Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010 (145 of 2010)

Schedule 2   Consequential amendments

Part 1   Amendments

Tax Agent Services Act 2009

93   Sections 70-35, 70-40 and 70-45

Repeal the sections, substitute:

70-35 Official information not to be disclosed

Offence - recording or disclosing official information

(1) A person commits an offence if:

(a) the person:

(i) is or has been a *Board member or a member of a *committee; or

(ii) is or has been an APS employee whose services were made available to the Board by the Commissioner; or

(iii) is or has been a person appointed or employed by, or a provider of services for, the Commonwealth; and

(b) the person:

(i) makes a record of information; or

(ii) discloses information to another person (other than the person to whom the information relates or that person's *agent in relation to the information) or to a court or tribunal; and

(c) the information is *official information; and

(d) the information was acquired by the first-mentioned person in the course of, or because of, his or her duties under or in relation to this Act or the regulations.

Penalty: Imprisonment for 2 years.

Consent is not a defence

(2) It is not a defence to a prosecution for an offence against subsection (1) that the entity to whom the information relates has consented to:

(a) the making of the record; or

(b) the disclosure of the information.

Limits on disclosure to courts and tribunals

(3) A person mentioned in paragraph (1)(a) is not required to disclose to a court or tribunal *official information that was acquired by the person in the course of, or because of, his or her duties under or in relation to this Act or the regulations except if it is necessary to do so for the purpose of carrying into effect the provisions of this Act or the regulations.

70-40 Exceptions to the prohibition on disclosure of official information

Disclosure in the performance of duties

(1) Subsection 70-35(1) does not apply if the record or disclosure is made in performing the person's duties under or in relation to this Act or the regulations.

Note: A defendant bears an evidential burden in relation to the matters in subsection (1): see subsection 13.3(3) of the Criminal Code.

Disclosure of publicly available information

(2) Subsection 70-35(1) does not apply if the information was already available to the public (otherwise than as a result of a contravention of subsection 70-35(1) or 70-45(1)).

Note: A defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code.

Disclosures to the Commissioner of Taxation

(3) Subsection 70-35(1) does not apply if the record or disclosure:

(a) is to the Commissioner; and

(b) is for the purpose of:

(i) investigating a *taxation offence; or

(ii) enforcing a law, the contravention of which is a taxation offence; or

(iii) investigating the contravention of, or enforcing a provision of, a *taxation law that imposes a civil penalty; or

(iv) the making, or proposed or possible making, of a *proceeds of crime order relating to a taxation offence.

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

Disclosure in relation to serious offences and proceeds of crime orders

(4) Subsection 70-35(1) does not apply if:

(a) the record is made for, or the disclosure is to, an *authorised law enforcement agency officer; and

(b) the record or disclosure is for the purpose of:

(i) investigating a *serious offence; or

(ii) enforcing a law, the contravention of which is a serious offence; or

(iii) the making, or proposed or possible making, of a *proceeds of crime order.

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

70-45 On-disclosure of official information

Offence - on-disclosure of information

(1) A person commits an offence if:

(a) the person:

(i) makes a record of information; or

(ii) discloses information to another person (other than a person to whom the information relates or the person's *agent in relation to the information) or to a court or tribunal; and

(b) the information was acquired by the first-mentioned person under an exception in section 70-40 or in this section; and

(c) the first-mentioned person did not acquire the information in the course of, or because of, his or her duties under or in relation to this Act or the regulations.

Penalty: Imprisonment for 2 years.

Consent is not a defence

(2) It is not a defence to a prosecution for an offence against subsection (1) that the entity to whom the information relates has consented to:

(a) the making of the record; or

(b) the disclosure of the information.

Exceptions

(3) Subsection (1) does not apply if the information was already available to the public (otherwise than as a result of a contravention of subsection (1) or 70-35(1)).

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

(4) Subsection (1) does not apply if:

(a) the information was originally disclosed under an exception in section 70-40 for a purpose specified in that exception (the original purpose ); and

(b) the information was acquired by the person under this section or an exception in section 70-40; and

(c) the record or disclosure is made by the person for the original purpose, or in connection with the original purpose.

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

(5) Without limiting subsection (4), a record or disclosure is made by the person in connection with the original purpose if the record or disclosure is for purposes of criminal, civil or administrative proceedings (including merits review or judicial review) that are related to the original purpose.

Limit on on-disclosure to courts or tribunals

(6) A person is not to be required to disclose to a court or tribunal information that was acquired by the person under this section, except if it is necessary to do so for the purpose of carrying into effect the provisions of this Act or the regulations.