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Friday, 16 June 1989
Page: 4288


Senator STONE (Leader of the National Party of Australia)(3.22) —If we have disposed of that particular issue for this particular session of the Parliament, perhaps we may return to the four Opposition amendments. I listened carefully to what Senate Tate said today in respect of the matter which he reported to us and I have read the letter from Mr O'Connor. I thank the Minister for providing me with a copy at an earlier stage. I want to say a few things about the situation we appear to have reached on these amendments. The first thing is that, while obviously I accept everything that Mr O'Connor says in his letter, I do not find it as persuasive in respect of the Opposition amendments as the Minister appears to do. I note, for example, that Mr O'Connor very precisely says that the proposed amendments-that is, the Government's amendments in the Bill:

. . . 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 prosecutions for tax related offences.

Those are fairly large exceptions, particularly the second of them. I somewhat raised my eyebrows at another passage in Mr O'Connor's letter where he said:

While any statutory exception allowing disclosures of this kind is at odds with the strict meaning of privacy, . . .

There is certainly no doubt about that. He went on:

I must observe that Parliament . . . has allowed exceptions to the strict principle for law enforcement and revenue reasons.

That is perfectly true, as we are all well aware. The position of the Opposition on this matter is not in any way to question that such an exception should have been made in the past or, indeed, that some further exceptions should now be made in that respect. The thrust of the Opposition's amendments is not to question that basic point but rather to lay down some mechanics for the manner in which that exception is given effect. As will be clear from reading our amendments, their principal thrust is to change, so to speak, the onus of action from the Commissioner of Taxation, in respect of whom this Bill places the onus, to provide information of this kind to the law enforcement authorities when, in his judgment, it is appropriate to do so to an onus where it is open to the law enforcement agencies to seek information where, in their opinion, they have grounds for doing so and where, in the opinion of a Federal Court of Australia judge, those grounds are sufficient to form the basis of an application to the Commissioner.

Rightly or wrongly, it is the view of the Opposition that we are dealing here with a question of principle. I want also to say in relation to that that I am somewhat concerned about the position into which, as far as I can see, the Australian Taxation Office and the Commissioner of Taxation are now getting themselves-or, I should say, being put by the government of the day.

In a moment I will come to the example the Minister gave of a court case somewhere in Sydney. I want to say something about that too. I think there is a situation where, before very long, we will have the Commissioner of Taxation or the Taxation Office being described as the office of pimps, the office of informers or something of that kind. I do not make those comments lightly or frivolously. There is a very serious question at issue here.

The Commissioner of Taxation and his officers have, since the Taxation Office was first set up, I believe-notwithstanding some criticisms they have naturally received from time to time; tax gatherers are never popular-generally received a good deal of respect from the Australian tax paying public. They have earned that respect, for the most part, as I say, with very few exceptions, by maintaining a proper sense of decorum and propriety in their dealings with the public. I can certainly remember many occasions in my previous capacity when, in discussions about this kind of matter with the present Commissioner's predecessors and their officers, the point has been very forcefully argued from the point of view of the Australian Taxation Office that it is essential to the prosecution of its normal day to day work that its officers should not be seen to form a body which passed onto other possibly quite properly interested agencies information of a taxation confidentiality kind coming into their possession.

It has always been a question as to how to weigh up the pros and cons of that. I think in recent years the balance of that weighing process has swung towards saying that it is appropriate under certain circumstances for the Commissioner to make information available in certain specified circumstances because of the strong and increasing concern in the Australian public, a concern which the Opposition fully shares, about the growth of organised crime in this country. There is a feeling that we need more weapons against that and that it is wrong of us to forgo a possible weapon through the use of information coming into the possession of the Commissioner of Taxation for other reasons. I understand all that but at some point we have to consider drawing a line. The Opposition is not at all satisfied that the Government has drawn that line in the proper place. On the contrary, our position is that we believe that the Government is now stepping across that line and, as I say, is in the process of turning the Taxation Office into an office of informers. I think that will redound, not to the discredit so much of the Taxation Office or its staff-although that is probably the case as well-but, more importantly, to the lessening of its effectiveness as a revenue collection agency, which, after all, is its primary purpose. I have not sought to discover what the view is within the Taxation Office itself of the likely effects of the passage of this provision in the Bill before us but I would be somewhat surprised if there were not serious misgivings in the Australian Taxation Office on that score. I leave that matter there.

The Minister quoted a particular case in support of the view that he put to us that we should not object to the provisions of the Bill to which we are objecting. There was a case of a drug dealer being convicted in a Sydney magistrates court for taxation offences. This led to the information becoming publicly available that he had obtained his ill-gotten gains through drug dealing and that this information, which has been in the possession of the Commissioner, had not previously been made known to the police. As the Minister quite rightly observed this had not previously been made known to the law enforcement authorities, to the police, and that only for the court case they would never had known about it. I understand the Minister's example. Of course, one would be thoroughly approving of the action taken in that case by the police force concerned to catch up with the gentleman, if that is the right word, in question. I have to say-I am sure that the Minister would agree with this-that hard cases make bad law. The Minister can come in here, I am sure, and quote a number of such cases where had this provision that the Bill would now insert in the law been in force we would undoubtedly have caught up with a number of people who deserved to be caught up with. I can assure the Minister, through you Mr Temporary Chairman, there would not be any dissent from that on this side of the chamber.

What the Opposition is saying is that that is not a costless process in terms of our civil liberties and in terms of privacy considerations within the community as a whole. While, of course, we are totally supportive of measures which set out to strengthen the hands of the law enforcement authorities in the ceaseless battle that they wage against criminals of one kind or another, we cannot be forgetful of or oblivious to the potential costs of doing so. We have said in these amendments that, in this case, the Government has gone too far. We are not seeking to deny the law enforcement authorities more capacity to attain access to information of this kind. But we have, so to speak, put the onus of action on the law enforcement authorities rather than on the Commissioner. We have interposed a judicial process approach supported by written application-by affidavit et cetera-to a Federal judge in order to buttress that changing of the onus of action.

I have to say that so far at any rate nothing said by the Minister convinces me that the Opposition has been wrong in this regard. I say to the Minister that, while I appreciate the action he has taken in getting this letter from the Privacy Commissioner, I do not find that letter persuasive either, and the Opposition wishes to persist with its amendments.