Act 1953 (as in force at that time), the officer is taken, on and after that commencement, to be an authorised law enforcement agency officer within the meaning of the Income Tax Assessment Act 1997 .

(2)
If, immediately before the commencement of this item, a person employed under paragraph 84(1)(a) or (b) of the Australian Security Intelligence Organisation Act 1979 was an authorised ASIO officer within the meaning of the Taxation Administration Act 1953 (as in force at that time), the person is taken, on and after that commencement, to be an authorised ASIO officer within the meaning of the Income Tax Assessment Act 1997 .

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Div 355 formerly read:

Division 355 - Confidentiality

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History

Div 355 inserted by No 73 of 2006 , s 3 and Sch 5 item 49, effective 1 July 2006.

Guide to Division 355

SECTION 355-1 WHAT THIS DIVISION IS ABOUT  

This Division prohibits the disclosure of indirect tax information by officials except in certain circumstances.

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History

S 355-1 inserted by No 73 of 2006 , s 3 and Sch 5 item 49, effective 1 July 2006.

Subdivision 355-A - Protection of confidentiality of indirect tax information

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History

Subdiv 355-A inserted by No 73 of 2006 , s 3 and Sch 5 item 49, effective 1 July 2006.

SECTION 355-5 PROTECTION OF CONFIDENTIALITY OF INDIRECT TAX INFORMATION  
Object

355-5(1)
The object of this section is to protect the confidentiality of taxpayers ' personal tax affairs by restricting what you may do with *indirect tax information and *indirect tax documents.

Offence

355-5(2)
You commit an offence if:

(a) you:

(i) make a record of information; or

(ii) disclose information to anyone else; and

(b) the information was disclosed to you, or obtained by you, in the course of:

(i) your appointment or employment by the Commonwealth; or

(ii) the performance of services by you for the Commonwealth; or

(iii) the exercise of powers, or the performance of functions, by you under a delegation by the Commissioner; and

(c) the information was disclosed to you, or obtained by you, under an *indirect tax law; and

(d) the information relates to the affairs of an entity other than you.

Penalty: Imprisonment for 2 years.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

355-5(3)
Strict liability applies to paragraph (2)(c).

Note:

For strict liability, see section 6.1 of the Criminal Code .

355-5(4)
Subsection (2) does not apply if you make the record for, or you disclose the information to, an entity who is not a Minister and:

(a) the making of the record or the disclosure is for the purposes of an *indirect tax law; or

(b) the making of the record or the disclosure is in the course of:

(i) the performance of the duties of your appointment or employment by the Commonwealth; or

(ii) the performance of services by you for the Commonwealth; or

(iii) the exercise of powers, or performance of functions, by you under a delegation by the Commissioner.

Note 1:

A defendant bears an evidential burden in relation to the matters in subsection (4): see subsection 13.3(3) of the Criminal Code .

Note 2:

It is not a breach of subsection (2) to record or disclose information in accordance with an obligation Australia has under an agreement with another country. See section 23 of the International Tax Agreements Act 1953.

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History

S 355-5(4) amended by No 100 of 2006, s 3 and Sch 2 items 4 to 6, by substituting para (a) and inserting Note 2, applicable to requests for the exchange of information made after 14 September 2006. Para (a) formerly read:

(a) the making of the record or the disclosure is for the purposes of:

(i) an *indirect tax law; or

(ii) complying with an obligation Australia has under an agreement with another country; or

355-5(5)
Subsection (2) does not apply if:

(a) you are:

(i) the Commissioner; or

(ii) a Deputy Commissioner; or

(iii) an individual authorised by the Commissioner or a Deputy Commissioner to disclose the information; and

(b) an item in the following table covers your disclosure:

Disclosures
Item	The disclosure is to...	and the disclosure...
1	any entity (other than a Minister)	is for the purpose of the entity carrying out functions under a *taxation law.
2	the Administrative Appeals Tribunal	is in connection with proceedings under a *taxation law.
3	the Australian Statistician	is of information to be used for the purposes of the Census and Statistics Act 1905 .
4	the Chief Executive Officer of the Commonwealth Services Delivery Agency	is of information to be used for the purpose of the administration of the social security law (within the meaning of the Social Security Act 1991 ).
5	the Chief Executive Officer of Customs	is for any purpose.
6	the Secretary of the Department dealing with matters relating to the social security law (within the meaning of the Social Security Act 1991 )	is of information to be used for the purpose of the administration of that law.
7	an individual who holds an office of a State or Territory, being an office prescribed for the purposes of this table item	both: (a) relates to alcoholic beverages; and (b) is for the purpose of the individual administering an *arrangement for the rebate, refund or other payment or credit by a State or Territory in respect of alcoholic beverages.

Note:

A defendant bears an evidential burden in relation to the matters in subsection (5): see subsection 13.3(3) of the Criminal Code .

Protection of confidentiality of indirect tax information and documents from courts

355-5(6)
You are not to be required:

(a) to disclose *indirect tax information to a court; or

(b) to produce an *indirect tax document to a court;

unless it is necessary for the purposes of an *indirect tax law.

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History

S 355-5 inserted by No 73 of 2006 , s 3 and Sch 5 item 49, effective 1 July 2006.

Act No 145 of 2010, s 3 and Sch 1 item 3 contains the following transitional provisions, effective 17 December 2010:

3 Transitional - authorised representatives  
(1)
If:

(a) at any time before the commencement of this item, an entity (the covered entity ) had been nominated by another entity (the primary entity ) to act on the primary entity ' s behalf with respect to protected information that relates to the primary entity; and

(b) immediately before the commencement of this item, the nomination was in force;

the covered entity is taken, on and after that commencement, to be an entity covered by subsection 355-25(2) in Schedule 1 to the Taxation Administration Act 1953 .

(2)
To avoid doubt, subitem (1) does not prevent the primary entity from revoking the nomination.

S 355-25(2) amended by No 127 of 2021, s 3 and Sch 3 item 47, by inserting para (h) and (i), applicable in relation to the making of a record or the disclosure of information occurring on or after 1 January 2022, whether the information was acquired before, on or after 1 January 2022.

S 355-25(2) amended by No 21 of 2015, s 3 and Sch 7 item 40, by substituting para (b) and inserting para (ba), applicable in relation to records and disclosures of information made on or after 20 March 2015 (regardless of when the information was acquired). Para (b) formerly read:

(b) the covered entity is a *legal practitioner representing the primary entity in relation to the primary entity ' s *tax affairs; or

S 355-25 inserted by No 145 of 2010, s 3 and Sch 1 item 1, applicable to records and disclosures of information made on or after 17 December 2010 (whenever the information was acquired).