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Inspector-General of Taxation Bill 2003

Part 2 Establishment and functions of the Inspector-General of Taxation

Division 1 Establishment of the Inspector-General of Taxation

6   Inspector-General of Taxation

                   There is to be an Inspector-General of Taxation.



 

Division 2 Functions of the Inspector-General

7   Functions of the Inspector-General

             (1)  The functions of the Inspector-General are:

                     (a)  to review:

                              (i)  systems established by the Australian Taxation Office to administer the tax laws, including systems for dealing or communicating with the public generally, or with particular people or organisations, in relation to the administration of the tax laws; and

                             (ii)  systems established by tax laws, but only to the extent that the systems deal with administrative matters; and

                     (b)  to report on those reviews, setting out:

                              (i)  the subject and outcome of the review; and

                             (ii)  any recommendations that the Inspector-General thinks appropriate concerning how the system reviewed could be improved.

             (2)  The reference in subparagraph (1)(a)(ii) to administrative matters includes, for example, the process for assessing, collecting, paying or recovering amounts under a tax law, or the enforcement of a tax law. However, it does not include rules imposing or creating an obligation to pay an amount under a tax law, or rules dealing with the quantification of such an amount.

8   When a review may be conducted

             (1)  The Inspector-General may conduct a review on his or her own initiative.

Note:          For example, the Inspector-General may conduct a review on a matter that has been drawn to his or her attention by taxpayers, tax professionals or the Commonwealth Ombudsman.

             (2)  The Inspector-General may be directed, in writing, by the Minister to conduct a review. On receipt of a direction, the Inspector-General must include the review in his or her work program under section 9.

Note:          Under section 9, the Inspector-General has discretion in deciding how to include the review in the work program (including, for example, what priority to give the review).

             (3)  The Inspector-General may be requested to conduct a review by:

                     (a)  the Minister; or

                     (b)  the Commissioner of Taxation; or

                     (c)  a resolution of either House, or of both Houses, of the Parliament; or

                     (d)  a resolution of a Committee of either House, or of both Houses, of the Parliament.

However, the Inspector-General is not required to comply with the request.

9   Setting the Inspector-General’s work program

             (1)  The Inspector-General has discretion in setting his or her work program (subject to subsection 8(2) and subsection (2) of this section).

             (2)  The Inspector-General must consult the Commonwealth Ombudsman and the Commonwealth Auditor-General, at least once a year, to assist the Inspector-General in setting his or her work program.

10   Reporting on reviews

                   After completing a review, the Inspector-General must make a written report to the Minister setting out:

                     (a)  the subject and outcome of the review; and

                     (b)  any recommendations that the Inspector-General thinks appropriate concerning how the system reviewed could be improved.

Note:          For limitations on what may be included in reports under this section, see the following provisions:

(a)           section 22 (information that would be prejudicial to the public interest);

(b)           section 23 (taxpayer information);

(c)           section 24 (identifying tax officials);

(d)           section 25 (criticising the ATO or tax officials);

(e)           section 26 (confidential submissions);

(f)            section 27 (legal professional privilege).

11   Public release of reports

             (1)  The Minister must cause a copy of each report under section 10 to be tabled in each House of the Parliament, or to be otherwise made publicly available:

                     (a)  before the general publication deadline; or

                     (b)  if the Inspector-General recommends that the tabling or public release of the report be delayed for a specified period—before the extended publication deadline.

             (2)  For the purposes of subsection (1):

                     (a)  the general publication deadline is the end of 25 sitting days of each House of the Parliament, calculated starting from the day after the day on which the Minister receives the report; and

                     (b)  the extended publication deadline is the end of 25 sitting days of each House of the Parliament, calculated starting from the day after the day on which the period referred to in paragraph (1)(b) ends.

Note:          If, because of differences in the days on which the two Houses sit, the 25 sitting day period for the two Houses ends on different days, the relevant deadline is the end of the later of those days.



 

Division 3 Obtaining information, documents etc. for the purposes of reviews

12   Purposes for which powers may be exercised

Actual conduct of a review

             (1)  This Division confers powers that may be exercised for the purposes of conducting a review.

Deciding whether to conduct a review

             (2)  The powers conferred by this Division also apply for the purposes of deciding whether a review should be conducted. For this purpose:

                     (a)  a reference to conducting a review is taken to be a reference to making such a decision; and

                     (b)  a reference to submissions, information, documents or questions relevant to a review is taken to be a reference to submissions, information, documents or questions relevant to making such a decision; and

                     (c)  documents produced under section 14 or 15 for the purpose of making such a decision may, if the decision is that a review is to be conducted, continue to be kept under section 19 for as long as is necessary for the purposes of conducting the review.

13   Inspector-General may invite submissions

Inviting submissions

             (1)  For the purposes of conducting a review, the Inspector-General may invite members of the public generally, or particular people or organisations, to make submissions relevant to the review.

Note 1:       Section 17 protects a person making a submission in good faith from liability to damages.

Note 2:       Section 18 provides that making a submission does not result in a loss of legal professional privilege.

Process for inviting or making submissions

             (2)  The Inspector-General has discretion in deciding matters connected with the process for inviting or making submissions, including:

                     (a)  how to communicate the invitation; and

                     (b)  how submissions may be made.

Note:          For example, the Inspector-General may:

(a)           advertise in the press or other media seeking written submissions from the public; or

(b)           contact particular people or organisations inviting them to attend a meeting at which they may make oral submissions.

Submissions may be made publicly available

             (3)  The Inspector-General may, in any way he or she thinks appropriate, make any submission, or a written record (which may be a summary) of any oral submission, available to the public generally, or to particular people or organisations.

Note:          For restrictions on the power given by this subsection, see the following provisions:

(a)           section 22 (information that would be prejudicial to the public interest);

(b)           section 23 (taxpayer information);

(c)           section 24 (identifying tax officials);

(d)           section 26 (confidential submissions).

14   Inspector-General may request Commissioner of Taxation to provide information and documents etc.

                   For the purposes of conducting a review, the Inspector-General may request the Commissioner of Taxation:

                     (a)  to give the Inspector-General, or a member of the Inspector-General’s staff, information relevant to the review, or arrange for another tax official to do so; or

                     (b)  to produce to the Inspector-General, or a member of the Inspector-General’s staff, documents relevant to the review, or arrange for another tax official to do so; or

                     (c)  to attend before the Inspector-General, or a member of the Inspector-General’s staff, to answer questions relevant to the review, or arrange for another tax official to do so.

Note 1:       For restrictions on the power given by this section, see section 22 (information that would be prejudicial to the public interest).

Note 2:       Section 17 protects a person complying with a request in good faith from liability to a penalty or damages.

Note 3:       Section 18 provides that compliance with a request does not result in a loss of legal professional privilege.

15   Inspector-General may require tax officials to provide information and documents etc.

Application of section

             (1)  This section applies to a person who is or was a tax official if the Inspector-General has reason to believe that the person:

                     (a)  has information or documents relevant to a review; or

                     (b)  is capable of giving evidence that is relevant to a review.

Inspector-General may require information, documents etc.

             (2)  The Inspector-General may, by written notice given to the person, require the person:

                     (a)  to give the information to the Inspector-General, or a member of the Inspector-General’s staff, by the time, and in the manner and form, specified in the notice; or

                     (b)  to produce the documents to the Inspector-General, or a member of the Inspector-General’s staff, by the time, and in the manner, specified in the notice; or

                     (c)  to attend before the Inspector-General, or a member of the Inspector-General’s staff, at the time and place specified in the notice, and answer questions relevant to the review.

Note 1:       For restrictions on the power given by this subsection, see section 22 (information that would be prejudicial to the public interest).

Note 2:       Section 16 removes certain excuses that might otherwise justify non-compliance with a requirement.

Note 3:       Section 17 protects a person complying with a requirement in good faith from liability to a penalty or damages.

Note 4:       Section 18 provides that compliance with a requirement does not result in a loss of legal professional privilege.

People must be given at least 14 days to comply

             (3)  The time specified under paragraph (2)(a), (b) or (c) must be at least 14 days after the notice is given.

Information or answers may be required to be given on oath etc.

             (4)  The Inspector-General may require the information or answers to be verified by, or given on, oath or affirmation, and either orally or in writing. For that purpose, the Inspector-General, or a member of the Inspector-General’s staff, may administer the oath or affirmation.

             (5)  The oath or affirmation is an oath or affirmation that the information or answers are or will be true.

Offence

             (6)  The person commits an offence if:

                     (a)  the person has been given a notice under subsection (2); and

                     (b)  the person fails:

                              (i)  to give the required information by the time, and in the manner and form, specified in the notice; or

                             (ii)  to produce the required documents by the time, and in the manner, specified in the notice; or

                            (iii)  to attend to answer questions at the time and place specified in the notice; or

                            (iv)  to answer questions relevant to the review while attending as required by the notice.

Penalty:  Imprisonment for 6 months.

16   Certain excuses are not available in relation to section 15 requirements

Excuses that are not available

             (1)  A person is not excused from giving information, producing a document, or answering a question, under section 15 on the ground that to do so:

                     (a)  would contravene any other law; or

                     (b)  might tend to incriminate the person or otherwise expose the person to a penalty or other liability; or

                     (c)  would disclose material that is protected against disclosure by legal professional privilege or any other duty of confidence; or

                     (d)  would be otherwise contrary to the public interest.

Note:          See section 27 for other provisions about legal professional privilege.

Use/derivative use indemnity

             (2)  However, neither:

                     (a)  the information or answer given or the document produced; nor

                     (b)  any information, document or thing obtained as a direct or indirect consequence of giving the information or answer or producing the document;

is admissible in evidence against the person in proceedings, other than:

                     (c)  proceedings for an offence against subsection 15(6); or

                     (d)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) that relates to this Act; or

                     (e)  proceedings for an offence against section 149.1 of the Criminal Code (obstruction of Commonwealth public officials) that relates to this Act.

17   Protection from liability for people making submissions or complying with requests or requirements

             (1)  A person who, in good faith, makes a submission in response to an invitation under section 13 is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person because of that conduct.

             (2)  A person who, in good faith:

                     (a)  gives information; or

                     (b)  produces a document; or

                     (c)  answers a question;

when requested or required to do so under section 14 or 15 is not liable:

                     (d)  to any proceedings for contravening any other law because of that conduct; or

                     (e)  to civil proceedings for loss, damage or injury of any kind suffered by another person because of that conduct.

18   No loss of legal professional privilege

                   Information or a document does not cease to be the subject of legal professional privilege merely because it is:

                     (a)  included or referred to in a submission made in response to an invitation under section 13; or

                     (b)  given or produced in response, or included or referred to in a response, to a request or requirement made under section 14 or 15; or

                     (c)  referred to in answering a question asked pursuant to a request or requirement made under section 14 or 15.

19   Inspector-General may keep documents

Inspector-General may keep documents

             (1)  The Inspector-General may take possession of a document produced under section 14 or 15 and keep it for as long as is necessary for the purposes of conducting the review to which the document is relevant.

Certified copy to be supplied to person entitled to document

             (2)  The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Inspector-General to be a true copy.

Certified copy to be treated as original

             (3)  The certified copy must be received in all courts and tribunals as evidence as if it were the original.

Right to inspect and copy the original

             (4)  Until a certified copy is supplied, the Inspector-General must, at such times and places as the Inspector-General thinks appropriate, permit the person otherwise entitled to possession of the document (or a person authorised by that person) to inspect and make copies of all or part of the document.

20   Inspector-General may make and keep copies of documents

                   The Inspector-General may make and keep copies of all or part of any documents produced under section 14 or 15.

21   Access to ATO premises

                   The Commissioner of Taxation must comply with (or ensure compliance with) any reasonable request made by the Inspector-General for access by the Inspector-General, or a member of the Inspector-General’s staff, to any premises occupied by the Australian Taxation Office for the purposes of:

                     (a)  receiving information or documents under section 14 or 15; or

                     (b)  asking questions under section 14 or 15.



 

Division 4 Handling sensitive or confidential information

22   Information that would be prejudicial to the public interest

Minister’s power to certify that disclosure of information would be prejudicial

             (1)  The Minister may give the Inspector-General a certificate stating that the disclosure of information relating to a specified matter would:

                     (a)  prejudice the security, defence or international relations of the Commonwealth; or

                     (b)  prejudice negotiations relating to a treaty or other international agreement; or

                     (c)  be contrary to a treaty or other international agreement; or

                     (d)  prejudice relations between the Commonwealth and a State or Territory; or

                     (e)  involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or

                      (f)  involve the disclosure of deliberations or advice of the Executive Council; or

                     (g)  prejudice the prevention, investigation or prosecution of an offence against any law; or

                     (h)  prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of any law; or

                      (i)  be contrary to an order of a court or tribunal; or

                      (j)  be contrary to the public interest for any other reason that could form the basis for a claim in a judicial proceeding that information relating to the matter should not be disclosed or documents relating to the matter should not be produced; or

                     (k)  endanger the safety of any person; or

                      (l)  prejudice the revenue of the Commonwealth.

Certificates may have effect for information-gathering powers and/or reporting obligations

             (2)  A certificate may be expressed to have effect for the purposes of either or both of the following:

                     (a)  the Inspector-General’s information-gathering powers;

                     (b)  the Inspector-General’s reporting obligations.

However, a certificate based on the ground referred to in paragraph (1)(l) must only be expressed to have effect for the purposes of the Inspector-General’s reporting obligations.

Effect of certificate on information-gathering powers

             (3)  The following provisions apply while a certificate that is expressed to have effect for the purposes of the Inspector-General’s information-gathering powers is in force:

                     (a)  a submission, or a record of a submission, that contains information relating to the matter specified in the certificate must not be made available under subsection 13(3);

                     (b)  a person must not be requested or required under section 14 or 15 to give information, produce documents, or answer questions, relating to the matter specified in the certificate;

                     (c)  any request or requirement made under section 14 or 15 before the certificate was given ceases to have effect, so far as it relates to the matter specified in the certificate.

Effect of certificate on reporting obligations

             (4)  While a certificate that is expressed to have effect for the purposes of the Inspector-General’s reporting obligations is in force, information relating to the matter specified in the certificate must not be included in a report under section 10 or 41.

23   Taxpayer information

Reports not to include information relating to a taxpayer’s affairs

             (1)  Information relating to a particular taxpayer’s affairs must not be included in a report under section 10 or 41 if:

                     (a)  the taxpayer is named, or otherwise specifically identified, in the report as the taxpayer to whom the information relates; or

                     (b)  it is reasonably likely that people generally (other than people to whom the taxpayer has disclosed information relating to the taxpayer’s affairs) would be able to work out the identity of the taxpayer to whom the information relates.

Submissions not to be made available if they include information relating to a taxpayer’s affairs

             (2)  A submission, or a record of a submission, that contains information relating to a particular taxpayer’s affairs must not be made available under subsection 13(3) if:

                     (a)  the taxpayer is named, or otherwise specifically identified, in the submission or record as the taxpayer to whom the information relates; or

                     (b)  it is reasonably likely that people to whom the submission or record is proposed to be made available (other than people to whom the taxpayer has disclosed information relating to the taxpayer’s affairs) would be able to work out the identity of the taxpayer to whom the information relates.

Note:          This subsection applies even when the information relates to the submission-maker’s own affairs.

Matters to be taken into account in “reasonably likely” test

             (3)  For the purposes of applying paragraphs (1)(b) and (2)(b) to information relating to a particular taxpayer’s affairs, the context in which the information appears, and information that is otherwise publicly available, must be taken into account (as well as any other relevant matter).

24   Identifying tax officials

Reports generally not to name tax officials

             (1)  A report under section 10 or 41 must not name, or otherwise specifically identify, a particular tax official, other than the Commissioner of Taxation, as being a person whose conduct has been considered in the course of a review.

Submissions not to be made available if they name tax officials

             (2)  A submission, or a record of a submission, must not be made available under subsection 13(3) if it names, or otherwise specifically identifies, a particular tax official, other than the Commissioner of Taxation.

However this does not apply to references to parts of the ATO

             (3)  For the purposes of this section, merely naming, or otherwise specifically identifying, a part of the Australian Taxation Office does not constitute naming or identifying a particular tax official.

25   Criticising the ATO or tax officials

Proposal to include criticism of the ATO or tax officials in a report

             (1)  This section applies if it is proposed to include in a report under section 10 or 41 material that is expressly or impliedly critical of:

                     (a)  the Australian Taxation Office or a part of the Australian Taxation Office; or

                     (b)  a tax official or a group of tax officials.

Commissioner to be given opportunity to make submissions

             (2)  The material must not be included in the report unless the Inspector-General has given the Commissioner of Taxation, or a person authorised in writing by the Commissioner, a reasonable opportunity to make submissions to the Inspector-General in relation to the subject of the criticism.

Note:          Compliance with this subsection for the purposes of including material in a report under section 10 also counts as compliance for the purposes of including substantially the same material in a report under section 41.

How submissions may be made

             (3)  The Commissioner or the authorised person may choose to make either or both written or oral submissions.

             (4)  If the Commissioner or the authorised person chooses to make oral submissions, the Commissioner or authorised person may:

                     (a)  make the submissions personally; or

                     (b)  choose another person to make the submissions on the Commissioner’s or authorised person’s behalf (whether or not the Commissioner or authorised person is present during those submissions).

Protection from liability for people making submissions

             (5)  A person who, in good faith, makes a submission under this section is not liable:

                     (a)  to any proceedings for contravening any other law because of that conduct; or

                     (b)  to civil proceedings for loss, damage or injury of any kind suffered by another person because of that conduct.

No loss of legal professional privilege

             (6)  Information or a document does not cease to be the subject of legal professional privilege merely because it is included or referred to in a submission made under this section.

26   Confidential submissions

Confidential submissions not to be made available or reported

             (1)  If a person who makes a submission under section 13 has told the Inspector-General, or a member of the Inspector-General’s staff, that the submission is to be kept confidential, then:

                     (a)  the submission, or a record of the submission, must not be made available under subsection 13(3); and

                     (b)  information contained in the submission must not be included in a report under section 10 or 41.

Restriction does not apply if same information is obtained by other means

             (2)  However, paragraph (1)(b) does not prevent the inclusion in a report of information contained in a submission if the same information has also been obtained by the Inspector-General, or a member of the Inspector-General’s staff, by other means.

27   Legal professional privilege

Reports not to include privileged information or documents

             (1)  Information or a document:

                     (a)  that has been given or produced to the Inspector-General, or a member of the Inspector-General’s staff, under section 14, 15 or 25; and

                     (b)  that is:

                              (i)  the subject of legal professional privilege; or

                             (ii)  derived from information or a document that is the subject of legal professional privilege;

must not be included in a report under section 10 or 41.

Limited power to refer in reports to privileged legal advice

             (2)  Despite subsection (1), a report may include a statement:

                     (a)  to the effect that legal advice (being advice contained in information or a document that was given or produced as referred to in paragraph (1)(a)) was considered in the course of the review; and

                     (b)  outlining, in general terms, the relevance of that advice, or of any aspect of it, to the review.

However, in doing so, the other provisions of this Division must still be complied with.

Subsection (2) does not otherwise affect privilege

             (3)  If a report includes a statement relating to legal advice as referred to in subsection (2), the advice does not cease to be the subject of legal professional privilege merely because:

                     (a)  the report includes that statement; or

                     (b)  the report is given to the Minister; or

                     (c)  the report, or any part of it, is tabled or otherwise made publicly available by the Minister.