Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Friday, 16 June 1989
Page: 4284


Senator TATE (Minister for Justice)(3.10) —At the deferral of consideration of the Taxation Laws Amendment Bill (No. 3) 1989 by this chamber we were primarily concerned with those clauses which confer on the Commissioner of Taxation a discretion to make available to certain specified law enforcement agencies information which may be useful to those agencies, both with regard to investigation of a serious offence and in regard to following up what is known as the proceeds of crime, that is, the profits which unscrupulous people make from their criminal activities; such information not to be voluntarily or compulsorily disclosed in court, except in relation to post-conviction proceedings relating to the proceeds of crime, but nevertheless, material which could be of use to those law enforcement agencies in their investigations.

At the request of Senator Macklin and Senator Stone I undertook to write to the Privacy Commissioner, Mr Kevin O'Connor, to obtain from him an assessment of these provisions in light of the privacy principles which this chamber thought were important when it passed the Privacy Act late last year. Mr O'Connor has responded and I circulated the response to both Senator Macklin and Senator Stone a couple of days ago. Mr O'Connor indicates that the proposed amendments meet the requirements of the information privacy principles. I seek leave to incorporate Mr O'Connor's response in Hansard.

Leave granted.

The document read as follows-

Human Rights Australia

Privacy Commissioner

Senator the Hon. Michael C. Tate

Minister for Justice

Parliament House

CANBERRA ACT 2600

My dear Minister

I refer to your letter of 9 June 1989 requesting my advice under section 27 (1) (b) of the Privacy Act, in relation to proposed amendments on access to taxation information forming part of the Taxation Laws Amendment Bill (No. 3) 1989 currently before the Senate.

The Privacy Act sets down standards governing the disclosure of information in Information Privacy Principle 11 set out in Section 14.

That Principle acknowledges that it is permissible in certain exceptional situations for a government agency to disclose personal information for a purpose other than the one for which it was collected. The two exceptions of relevance to the present amendments are exceptions (d) and (e) of IPP 11.1, i.e.,

``(d) the disclosure is required or authorised by or under law; or

(e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, of for the protection of the public revenue.''

Disclosures for law enforcement or public revenue reasons must be logged. IPP 11.2 states:

``Where personal information is disclosed for the purposes of enforcement of the criminal law or a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record-keeper shall include in the record containing that information a note of the disclosure.''

Moreover the recipient of personal information disclosed under one of the exceptions must not make any further inconsistent use of that information. IPP 11.3 states:

``A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency.''

In my view the proposed amendments (see clauses 26 and 28 of the Bill) meet the requirements of the Information Privacy Principles. They, in effect, require logging or notation of any disclosure by the Commissioner of Taxation, who is required to report to Parliament. They restrict use of the information to criminal intelligence purposes with two exceptions: the information may be made available to the court after conviction in proceeds of crime cases and in prosecutions for tax related offences. Unlike a number of disclosure provisions currently found in federal legislation, the amendments define clearly the category of information that may be disclosed and identify who may be a recipient. Furthermore it is an offence for a law enforcement agency to misuse information (proposed Section 3e (7)). This is an improvement on the position under IPP 11.3 which contains no sanction for misuse of information by a non-Federal recipient.

While any statutory exception allowing disclosures of this kind is at odds with the strict meaning of privacy, I must observe that Parliament, in enacting the Privacy Act and frequently at other times in bringing forward legislation, has allowed exceptions to the strict principle for law enforcement and revenue reasons. I have indicated in a number of public statements since taking office that I will, over time, be reviewing all Commonwealth statutory personal information disclosure provisions in particular the terms of the authority they confer on Ministers or administrative officials.

As I have indicated, I consider that the present proposed amendments conform to the Information Privacy Principles. In addition, I should note that I have extensive powers to monitor and audit agency compliance with the Act. I intend giving priority in exercising my audit responsibilities to certain areas. Those areas include the use by agencies of statutory release discretions especially where exercised for law enforcement purposes. In auditing those releases, I will give special emphasis to releases of particularly sensitive data such as would be likely to occur in the present case. I will be reporting on the nature and extent of those releases in my annual reports to Parliament and, if necessary, drawing attention to any practices which I regard as unsatisfactory.

I am available to discuss this advice with you or other members of the Senate, as desired.

Yours sincerely

KEVIN O'CONNOR

Privacy Commissioner

13 June 1989


Senator TATE —The important parts in that response dealt with his view that the proposed amendments-clauses 26 to 28 of the Bill-meet the requirements of the information privacy principles. He emphasises restriction of the use to intelligence gathering functions of the law enforcement agencies. He notes that the legislation defines clearly the category of information that may be disclosed and identifies who may be a recipient. He notes that it is an offence for a law enforcement agency to misuse information. He also notes that this is an improvement on the position under the information privacy principles which contain no sanction for misuse of information by a non-Federal recipient. It is an advance on the information privacy principles which commended themselves to this chamber late last year.

In addition Mr O'Connor notes, as I explained to the Senate, he has extensive powers to monitor and audit agency compliance with the Act. He emphasises that he intends to give priority in exercising those audit responsibilities to areas including the use by agencies of statutory release discretions especially when exercised for law enforcement purposes. He refers to this provision as allowing the disclosure of particularly sensitive information. He will be taking special note and using the notation provisions to ensure that his audit is comprehensive in order to enable him to report to the Parliament and, if necessary, to draw the Parliament's attention to any practice he regards as unsatisfactory.

On the same day as I received that advice from Mr Kevin O'Connor, I received from the office of the Commissioner of the Australian Federal Police (AFP), because that office had been noting the way in which the debate had been developing, an interesting brief relating to a recent case in Sydney which highlighted the need for police access to taxation information relating to illegal activities. On Tuesday 6 June, the Australian Federal Police was made aware by a reporter from the Manly Daily that a Mr Ferguson had pleaded guilty in North Sydney court that day to understating his taxable income. Mr Ferguson also admitted that the money in question had been derived from the importation of hashish into Australia. The Australian Taxation Office (ATO) had not informed the AFP of this case. When the Assistant Commissioner of the AFP's eastern region contacted the Deputy Commissioner of Taxation about the matter he was informed-quite properly-that the ATO could not pass information to the AFP because of the secrecy provisions of the legislation under which it works. The AFP, which, nevertheless, had been alerted by the Manly Daily reporter, located Ferguson-the person concerned-on Saturday 10 June as he was preparing to fly to India. He was charged with importation of hashish under the Customs Act. There are further proceedings so I will not elaborate further.

This is a good instance of a case where quite clearly the Commissioner of Taxation had information available from interviews of a person who was understating his taxable income. The ATO had admissions from that person, apparently, that the non-disclosed income had been derived, at least in part, from drug dealing but the Commissioner of Taxation was prevented from passing that information to the AFP, which, by luck, managed to locate the person concerned as he was preparing to fly to India. That instance indicates how useful, if carefully monitored by the Privacy Commissioner, reported upon by this Parliament, the exercise of that discretion in the hands of the Taxation Commissioner could be.


Senator Crichton-Browne —It does not necessarily make it right.


Senator TATE —No, it does not. That is why I take the point that was made last week that it was correct to get an assessment from the Privacy Commissioner. It is important that his undertakings to monitor the notated records when this information is passed be adhered to. This Parliament will take a very keen interest in his report on the operation of these provisions.

I commend these clauses to the Committee. I do not know whether it suits the convenience of the Committee to deal with another matter which was brought up in the debate. That matter deals with the status of the Australian- Ireland Fund, which led to a heated argument-as only something to do with Australia and Ireland could do. This fund was admitted to the gift provisions on the merits of its objectives. The fund exists to promote peace, culture and charity-a formidable task-in Ireland, North and South. The fund's objectives are achieved through the provision of specific grants to help the genuinely needy. I refer to a letter from Allen, Allen & Hemsley, solicitors and notaries, who made the application on 18 November 1987, which indicates the purposes of the fund.


Senator Crichton-Browne —For whom are they acting?


Senator TATE —For the Australian- Ireland Fund. In part that letter says:

Neither the Fund nor the Trustee will be associated with any political party or group in Ireland or Northern Ireland. Additionally, the administration of the Fund will be non-sectarian. It is intended to use donations to the Fund to fund programs which will foster peace and harmony in and between these countries and improve the general living conditions, welfare and quality of life of the people living therein as detailed in the proposed Declaration of Trust.

I have an extract from the trust deed setting out the objectives of the Australian-Ireland Fund. I seek leave to incorporate in Hansard the letter from Allen, Allen & Hemsley and the extract from the trust deed.

Leave granted.

The documents read as follows-

ALLEN ALLEN & HEMSLEY

Solicitors & Notaries

MLC Centre

19-29 Martin Place

Sydney

NSW 2000

Telephone (02) 229 8765

Our Reference: TWM.383551.LEP

Your Reference:

Writer's direct number: (02) 229 8743

18 November 1987

The Honourable Paul Keating,

Treasurer,

Commonwealth of Australia,

Canberra ACT 2600

Dear Sir,

THE AUSTRALIAN-IRELAND FUND

We act for The Australian Ireland Fund a trust fund devoted to charitable purposes which benefit the communities of Ireland and Northern Ireland. A copy of the proposed Declaration of Trust whereby the Trustee, the Australian Ireland Fund Limited will hold the Fund for the charitable purposes set out in Clause 1 (1) (e) of the Declaration is enclosed together with a copy of the proposed Rules of the Fund. We understand that this Declaration and the Rules will be executed by the Trustee as soon as the appropriate resolution has been passed by the Company.

On behalf of our client, we wish to submit that Section 78 (a) (1) of the Income Tax Act 1936, as amended (the ``Tax Act'') be amended by adding to the list of funds, authorities and institutions therein appearing, the name of The Australian Ireland Fund.

Neither the Fund nor the Trustee will be associated with any political party or group in Ireland or Northern Ireland. Additionally, the administration of the Fund will be non-sectarian. It is intended to use donations to the Fund to fund programmes which will foster peace and harmony in and between these countries and improve the general living conditions, welfare and quality of life of the people living therein as detailed in the proposed Declaration of Trust.

It is envisaged that the Fund will appeal to a large section of the Australian public, particularly those of Irish background. It is the intention that the public will actively canvass for contributions to the Fund. Obviously any such appeal for donations will be greatly enhanced if donations to the Fund are tax deductable.

The founders of the Australian Ireland Fund in Australia, in addition to Mr M. A. McGrath, and his wife include Charles P. Curran A.O. of Sydney the Chairman of St Vincents Hospital, Sydney and amongst whose many directorships are included the Royal New South Wales Institute for Deaf & Blind Children, Peter M. Cosgrove of Sydney, Company Director, prominent in advertising and media circles, and Patrick J. Lynam of Sydney, Merchant Banker. Additionally, Mrs Margaret Whitlam, the Earl of Portarlington, Ambassador James Sharkey and Sir Sidney Nolan have agreed to be directors of the Fund. It is anticipated that some of these persons will be directors of the company acting as trustee of the Fund (viz., The Australian Ireland Fund Limited) (a company limited by guarantee) and/or Governors of the Fund as provided in the Rules. The Fund will therefore be controlled by persons of standing in the community.

As you will appreciate because the Fund is nascent public contributions have not yet been solicited. The first function on behalf of the Fund will be held on 1 December 1987 at which time donations will be solicited. Accordingly it is respectfully submitted that the requested amendment to the Tax Act be made retroactive to today's date, being the date of incorporation of the Trustee.

A copy of the Memorandum and Articles of Association of The Australian Ireland Fund Limited is also enclosed for your information.

Please contact our Mr T. W. Magney or Ms Lynn Phillips if any further information is required.

We look forward to receiving your early reply.

Yours faithfully,

Allen Allen & Hemsley

Encls.

cc: Australian Taxation Office, Policy and Legislation Group, Canberra A.C.T. 2600.

LEP32569:T:18.11.87

OBJECTIVES OF AUSTRALIAN-IRELAND FUND-EXTRACT FROM TRUST DEED

(e) `Trust Purposes'' means the initiation, establishment, support, encouragement and expansion of Programmes for any one or more of the following purposes:

(i) the promotion of peace, culture and charity in the Community;

(ii) preserving Irish culture in the Com- munity;

(iii) the relief of poverty in the Community;

(iv) the support and encouragement of members of the Community of different religions and backgrounds to join together in common activities of work, education, religion, sport and recreation (or any of such activities);

(v) the advancement of education in the Community;

(vi) the identification of and overcoming of problems arising from chronic unemployment, underemployment and employment discrimination in the Community including vocational and on-the-job training and other employment counselling and assistance;

(vii) promoting and assisting all or any of sport, recreation and development of the young in the Community;

(viii) leadership training and personal development of members of the Community;

(ix) the preservation of historical and cultural buildings and other landmarks in the Community;

(x) the preservation of wildlife in the Community;

(xi) encouragement and development of the visual arts, music, drama, dance and the like (or any one or more thereof) particularly of a traditional or folk character in the Community;

(xii) the encouragement and development of traditional skills, handicrafts and the like amongst members of the Community;

(xiii) caring for and providing for the needs of children of the Community especially those that are homeless, autistic, mentally or physically handicapped or abused;

(xiv) improving the health and welfare of the members of the Community generally (including the support of hospital and other health care facilities and medical research);

(xv) care of the elderly or infirm members of the Community;

(xvi) agricultural training in the Community;

(xvii) any other purpose or purposes that may be beneficial to the Community;

PROVIDED THAT the each of the above purposes is to be read and construed as limited to such objects falling within that description as are Charitable;


Senator TATE —I think that answers the queries that were raised relating to the Australian-Ireland Fund.


The TEMPORARY CHAIRMAN (Senator Peter Baume) —It may suit the convenience of the Committee at this stage to return to the four postponed amendments, in which case the question is that the amendments moved by Senator Stone be agreed to.