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Wednesday, 26 May 1993
Page: 1357


Senator LEES (Deputy Leader of the Australian Democrats) (5.04 p.m.) —I raise another matter on the Bill in its entirety—in particular, clause 15. This relates to proposals to allow the matching of immigration data and tax data. The Australian Democrats put a series of questions on these matters on notice, and we thank the Government for its speedy reply. I seek leave to incorporate the questions and answers in Hansard.

  Leave granted.

  The document read as follows

ANSWERS TO SENATOR KERNOT'S QUESTIONS ON 21 MAY 1993 TO THE MINISTER REPRESENTING THE TREASURER ON TAXATION LAWS AMENDMENT Bill No 2 1993

CLAUSE 15 OF THE BILL AND PROPOSED NEW PARAGRAPH 16(4)(HD)

Q1:The paragraph only allows the divulging of information to the Secretary of the Department of Immigration and Ethnic Affairs [DIEA] "for the purpose of assisting in locating persons who are unlawfully in Australia". Does this mean that only information concerning those who are unlawfully in Australia can be divulged?

A1:Yes. The purpose in proposing an information sharing arrangement between ATO and DIEA is to match data on illegal entrants or overstayers with ATO records to obtain the best available residential and workplace addresses of illegal entrants and in this way facilitate their location. The ATO will only divulge information relating to residential and workplace addresses.

Q2:Why doesn't the legislation limit the information to that of illegal entrants or overstayers?

A2:The legislation does not specifically limit the information to that pertaining to illegal entrants or overstayers as the terminology "persons unlawfully in Australia" covers the term "illegal entrants". The term "illegal entrants" currently includes, under section 14 of the Migration Act 1958, any non-citizen who enters or remains in Australia without authority or who overstays any authority. A new term "unlawful non-citizen" will be used from 1 November 1993 upon commencement of the Migration Reform Act 1992 to describe all non-citizens unlawfully in Australia.

Q3:Is it not a fact that the wording is so wide that the personal information of people other than the illegal entrant or overstayer could be supplied under the provision?

A3:See A1 and A2. The wording of the paragraph is confined to "persons who are unlawfully in Australia".

Q4:Will the Government amend the legislation to ensure that only information relating to the illegal entrant under investigation can be divulged?

A4:Based on A3, the need to amend the legislation is not warranted.

Q5:The Minister for Immigration and Ethnic Affairs Media Release of 17 December 1992 specifically states "DILGEA will not have access to tax file numbers (TFNs) under these arrangements." Does the legislation ensure that the officers of DILGEA cannot have access to TFNs.

Q6:Why doesn't the legislation specifically prohibit the provision of TFNs?

Q7:Will the Government amend the legislation to ensure that TFNs cannot be provided?

A5-7:There is no need to amend clause 15 of the Bill to specifically prohibit DIEA officers having access to TFNs. The reason being is that sections 8WA and 8WB of the Taxation Administration Act 1953 prohibit the recording, requesting, disclosure and use of a person's TFN in unauthorised circumstances. DIEA officers are not authorised to request, receive or use TFNs.

For example, quotation of TFNs may be a precondition to receiving any Commonwealth income support payment. Such a payment would include payments by the Departments of Social Security; Veterans Affairs; Employment, Education and Training. Use of TFNs for that purpose are specifically authorised by sections 8WA and 8WB.

Q8:How does an illegal entrant to Australia obtain a TFN? Does the Tax Office check that the applicant is entitled to work in Australia? lf yes, what is the procedure? If not, why not?

A8:An illegal entrant applies for a TFN in the same way as other taxpayers using a TFN application/enquiry form. Subsection 202BA(2) of the Assessment Act provides that the Commissioner may refuse the application if he is not satisfied as to the applicants true identity. There is no legislative provision to allow the ATO to check whether the applicant is entitled to work in Australia.

Further, the Commissioner is unable to refuse to issue a TFN on grounds of nationality, residency or work status. Where an overseas passport is given as one of the proof of identity documents, the currency of the visa is checked. If the visa has expired, the passport is not accepted as a valid proof of identity document for TFN application purposes.

Q9:Why doesn't clause 15 also allow the provision of information in respect of contravention of visa requirements?

A9:At this stage, the Government considers that a priority in establishing an information sharing arrangement between the ATO and DIEA is to permit information sharing for the purpose of identifying and locating persons unlawfully in Australia. Any proposal to extend the arrangement to include those persons working in breach of their visa conditions will be examined in the light of the experience with this arrangement.

As explained in A8, overseas passports with expired visas are not accepted as valid proof of identity. The Tax Office does not take details of expired visas or of persons tendering such documents.

Q10:Is it the Government's intention to amend the law in the future so as to allow the provision of information to the Secretary of DILGEA concerning contravention of visa requirements?

A10:Not at this stage. See also A9 above.

Q11:Could the Minister please give an indicative statement of how this provision would be used in practice? That is, what information would be provided by DILGEA to the Tax Office, what would the Tax Office do with the information, what enquiries and procedures would the Tax Office then undertake, what information would then be provided to DILGEA by the Tax Office?

A11:The provision, enabling exchange of information between the Commissioner and DIEA, is expected to work in practice as follows:

  DIEA information in respect of overstayers without an application or review pending (ie; those persons who have already breached the Immigration Act) will be supplied to the Tax Office; and

  The information to be returned by the Tax Office to DIEA will be limited to residential and employment addresses of those overstayers.

As people can see from these answers, the question of access to tax file numbers is specifically dealt with at length. It will not be lawful for the Taxation Office to provide a person's tax file number under this provision. The answers specifically state that the information to be provided by the Taxation Office is limited to the residential and employment addresses of the overstayers. Considering that these people are already in breach of the law, we believe that this is not an unreasonable proposal.