Here’s one that could have ‘slipped under the [tax] radar’. On 5 Dec 2021, the Department of Home Affairs issued a discussion paper called: Reform of Australia’s electronic surveillance framework., which calls for submissions from the public by 11 Feb 2022. This has relevance to tax in that there is a proposal that the ATO get ‘bugging’ powers.
This arises because of the example of the ATO used in a ‘Case Study’ about the range of agencies who should be given these powers.
The case study is as follows.
Case study
In most cases granting access to these additional powers will complement
existing investigative powers. For example, with respect to the ATO, access to telecommunications data would support or, in some cases, potentially replace expensive, resource-intensive and intrusive physical surveillance operations. ATO experience demonstrates that telecommunications data would also be a critical tool in excluding non-involved individuals from lines of inquiry, or in establishing a relationship between an original person of interest being investigated (for example, for tax fraud) and a larger group of individuals committing serious criminal offences (such as large-scale fraud against the Commonwealth).
When deciding whether any additional agency (other than those listed above) should have access to particular powers in the new framework, the Government will consider the following questions.
- Does the agency typically deal with the investigation, prevention or enforcement of crimes that merit access to such information?
- Does the agency need access to electronic surveillance powers to effectively perform its functions and, if so, which powers in particular?
- Are there other effective mechanisms the agency could use to obtain the information it needs?
- Does the agency have appropriate expertise and privacy safeguards, including secure systems, facilities and processes in place to deal with information received through electronic surveillance?
- Does the agency have appropriate processes in place to allow it to comply with the law (for example, does it have processes in place to meet record-keeping and reporting requirements)?
- Is it in the public interest for the agency to have these powers, considering the severity of any public harm that may result in the absence of the powers?
- Are there any other factors in favour of, or against, giving the agency these powers?
- Are there appropriate oversight mechanisms in place?
Questions
- Are there any additional agencies that should have powers to access particular information and data to perform their functions? If so, which agencies and why?
- Do you agree with the proposed considerations for determining whether additional agencies should be permitted to access peoples’ information and data? Are there any additional considerations that have not been outlined above?
Should the ATO get ‘bugging’ powers?
Many would think that the ATO has plenty of power, enough, already, without adding more. The case study suggest that electronic surveillance could replace costly and cumbersome physical surveillance – but does the ATO have the culture and administrative safeguards for this. Could not the ATO request the Police, or others with this power, to do so, when needed? The example given is that these surveillance powers could be used to clear those who are not involved in (say) some fraud. But that is immediately to suggest, that the privacy of innocent (uninvolved) persons has already been breached – when they have done nothing wrong. One could easily see how the surveillance power might descend a slippery slope – going from suspected involvement in serious crime, down to general trawling. One of the problems with collateral surveillance, is collateral information picked up, which the ATO is bound to use – if it is to tax people.
The Law Council of Australia is considering the tax implications of this and intends to make a submission.
Discussion Paper – Overview
The internet and digital communications have forever changed the way we live, work and do business. Such technological advances have undoubtedly improved many aspects of our lives. However, they have also been embraced by criminals, terrorists and other nefarious actors. Our laws have struggled to keep pace, creating significant challenges for agencies that have a legitimate need to exercise electronic surveillance powers.
Law enforcement agencies, including integrity and anti-corruption bodies, and the Australian Security Intelligence Organisation (ASIO) at times require access to specific information and data1 to protect the community from serious crimes and threats to Australia’s national security. Without access to this information, law enforcement agencies could not prevent and prosecute the most serious criminal activities, such as child sexual abuse, organised crime and cybercrime. For ASIO, access to this information and data
is critical to protect Australia from serious national security threats, such as terrorism or foreign interference with our democratic institutions.
The protection of, and access to, this information and data is governed by a range of legislation, including:
- the Telecommunications (Interception and Access) Act 1979 (TIA Act)
- the Surveillance Devices Act 2004 (SD Act)
- parts of the Australian Security Intelligence Organisation Act 1979 (ASIO Act)
- parts of the Telecommunications Act 1997 (Telecommunications Act)
- discrete parts of other Commonwealth and state and territory laws.These Acts protect several different kinds of information and data from unauthorised access, and only allow government agencies to lawfully access information and data in limited circumstances. The Acts also require companies that own telecommunications infrastructure and provide telecommunications services, to protect this information and to assist government agencies to gain access to it in certain circumstances. Information in relation to these obligations and powers is at Attachment A.
The current legislative framework was examined extensively by Mr Dennis Richardson AC in the Comprehensive Review of the Legal Framework of the National Intelligence Community (the Comprehensive Review).2 The Comprehensive Review identified that the current laws are complex, inconsistent, outdated and inflexible. This puts at risk the effectiveness of protections for people’s information and data, and the proper governance of agencies who access this information. It also creates difficulties for agencies when investigating serious criminality and threats to national security. To address these risks, the Government intends to develop a new modernised and streamlined electronic surveillance legislative framework by 2023.
The reform project aims to repeal the TIA Act, SD Act and relevant parts of the ASIO Act, and replace the current patchwork of laws with a single, streamlined and technology- neutral Act.3 Developing the new framework will be the most significant reform to Australia’s national security laws in more than four decades. The new framework will be developed in line with the principles and values that underscore our liberal democratic society. Therefore, it is critical the policy underpinning the new framework is informed by the views of affected stakeholders and the Australian public. Over the next 2 years, the Government will work closely with a range of stakeholders, including the communications industry and the public, to ensure that the new framework is clear, consistent and well adapted to the modern world and dynamic threat environment.
[Dept of Home Affairs website: Consultation landing page, Reform Summary, Discussion Paper]
[Tax Month – January 2022 – Previous 2021] 18.1.22