Chapter 4
Conclusions and recommendations
Conclusions
4.1
The committee does not accept that it is necessary to overturn centuries
of accepted law and practice in relation to parliamentary privilege in order to
safeguard the privacy of individual taxpayer information.
4.2
Having examined the provisions closely and taken evidence from
expert witnesses, the
committee is not satisfied that the need for the provisions has been
demonstrated. In response to direct questioning by both the Economics
Legislation Committee and this committee on this point, Treasury officials were
unable to provide a clear and demonstrated need for the provisions. No
precedents were cited and no examples given that any protected taxpayer
information had ever been provided to a parliamentary committee. Further, in
relation to the key policy of the bill, the maintenance of the privacy of
taxpayers' information, no evidence was forthcoming that there has ever been
either higher than a request for, or an
attempt to present, such information to a parliamentary committee.
4.3
On the
contrary, the committee is satisfied that the rigours of the existing controls
operating within the Parliament are more than sufficient to maintain and
protect the privacy of taxpayers' information.
4.4
In
considering whether or not the provisions are workable, the committee has
received abundant evidence to indicate that they are complex and confusing and
would present significant difficulties of application and interpretation to
both taxation officials and courts that would have to deal with them.
4.5
It is on the
last question, dealing with the principle of the provisions and the potential
they have to set a bad precedent for inroads into the powers of the Parliament
and its committees that the committee has the greatest concern. To have
statutory provisions interfering in the powers and operations of the Parliament
is obnoxious in principle. In view of the very large number of statutory secrecy
provisions already enacted at the Commonwealth level, the committee draws the
attention of senators to the real danger of a creeping reduction in the areas
of Parliamentary inquiry as one area after another of Commonwealth government
activity seeks exemptions for itself from providing information to
Parliamentary committees.
Solutions to the Problem
4.6
The committee
is of the view that a solution is required which both preserves the
Parliament's need to safeguard its privileges and the integrity of its
committee operations and to protect the rights of senators and witnesses on the
one hand and on the other, meets the policy requirement to ensure the
protection of the privacy of taxpayer information. The committee has considered
a variety of solutions to this problem and believes that both of these outcomes
are achievable.
4.7
The simplest solution is to remove any reference to Parliament and its
committees from the bill and allow the existing law to operate in conjunction
with the existing procedural protections provided by standing and other orders
of the Houses. Amendments required to give effect to this solution are in
Appendix 4. A second option, contained in Appendix 4, takes into account the
views expressed by Treasury officers that the bill seeks to provide guidance to
taxation officers in their dealings with parliamentary committees. Option 2,
therefore, while removing the application of the offence provisions to dealings
between officers and committees, inserts a declaration near the beginning of
proposed new Division 355 that disclosures to Parliament and its committees are
not affected by anything in the new Division.
4.8
The committee
has drawn attention to the operation of the standing orders, the privileges
resolutions and to the resolution of the Senate relating to public interest
immunity claims, all of which provide a sound structure for committees to
either handle sensitive information and retain it on in camera basis or, in
cases where a claim of public interest immunity has been made out, to decide to
not receive the information at all.
In any case, if a committee were to request information of
this nature, it would be open to a witness to follow the normal procedures
leading to a claim of public interest immunity on the ground that disclosure of
the information would amount to an unreasonable invasion of the privacy of an
individual and could cause harm to that individual as a result. This is a
well-established ground of public interest immunity and committees have had no
difficulty in the past in accommodating privacy concerns while still obtaining
the evidence they require[1].
4.9
The committee
has considered the use of the existing procedures to maintain and protect
privacy. In the course of the hearing, the former Chair noted that if the
existing procedures were not considered sufficient, a possible solution could
be to deal with the matter by a more specific resolution of the Senate:
one useful recommendation of this inquiry might be for the
Senate procedure committee to look at this question and consider including
confidential taxpayers’ information in the express exemptions for information
to be taken in camera only—basically having the issue dealt with by either a
standing order or a privilege resolution. If there were congruent amendments to
this bill, that might well meet the mischief here.[2]
Conclusions and recommendations
4.10
The committee
has considered proposed sections 355-55, 355-60 and 355-155 of the Tax Laws Amendment
(Confidentiality of Taxpayer Information) Bill 2009 and concludes that the
provisions are:
- unnecessary
and without
justification;
- confusing,
unworkable and ineffectual in achieving their objective;
- a
bad precedent; and
- above
all, contrary to fundamental principles of parliamentary privilege and set a
bad precedent.
4.11
The committee
therefore recommends that the Tax Laws Amendment (Confidentiality of
Taxpayer Information) Bill 2009 be amended to remove the offending provisions
along the lines of the amendments in Appendix 4, thereby leaving the existing
law in this area to continue to operate.
4.12
This recommendation
proposes two options for amendments to achieve this end:
Option (1) removes
any reference to Parliament and its committees from the bill, thereby allowing
the existing law to operate in conjunction with the existing procedural
protections provided by standing and other orders of the Houses.
Option (2) removes
the application of the offence provisions to dealings between taxation officers
and Parliamentary committees and provides guidance to taxation officers in
their dealings with Parliamentary committees and declares that disclosures to
Parliament and its committees are not affected by the bill.
4.13
The committee
further recommends that the Procedure Committee consider whether it is
necessary to strengthen guarantees to safeguard the privacy of taxpayer
information by means of a resolution of the Senate.
4.14
The committee
further recommends that the Clerk of the Senate write to the
Commissioner of Taxation drawing attention to the training provided by the
Department of the Senate in parliamentary matters and the availability of the
Department of the Senate to work with the Australian Taxation Office in
developing appropriate in-house training materials.
Senator David Johnston
Chair
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