Law Council of Australia

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Response to PwC—tax regulator information gathering powers

18 June 2024

On 11 June 2024, the Law Council provided a submission to the Treasury in relation to its review of tax regulator information gathering powers. The consultation was particularly interested in whether the Australian Taxation Office’s (ATO) information gathering powers remain fit for purpose and operate to allow the ATO to properly assist the Australian Federal Police to investigate serious criminal offences perpetrated against the tax and superannuation systems.

In its submission, the Law Council cautioned against measures to increase the ATO’s information-gathering powers, noting that a number of existing agencies have specialist powers for criminal investigations, and those agencies are better equipped to carry out investigations in the context of tax crimes. The Law Council expressed the view that a preferred approach would be for the Australian Government to ensure the current inter-agency processes work more efficiently and effectively. This was particularly highlighted in the context of any proposal to grant the ATO direct access to telecommunications data and stored communications under the Telecommunications (Interception and Access) Act 1979 (Cth). Given the highly intrusive nature of such electronic surveillance, the Law Council reiterated that direct access powers should only be exercised by specified agencies that have established internal controls and expertise, for narrowly defined purposes.

Finally, the Law Council’s submission emphasised the importance of ensuring that any proposed expansion of the ATO’s investigatory powers, including coercive information-gathering powers, has due regard to appropriate thresholds in order to maintain a suitable balance between the statutory objectives of agencies and the interests of those in respect of whom the information-gathering powers are exercisable. 

The Law Council will continue to monitor progress in this area, and will engage closely with any legislative reforms proposals that may arise from the consultation.

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