Mr Murphy asked the Attorney-General, upon notice, on 11 February 2003:

(1) Is he able to say whether, under the Privacy Act, (a) the word “record” includes an individual's taxation return held by the Commissioner of Taxation, (b) the Australian Taxation Office is an “agency”, (c) the Commissioner of Taxation is a “record-keeper” and (d) the Commissioner of Taxation is bound by the Information Privacy Principles (IPP); if so, are there any exemptions.

(2) Does IPP 11 preclude the Commissioner of Taxation from disclosing either (a) the tax return of an individual; or (b) information as to whether an individual has lodged a return for a particular year, without actual access to the information contained in a tax return itself but only information of the fact of lodgment.

(3) Does an act of the Commissioner of Taxation in disclosing information to a peak professional body for potential disciplinary action within that profession against a practitioner member of their association, including the Bar Association of New South Wales, the New South Wales Law Society, the Australian Medical Association, the Royal College of Surgeons and other equivalent professional bodies charged with chartered disciplinary responsibilities who maintain professional standards in their respective professions, constitute a breach of the IPP 11; if so, how.

(4) What is the procedure, if any, by which a professional body charged with disciplinary and professional standard responsibilities such as the New South Wales Bar Association and the New South Wales Law Society, may licitly obtain information critical to their disciplinary powers, including access to verifiable sources of taxation records of their members.

Mr Williams (Attorney-General) —The answer to the honourable member's question is as follows:

(1) (a) An individual's taxation return held by the Commissioner of Taxation is a “record” for the purposes of the Privacy Act 1988 (Privacy Act).

(b) The Australian Taxation Office (ATO) is an agency for the purposes of the Privacy Act.

(c) The Commissioner of Taxation is a record keeper for the purposes of the Privacy Act.

(d) The Commissioner of Taxation is bound by the Information Privacy Principles of the Privacy Act subject to the exemptions provided under the Privacy Act.

(2) The disclosure of: (a) the tax return of an individual; or (b) information as to whether an individual has lodged a tax return, both involve the disclosure of personal information within the meaning of the Privacy Act. IPP 11 would therefore preclude the disclosure of a person's tax return or information about whether the person had lodged a tax return, unless one of the exceptions listed in IPP 11 applies. The exceptions apply where: (a) the person to whom the information relates is aware or reasonably likely to be aware that this information is usually passed to that person, body or agency; or (b) the person to whom the information relates consents to the disclosure; or (c) the record keeper believes that the disclosure is necessary to prevent or lessen a serious and imminent threat to life or health; or (d) the disclosure is authorised by law; or (e) the disclosure is reasonably necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty or for the protection of the public revenue.

(3) The disclosure of personal information to a professional body for the purpose of conducting disciplinary proceedings would breach IPP 11 unless one of the exceptions listed in IPP 11 applies.

(4) IPP 11 is not breached if the disclosure of personal information is required or authorised by law within the meaning of IPP 11(1)(d). Disclosure is authorised by law if legislation regulating disciplinary proceedings by a professional association authorises the association to compel the disclosure of that information.

IPP 11 is only a minimum standard regulating disclosure of personal information. The Commissioner of Taxation is also subject to special secrecy provisions, such as section 16 of the Income Tax Assessment Act 1936, which places further limits on the power of officers of the Australian Taxation Office, including delegates of the Commissioner, to disclose this information. Exceptions in secrecy provisions permit disclosures for specified purposes. The terms of each secrecy provision must be considered to determine whether the exceptions to the provision would permit the disclosure of personal information to a professional association for the purpose of disciplinary proceedings.