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Friday, 9 June 1989
Page: 3755


Senator TATE (Minister for Justice)(9.26) —Senator Stone is engaged in consultation, so I will just mention one or two matters additional to those which I exhaustively went through last night. Was Senator Macklin pointing to section 27 (1) (b) or 28 (1) (b) in the Privacy Act?


Senator Macklin —Section 27 (1) (b).


Senator TATE —That provides:

When requested to do so by a Minister-

the Privacy Commissioner has to-

examine a proposed enactment that would require or authorise acts or practices of an agency that might, in the absence of the enactment, be interferences with the privacy of individuals.

I am getting some information on the actual application of that in this instance.


Senator Macklin —It is whether the protocol will be put into place prior to the operation of this.


Senator TATE —We will see what we can do about that. In general, Senator Macklin is correct in suggesting that where there is a strength or an advantage in the Government's proposal it lies in the fact that, quite clearly, we are depending on a cooperative attitude being fostered between the Commissioner of Taxation and the law enforcement agencies. Indeed, it will be the case that when a law enforcement agency is confronted with a particular serious type of criminal activity or, even more clearly, is proceeding upon a proceeds of crime track, it may approach the Commissioner of Taxation and make a request or seek to know whether there is anything held within the Australian Taxation Office which might be of intelligence use to the law enforcement agency. So that is understood to be part of the cooperative, more administrative scheme, as opposed to the court based scheme proposed by the Opposition.

As to the misgivings that have arisen in the community concerning the disclosure of taxation information by the Commissioner of Taxation, his officers or, at least, the Taxation Office-inadvertently, I am quite sure, but, nevertheless, negligently and in a way that has harmed the reputation of the Tax Office in regard to the certainty and sureness that information it holds can be maintained confidentially-it is a fact that discussions took place between the Privacy Commissioner and the Commissioner of Taxation very recently. The press release put out by the Privacy Commissioner advising of new Tax Office controls says:

A Privacy Ombudsman will be appointed within the Australian Tax Office to ensure adherence to privacy standards, Federal Privacy Commissioner, Mr Kevin O'Connor, was advised today. The Taxation Commissioner, Mr Trevor Boucher, advised Mr O'Connor of plans to create the new position at a meeting in Melbourne today.

It goes on with a review of the situation which had developed with, perhaps, the lack of adequate controls over the provision of information from the Tax Office to certain persons. About three paragraphs from the bottom of the first page, the press release says:

The Privacy Ombudsman to be appointed shortly will have special responsibility for ensuring adherence to privacy standards within the Tax Office.

I will try and get the attachment to that press release for Senator Macklin concerning the outline of the advertisement that is to be placed or has been placed in the Commonwealth of Australia Gazette relating to that particular office within the Tax Office. The lapses in confidentiality need to be overcome. I believe that the appointment of a Privacy Ombudsman within the Tax Office will assist. It has to be constantly emphasised that as far as this Parliament is concerned such a useful administrative arrangement is one that ought to be in place and perhaps ought to have been in place. Nevertheless from the point of view of this Parliament it is the role of the Privacy Commissioner established by statute under legislation passed late last year which is important. As I pointed out, every time the Commissioner of Taxation makes available to a law enforcement agency material concerning Australian taxpayers in a way which would otherwise be an interference with privacy but is justified and would be justified under this legislation then a notation to that effect must appear on the file.

The Privacy Commissioner as required by this Parliament will have access to those files, be able to audit the notated files and will be able, if necessary, to report to the Parliament on any abuse that he discovers in relation to the passage of such legislation.


Senator Crichton-Browne —Then what?


Senator TATE —Then the Parliament, being fully informed of the abuse, will be able to take action. As I also pointed out last night, if indeed the Commissioner of Taxation releases information that does not fall within the objectives set by this Parliament, namely, information to do with a serious offence or with respect to proceedings under the proceeds of crime legislation-that is the legislation that confiscates the profits of crime of those convicted of serious offences-the Taxation Commissioner is guilty of a breach of section 16 of the tax Act and will be subjected to very severe penalties. Indeed a mandamus can be sought from the High Court of Australia in order to ensure that the Taxation Commissioner does his duty and keeps within the statutory bounds. What I am saying is that there are procedures available--


Senator Michael Baume —At great cost.


Senator TATE —No, I was putting them as alternatives. The fact is that this Parliament late last year, recognising that a court based approach in this area would be very costly, cumbersome and difficult for people to take advantage of, provided that we really should rely on the Privacy Commissioner and the cheaper administrative arrangements, surveillance and supervision that he can undertake as the preferred method of ensuring adherence to the will of the Parliament in relation to the maintenance of privacy and confidentiality of information given under compulsion, in this case to the Tax Office, as required by law. It is that notation of files and the supervisory role of the Privacy Commissioner which will provide the sort of protection that is required. It will be bolstered somewhat by the appointment of a Privacy Commissioner within the Tax Office. As I said, that is perhaps to protect the standing of the Tax Office which has declined somewhat in the public mind as a result of some recent instances. But as far as the Parliament is concerned it is the reliance on the Privacy Commissioner which is paramount.