Commonwealth Coat of Arms of Australia

Taxation Administration Act 1953

No. 1, 1953

Compilation No. 205

Compilation date: 1 January 2024

Includes amendments: Act No. 61, 2023 and Act No. 69, 2023

Registered: 5 January 2024

This compilation is in 4 volumes

Volume 1: sections 1–18

 Schedule 1 (sections 61 to 215)

Volume 2: Schedule 1 (sections 451 to 298110)

Volume 3: Schedule 1 (sections 3081 to 9905)

Volume 4: Endnotes

Each volume has its own contents

About this compilation

This compilation

This is a compilation of the Taxation Administration Act 1953 that shows the text of the law as amended and in force on 1 January 2024 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

 

 

 

Contents

Schedule 1—Collection and recovery of income tax and other liabilities

Chapter 4—Generic assessment, collection and recovery rules

Part 430—Offences and prosecutions

Division 308—Offences relating to tobacco

Guide to Division 308 1

3081 What this Division is about

Subdivision 308A—Reasonable suspicion offences relating to tobacco

Guide to Subdivision 308A

3085 What this Subdivision is about

30810 Possession of tobacco (500 kilograms or above)—reasonable suspicion offence

30815 Possession of tobacco (100 kilograms or above)—reasonable suspicion offence

30820 Possession of tobacco (5 kg or above)—reasonable suspicion offence

30825 Sale of tobacco (500 kilograms or above)—reasonable suspicion offence

30830 Sale of tobacco (100 kilograms or above)—reasonable suspicion offence

30835 Sale of tobacco (5 kg or above)—reasonable suspicion offence

30840 Buying of tobacco (500 kilograms or above)—reasonable suspicion offence

30845 Buying of tobacco (100 kilograms or above)—reasonable suspicion offence

30850 Buying of tobacco (5 kg or above)—reasonable suspicion offence

30855 Matters taken to satisfy “reasonable to suspect” requirement

Subdivision 308B—Faultbased offences of possession, production and manufacture

Guide to Subdivision 308B

308105 What this Subdivision is about

308110 Possession of tobacco (500 kg or above)—faultbased offence

308115 Possession of tobacco (100 kg or above)—faultbased offence

308120 Possession of tobacco (5 kg or above)—faultbased offence

308125 Manufacture or production of tobacco (500 kg or above)—faultbased offence

308130 Manufacture or production of tobacco (100 kg or above)—faultbased offence

308135 Manufacture or production of tobacco (5 kg or above)—faultbased offence

Subdivision 308C—Offences relating to equipment relating to the manufacture or production of tobacco

Guide to Subdivision 308C

308200 What this Subdivision is about

308205 Possession of equipment for use in illegal manufacture or production of tobacco

308210 Possession of equipment designed or adapted to manufacture or produce tobacco

Subdivision 308E—Other provisions

Guide to Subdivision 308E

308500 What this Subdivision is about

308505 Things treated as tobacco

308510 Matters treated as possession

308515 Where excise duty or customs duty is treated as not payable for the purpose of the reasonable suspicion offences

308520 Section 8ZD does not apply to this Division

Part 450—Release from particular liabilities

Division 340Commissioner’s power in cases of hardship

Guide to Division 340 49

3401 What this Division is about

Operative provisions

3405 Release from particular liabilities in cases of serious hardship

34010 Liabilities to which this section applies

34015 Commissioner may take action to give effect to a release decision

34020 Extinguishing your liability to pay a fringe benefits tax instalment if you are released

34025 Extinguishing your liability to pay a PAYG instalment if you are released

Division 342Commissioner’s power relating to proceeds of crime proceedings

Guide to Division 342 55

3421 What this Division is about

Subdivision 342A—Power to waive right to payment of taxrelated liabilities

3425 Object of this Subdivision

34210 Power to waive right to payment of taxrelated liability

Part 490—Evidence

Division 350—Evidence

Guide to Division 350 58

3501 What this Division is about

Subdivision 350A—Evidence

3505 Application of Subdivision

35010 Evidence

35012 Prima facie evidence—particulars stated in evidentiary certificate

35015 Judicial notice of signature

35020 Certain statements or averments in proceedings to recover taxrelated liabilities

35025 Evidence by affidavit in proceedings to recover taxrelated liabilities

Chapter 5—Administration

Part 51—The Australian Taxation Office

Division 352—Commissioner’s reporting obligations

Guide to Division 352 64

3521 What this Division is about

Subdivision 352A—Accountability of the Commissioner in respect of indirect tax laws

3525 Commissioner must prepare annual report on indirect tax laws

Subdivision 352C—Reporting on working holiday makers

35225 Commissioner must prepare annual report on working holiday makers

Division 353—Powers to obtain information and evidence

Guide to Division 353 66

3531 What this Division is about

Subdivision 353A—Powers to obtain information and evidence

35310 Commissioner’s power

35315 Access to premises, documents etc.

35320 Checking status of specifically listed deductible gift recipients

Subdivision 353B—Powers to obtain information and evidence from overseas

35325 Offshore information notices

35330 Offshore information notices—consequence of not complying

Division 354—Power to obtain information about rights or interests in property

3545 Power to obtain information about rights or interests in property

Division 355—Confidentiality of taxpayer information

Guide to Division 355 76

3551 What this Division is about

Subdivision 355A—Objects and application of Division

35510 Objects of Division

35515 Application of Division

Subdivision 355B—Disclosure of protected information by taxation officers

Guide to Subdivision 355B

35520 What this Subdivision is about

Operative provisions

35525 Offence—disclosure of protected information by taxation officers

35530 Meaning of protected information and taxation officer

35535 Consent is not a defence

35540 Generality of Subdivision not limited

35545 Exception—disclosure of publicly available information

35547 Exception—disclosure of periodic aggregate tax information

35550 Exception—disclosure in performing duties

35555 Exception—disclosure to Ministers

35560 Limits on disclosure to Ministers

35565 Exception—disclosure for other government purposes

35566 Major disaster support programs

35567 Exception—disclosure to registrars

35570 Exception—disclosure for law enforcement and related purposes

35572 Exception—disclosure to credit reporting bureaus

35575 Limits on disclosure to courts and tribunals

Subdivision 355C—Ondisclosure of protected information by other people

Guide to Subdivision 355C

355150 What this Subdivision is about

Operative provisions

355155 Offence—ondisclosure of protected information by other people

355160 Consent is not a defence

355165 Generality of Subdivision not limited

355170 Exception—ondisclosure of publicly available information

355172 Exception—disclosure of periodic aggregate tax information

355175 Exception—ondisclosure for original purpose

355180 Exception—ondisclosure to Ministers in relation to statutory powers or functions

355182 Exception—ondisclosure of certain information to Commonwealth Ombudsman

355185 Exception—ondisclosure to IGIS officials

355190 Exception—ondisclosure in relation to ASIO

355192 Exception—ondisclosure in relation to National AntiCorruption Commission Act 2022

355195 Exception—ondisclosure by Royal Commissions

355200 Exception—records made in compliance with Australian laws

355205 Limits on ondisclosure to courts or tribunals

355210 Limits on ondisclosure to Ministers

355215 Exception—ondisclosure of information disclosed to credit reporting bureaus

Subdivision 355D—Disclosure of protected information that has been unlawfully acquired

Guide to Subdivision 355D

355260 What this Subdivision is about

Operative provisions

355265 Offence—disclosure of protected information acquired in breach of a taxation law

355270 Exception—disclosure of publicly available information

355275 Exception—disclosure in relation to a taxation law

355280 Limits on disclosure to courts and tribunals

Subdivision 355E—Other matters

Guide to Subdivision 355E

355320 What this Subdivision is about

Operative provisions

355325 Oath or affirmation to protect information

355330 Injunctions to prevent contravention of nondisclosure provisions

355335 Procedures for disclosing protected information

Division 356—General administration of tax laws

Guide to Division 356 133

3561 What this Division is about

Subdivision 356A—Indirect tax laws

3565 Commissioner has general administration of indirect tax laws

Subdivision 356B—Major bank levy

35610 Commissioner has general administration of major bank levy

Subdivision 356C—Laminaria and Corallina decommissioning levy

35615 Commissioner has general administration of Laminaria and Corallina decommissioning levy

Part 55—Rulings

Division 357—Object and common rules

Guide to Division 357 135

3571 What this Division is about

Subdivision 357A—Object of this Part

3575 Object of this Part

Subdivision 357B—Common rules for rulings

Rules for all rulings

35750 Scope of Division

35755 The provisions that are relevant for rulings

35760 When rulings are binding on the Commissioner

35765 Stopping relying on a ruling

35770 Commissioner may apply the law if more favourable than the ruling

35775 Inconsistent rulings

35780 Contracts for schemes

35785 Effect on ruling if relevant provision reenacted

35790 Validity of ruling not affected by formal defect

Common rules for public and private rulings

35795 Electronic communications

Common rules for private and oral rulings

357105 Further information must be sought

357110 Assumptions in making private or oral ruling

357115 Additional information provided by applicant

357120 Commissioner may take into account information from third parties

357125 Applications and objections not to affect obligations and powers

Division 358—Public rulings

Guide to Division 358 148

3581 What this Division is about

Making public rulings

3585 What is a public ruling?

35810 Application of public rulings

35815 When a public ruling ceases to apply

Withdrawing public rulings

35820 Withdrawing public rulings

Division 359—Private rulings

Guide to Division 359 151

3591 What this Division is about

Private rulings

3595 Private rulings

35910 Applying for a private ruling

35915 Private rulings to be given to applicants

35920 Private rulings must contain certain details

35925 Time of application of private rulings

35930 Ruling for trustee of a trust

35935 Dealing with applications

35940 Valuations

35945 Related rulings

35950 Delays in making private rulings

35955 Revised private rulings

35960 Objections, reviews and appeals relating to private rulings

35965 Commissioner may consider new information on objection

35970 Successful objection decision alters ruling

Division 360—Oral rulings

Guide to Division 360 161

3601 What this Division is about

Oral rulings

3605 Applying for and making of oral rulings

36010 Withdrawing an application for an oral ruling

36015 Commissioner determinations

Division 361—Nonruling advice and general administrative practice

3615 Nonruling advice and general administrative practice

Division 362—Rulings by Industry Innovation and Science Australia that activities are not ineligible activities

Guide to Division 362 165

3621 What this Division is about

Public rulings by Industry Innovation and Science Australia

3625 Industry Innovation and Science Australia may make public rulings on a specified class of activities

36210 Application of public rulings

36215 When a public ruling ceases to apply

36220 Withdrawing public rulings

Private rulings by Industry Innovation and Science Australia

36225 Industry Innovation and Science Australia may make private rulings on a specified activity

36230 Applying for a private ruling

36235 Industry Innovation and Science Australia must give notice of its decision

36240 Private rulings must contain certain details

36245 Application of private rulings

36250 Delays in making private rulings

36255 When a private ruling ceases to apply

36260 Withdrawing private rulings

General provisions

36265 When rulings are binding on the Commissioner and Industry Innovation and Science Australia

36270 Application of common rules under Subdivision 357B

36275 Application of Divisions 358 and 359

Part 510—Commissioner’s remedial power

Division 370—Commissioner’s remedial power

Guide to Division 370 174

3701 What this Division is about

Subdivision 370A—Commissioner’s remedial power

3705 Commissioner’s remedial power

37010 Intended purpose or object

37015 Repeal of determinations

37020 Commencement of determinations

Part 525—Recordkeeping and other obligations relating to taxpayers

Division 382—Recordkeeping

Guide to Division 382 178

3821 What this Division is about

Subdivision 382A—Keeping records of indirect tax transactions

3825 Keeping records of indirect tax transactions

Subdivision 382B—Record keeping obligations of deductible gift recipients

38215 Deductible gift recipients to keep records

Division 384—Education directions

Guide to Division 384 184

3845 What this Division is about

38410 When a superannuation guarantee education direction may be given

38412 When a taxrecords education direction may be given

38415 Content of, and matters relating to compliance with, education directions

38417 Compliance with superannuation guarantee education directions

38420 Approval of courses of education

38425 Costs of course of education

38430 Variation or revocation on Commissioner’s own initiative

38435 Variation on request

38440 Taxation objection

Division 388—Requirements about giving material to the Commissioner

Subdivision 388A—Object of Division

3885 Object of Division

Subdivision 388B—General provisions

38850 Approved forms

38852 Saturdays, Sundays and public holidays

38855 Commissioner may defer time for lodgment

38860 Declaration by entity

38865 Declaration by entity where agent gives document

38870 Declaration by agent

38875 Signing declarations

38880 Electronic notification of BAS amounts

38885 Truncating amounts

Division 389—Reporting by employers

Guide to Division 389 195

3891 What this Division is about

3895 Required reporting by employers

38910 Exemptions

38915 Voluntary reporting by employers in relation to taxation laws

38920 Effect on reporting requirements under Subdivision 16C

38925 Grace periods for correcting false or misleading notifications

38930 Voluntary reporting by employers in relation to child support laws

Division 390Superannuation reporting

Guide to Division 390 204

3901 What this Division is about

Subdivision 390A—Member information statements and rollover superannuation benefit statements

3905 Member information statements

3907 Grace periods for correcting false or misleading member information statements

39010 Statements about rollover superannuation benefits etc.

39012 Statements about benefits paid to KiwiSaver schemes

39015 Superannuation statements to members

39020 Statements relating to holders of certain life insurance policies

Subdivision 390B—Statements relating to release authorities

39065 Statements relating to release authorities

Subdivision 390C—Other statements

390115 Change or omission in information given to the Commissioner

Division 392—Employee share scheme reporting

Guide to Division 392 216

3921 What this Division is about

Subdivision 392A—Statements

3925 Statements by providers

39210 Change or omission in information given to the Commissioner

Subdivision 392B—Miscellaneous

39215 Application of certain provisions of Division 83A of the Income Tax Assessment Act 1997

Division 393—Reports by investment bodies

Guide to Division 393 222

3931 What this Division is about

3935 Reports about quoting tax file numbers and ABNs

39310 Annual investment income reports

39315 Errors in reports

Division 394Reporting about forestry managed investment schemes

Guide to Division 394 225

3941 What this Division is about

3945 Statements about initial contributions to scheme

39410 Statements about failure to establish trees within 18 months

Division 396—Third party reporting

Guide to Division 396 228

3961A What this Division is about

Subdivision 396A—FATCA

Guide to Subdivision 396A

3961 What this Subdivision is about

Operative provisions

3965 Statements about U.S. Reportable Accounts

39610 Statements about payments to Nonparticipating Financial Institutions

39615 Meaning of the FATCA Agreement

39620 Permissions and elections

39625 Record keeping

Subdivision 396B—Information about transactions that could have tax consequences for taxpayers

Guide to Subdivision 396B

39650 What this Subdivision is about

Operative provisions

39655 Reporting taxrelated information about transactions to the Commissioner

39660 Information required

39665 Exemptions—wholesale clients

39670 Exemptions—other cases

39675 Errors in reports

Subdivision 396C—Common Reporting Standard

Guide to Subdivision 396C

396100 What this Subdivision is about

Operative provisions

396105 Statements about Reportable Accounts

396110 Meaning of CRS

396115 Matters Common Reporting Standard leaves to domestic law

396120 Application of Common Reporting Standard

396125 Record keeping

396130 Antiavoidance provisions

396135 Application of penalty to false or misleading selfcertification

396136 Report on Reportable Accounts maintained by Australian Reporting Financial Institutions

Division 398—Miscellaneous reporting obligations

Guide to Division 398 252

3981 What this Division is about

Subdivision 398A—Farm Management Deposit reporting

3985 Reporting to Agriculture Department

Part 530—Payment, ABN and identification verification system

Division 400—Guide to Part 530

4001 What Part 530 is about

4005 The payment, ABN and identification verification system

Division 405—Transaction reporting by purchasers

4055 Payments to which this Division applies

40510 Reporting requirements

40515 Invoices produced by purchasers

Division 410—Transaction reporting by suppliers

4105 Payments to which this Division applies

41010 Reporting requirements

41015 Invoices produced by purchasers

Division 415—Verification of suppliers’ ABNs by purchasers

4155 Payments to which this Division applies

41510 ABN verification requirements

41515 Method of obtaining ABN verification

41520 Verification applies to later payments

Division 417—Verification of suppliers’ identities by purchasers

4175 Payments to which this Division applies

41710 Identity verification requirements

41715 Method of obtaining identity verification

41720 Verification applies to later payments

Division 420—Penalties for not reporting or verifying

4205 Failing to report or verify: administrative penalty

Division 425—Other matters

42520 Constructive payment

42525 Noncash benefits

Part 535—Registration and similar processes for various taxes

Division 426—Process of endorsing charities and other entities

Guide to Division 426 266

4261 What this Division is about

Subdivision 426A—Application of Subdivision 426B to various kinds of endorsement

4265 Application of Subdivision 426B to various kinds of endorsement

42610 How Subdivision 426B applies to government entities in relation to endorsement under section 30120 of the Income Tax Assessment Act 1997

Subdivision 426B—Process of endorsement etc.

42615 Applying for endorsement

42620 Dealing with an application for endorsement

42625 Notifying outcome of application for endorsement

42630 Date of effect of endorsement

42635 Review of refusal of endorsement

42640 Checking entitlement to endorsement

42645 Telling Commissioner of loss of entitlement to endorsement

42650 Partnerships and unincorporated bodies

42655 Revoking endorsement

42660 Review of revocation of endorsement

Subdivision 426C—Entries on Australian Business Register

42665 Entries on Australian Business Register

Subdivision 426D—Public and private ancillary funds

Guide to Subdivision 426D

426100 What this Subdivision is about

Public ancillary funds

426102 Public ancillary funds

426103 Public ancillary fund guidelines

426104 Australian Business Register must show public ancillary fund status

Private ancillary funds

426105 Private ancillary funds

426110 Private ancillary fund guidelines

426115 Australian Business Register must show private ancillary fund status

Administrative penalties

426120 Administrative penalties for trustees of ancillary funds

Suspension and removal of trustees

426125 Suspension or removal of trustees

426130 Commissioner to appoint acting trustee in cases of suspension or removal

426135 Terms and conditions of appointment of acting trustee

426140 Termination of appointment of acting trustee

426145 Resignation of acting trustee

426150 Property vesting orders

426155 Powers of acting trustee

426160 Commissioner may give directions to acting trustee

426165 Property vested in acting trustee—former trustees’ obligations relating to books, identification of property and transfer of property

Transfers between ancillary funds

426170 Ancillary funds must not provide funds to other ancillary funds

Part 545—Application of taxation laws to certain entities

Division 444—Obligations of entities on behalf of other entities

Guide to Division 444 290

4441 What this Division is about

Subdivision 444A—Unincorporated associations and bodies and companies

4445 Unincorporated associations and bodies

44410 Public officers of companies

44415 Notifying and serving companies

Subdivision 444B—Partnerships

44430 Partnerships

Subdivision 444C—Superannuation funds

44450 Superannuation funds

Subdivision 444D—Incapacitated entities

44470 Representatives of incapacitated entities

Subdivision 444E—Indirect tax specific entities

44480 GST joint ventures

44485 Nonprofit subentities

44490 GST groups

Division 446—Local governing bodies

Guide to Division

4461 What this Division is about

Operative provisions

4465 Requirements for unanimous resolutions by local governing bodies

Part 5100—Miscellaneous

Division 850—Transactions exempt from application of taxation laws

Subdivision 850A—Declaration relating to security or intelligence agency

850100 Declaration relating to security or intelligence agency

Division 990—Miscellaneous

Subdivision 990A—Combining notices

9905 Commissioner may combine notices

Schedule 1Collection and recovery of income tax and other liabilities

Chapter 4Generic assessment, collection and recovery rules

Part 430Offences and prosecutions

Division 308Offences relating to tobacco

Table of Subdivisions

 Guide to Division 308

308A Reasonable suspicion offences relating to tobacco

308B Faultbased offences of possession, production and manufacture

308C Offences relating to equipment relating to the manufacture or production of tobacco

308E Other provisions

Guide to Division 308

3081  What this Division is about

This Division sets out offences and related provisions relating to tobacco.

Subdivision 308AReasonable suspicion offences relating to tobacco

Guide to Subdivision 308A

3085  What this Subdivision is about

This Subdivision sets out offences for the possession, sale or buying of tobacco of various quantities where it is reasonable to suspect that none of the following circumstances exist:

 (a) excise duty has been paid on the tobacco;

 (b) customs duty has been paid on the tobacco;

 (c) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (d) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth.

This Subdivision sets out defences to those offences, such as where an accused person has a relevant permission or licence under excise or customs legislation.

Table of sections

30810 Possession of tobacco (500 kilograms or above)—reasonable suspicion offence

30815 Possession of tobacco (100 kilograms or above)—reasonable suspicion offence

30820 Possession of tobacco (5 kg or above)—reasonable suspicion offence

30825 Sale of tobacco (500 kilograms or above)—reasonable suspicion offence

30830 Sale of tobacco (100 kilograms or above)—reasonable suspicion offence

30835 Sale of tobacco (5 kg or above)—reasonable suspicion offence

30840 Buying of tobacco (500 kilograms or above)—reasonable suspicion offence

30845 Buying of tobacco (100 kilograms or above)—reasonable suspicion offence

30850 Buying of tobacco (5 kg or above)—reasonable suspicion offence

30855 Matters taken to satisfy “reasonable to suspect” requirement

30810  Possession of tobacco (500 kilograms or above)—reasonable suspicion offence

 (1) A person commits an offence if:

 (a) the person possesses a thing; and

 (b) the thing is tobacco (other than tobacco seed or tobacco plant); and

 (c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and

 (d) it is reasonable to suspect that none of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and

 (e) the weight of the tobacco is 500 kilograms or above.

Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following:

 (a) 1,000 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(d).

 (6) Absolute liability applies to paragraph (1)(e).

 (7) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 (8) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

 (9) Subsection (1) does not apply if:

 (a) the person has permission (within the meaning of the Excise Act 1901):

 (i) to possess the tobacco; or

 (ii) to move the tobacco; or

 (b) the tobacco is covered by an authority under section 55 of that Act; or

 (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

 (10) Subsection (1) does not apply if:

 (a) any of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or

 (b) the person has reasonable grounds to suspect that any of those circumstances exist.

Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).

30815  Possession of tobacco (100 kilograms or above)—reasonable suspicion offence

 (1) A person commits an offence if:

 (a) the person possesses a thing; and

 (b) the thing is tobacco (other than tobacco seed or tobacco plant); and

 (c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and

 (d) it is reasonable to suspect that none of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and

 (e) the weight of the tobacco is 100 kilograms or above.

Penalty: 2 years imprisonment or the greater of the following, or both 2 years imprisonment and the greater of the following:

 (a) 500 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(d).

 (6) Absolute liability applies to paragraph (1)(e).

 (7) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 (8) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

 (9) Subsection (1) does not apply if:

 (a) the person has permission (within the meaning of the Excise Act 1901):

 (i) to possess the tobacco; or

 (ii) to move the tobacco; or

 (b) the tobacco is covered by an authority under section 55 of that Act; or

 (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

 (10) Subsection (1) does not apply if:

 (a) any of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or

 (b) the person has reasonable grounds to suspect that any of those circumstances exist.

Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).

30820  Possession of tobacco (5 kg or above)—reasonable suspicion offence

 (1) A person commits an offence if:

 (a) the person possesses a thing; and

 (b) the thing is tobacco (other than tobacco seed or tobacco plant); and

 (c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and

 (d) it is reasonable to suspect that none of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and

 (e) the weight of the tobacco is 5 kilograms or above.

Penalty: The greater of the following:

 (a) 200 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(d).

 (6) Absolute liability applies to paragraph (1)(e).

 (7) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 (8) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

 (9) Subsection (1) does not apply if:

 (a) the person has permission (within the meaning of the Excise Act 1901):

 (i) to possess the tobacco; or

 (ii) to move the tobacco; or

 (b) the tobacco is covered by an authority under section 55 of that Act; or

 (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

 (10) Subsection (1) does not apply if:

 (a) any of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or

 (b) the person has reasonable grounds to suspect that any of those circumstances exist.

Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).

30825  Sale of tobacco (500 kilograms or above)—reasonable suspicion offence

 (1) A person commits an offence if:

 (a) the person sells a thing; and

 (b) the thing is tobacco (other than tobacco seed or tobacco plant); and

 (c) the tobacco is in Australia but not in an external Territory; and

 (d) it is reasonable to suspect that none of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and

 (e) the weight of the tobacco is 500 kilograms or above.

Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following:

 (a) 1,000 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(d).

 (6) Absolute liability applies to paragraph (1)(e).

 (7) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 (8) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

 (9) Subsection (1) does not apply if:

 (a) the person has permission (within the meaning of the Excise Act 1901):

 (i) to possess the tobacco; or

 (ii) to move the tobacco; or

 (b) the tobacco is covered by an authority under section 55 of that Act; or

 (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

 (10) Subsection (1) does not apply if:

 (a) any of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or

 (b) the person has reasonable grounds to suspect that any of those circumstances exist.

Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).

30830  Sale of tobacco (100 kilograms or above)—reasonable suspicion offence

 (1) A person commits an offence if:

 (a) the person sells a thing; and

 (b) the thing is tobacco (other than tobacco seed or tobacco plant); and

 (c) the tobacco is in Australia but not in an external Territory; and

 (d) it is reasonable to suspect that none of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and

 (e) the weight of the tobacco is 100 kilograms or above.

Penalty: 2 years imprisonment or the greater of the following, or both 2 years imprisonment and the greater of the following:

 (a) 500 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(d).

 (6) Absolute liability applies to paragraph (1)(e).

 (7) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 (8) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

 (9) Subsection (1) does not apply if:

 (a) the person has permission (within the meaning of the Excise Act 1901):

 (i) to possess the tobacco; or

 (ii) to move the tobacco; or

 (b) the tobacco is covered by an authority under section 55 of that Act; or

 (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

 (10) Subsection (1) does not apply if:

 (a) any of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or

 (b) the person has reasonable grounds to suspect that any of those circumstances exist.

Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).

30835  Sale of tobacco (5 kg or above)—reasonable suspicion offence

 (1) A person commits an offence if:

 (a) the person sells a thing; and

 (b) the thing is tobacco (other than tobacco seed or tobacco plant); and

 (c) the tobacco is in Australia but not in an external Territory; and

 (d) it is reasonable to suspect that none of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and

 (e) the weight of the tobacco is 5 kilograms or above.

Penalty: The greater of the following:

 (a) 200 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(d).

 (6) Absolute liability applies to paragraph (1)(e).

 (7) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 (8) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

 (9) Subsection (1) does not apply if:

 (a) the person has permission (within the meaning of the Excise Act 1901):

 (i) to possess the tobacco; or

 (ii) to move the tobacco; or

 (b) the tobacco is covered by an authority under section 55 of that Act; or

 (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

 (10) Subsection (1) does not apply if:

 (a) any of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or

 (b) the person has reasonable grounds to suspect that any of those circumstances exist.

Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).

30840  Buying of tobacco (500 kilograms or above)—reasonable suspicion offence

 (1) A person commits an offence if:

 (a) the person buys a thing; and

 (b) the thing is tobacco (other than tobacco seed or tobacco plant); and

 (c) the tobacco is in Australia but not in an external Territory; and

 (d) it is reasonable to suspect that none of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and

 (e) the weight of the tobacco is 500 kilograms or above.

Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following:

 (a) 1,000 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(d).

 (6) Absolute liability applies to paragraph (1)(e).

 (7) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 (8) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

 (9) Subsection (1) does not apply if:

 (a) the person has permission (within the meaning of the Excise Act 1901):

 (i) to possess the tobacco; or

 (ii) to move the tobacco; or

 (b) the tobacco is covered by an authority under section 55 of that Act; or

 (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

 (10) Subsection (1) does not apply if:

 (a) any of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or

 (b) the person has reasonable grounds to suspect that any of those circumstances exist.

Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).

30845  Buying of tobacco (100 kilograms or above)—reasonable suspicion offence

 (1) A person commits an offence if:

 (a) the person buys a thing; and

 (b) the thing is tobacco (other than tobacco seed or tobacco plant); and

 (c) the tobacco is in Australia but not in an external Territory; and

 (d) it is reasonable to suspect that none of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and

 (e) the weight of the tobacco is 100 kilograms or above.

Penalty: 2 years imprisonment or the greater of the following, or both 2 years imprisonment and the greater of the following:

 (a) 500 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(d).

 (6) Absolute liability applies to paragraph (1)(e).

 (7) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 (8) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

 (9) Subsection (1) does not apply if:

 (a) the person has permission (within the meaning of the Excise Act 1901):

 (i) to possess the tobacco; or

 (ii) to move the tobacco; or

 (b) the tobacco is covered by an authority under section 55 of that Act; or

 (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

 (10) Subsection (1) does not apply if:

 (a) any of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or

 (b) the person has reasonable grounds to suspect that any of those circumstances exist.

Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).

30850  Buying of tobacco (5 kg or above)—reasonable suspicion offence

 (1) A person commits an offence if:

 (a) the person buys a thing; and

 (b) the thing is tobacco (other than tobacco seed or tobacco plant); and

 (c) the tobacco is in Australia but not in an external Territory; and

 (d) it is reasonable to suspect that none of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; and

 (e) the weight of the tobacco is 5 kilograms or above.

Penalty: The greater of the following:

 (a) 200 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(d).

 (6) Absolute liability applies to paragraph (1)(e).

 (7) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 (8) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

 (9) Subsection (1) does not apply if:

 (a) the person has permission (within the meaning of the Excise Act 1901):

 (i) to possess the tobacco; or

 (ii) to move the tobacco; or

 (b) the tobacco is covered by an authority under section 55 of that Act; or

 (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

 (10) Subsection (1) does not apply if:

 (a) any of the following circumstances exist:

 (i) *excise duty has been paid on the tobacco;

 (ii) *customs duty has been paid on the tobacco;

 (iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

 (iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or

 (b) the person has reasonable grounds to suspect that any of those circumstances exist.

Note: A defendant bears an evidential burden in relation to the matter in subsection (10) (see subsection 13.3(3) of the Criminal Code).

30855  Matters taken to satisfy “reasonable to suspect” requirement

 (1) Without limiting paragraphs 30810(1)(d), 30815(1)(d), 30820(1)(d), 30825(1)(d), 30830(1)(d), 30835(1)(d), 30840(1)(d), 30845(1)(d) and 30850(1)(d), those paragraphs are taken to be satisfied if any of the following circumstances exist:

 (a) the tobacco is not in retail packaging that complies with the requirements in Chapter 2 of the Tobacco Plain Packaging Act 2011;

 (b) the tobacco does not comply with the requirements mentioned in sections 26 and 27 of the Tobacco Plain Packaging Act 2011;

 (c) in the case of buying or selling:

 (i) an information standard has been made under subsection 134(1) or 135(1) of Schedule 2 to the Competition and Consumer Act 2010 for tobacco (or for a particular kind of tobacco); and

 (ii) the supplier does not comply with the standard in supplying the tobacco;

 (d) if a safety standard has been made or declared under subsection 104(1) or 105(1) of Schedule 2 to the Competition and Consumer Act 2010 for tobacco (or for a particular kind of tobacco)—the tobacco does not comply with the standard;

 (e) a permanent ban or an interim ban on consumer goods in force under Part 33 of Schedule 2 to the Competition and Consumer Act 2010 applies to the tobacco;

 (f) in the case of buying or selling—the price of the tobacco, or the advertised or offered price for the tobacco, is less than the sum of the following amounts:

 (i) the lower of the amount of *excise duty or *customs duty that would apply to the tobacco, assuming that such duty were applicable to the tobacco and that no exemption or reduction of such duty were applicable;

 (ii) the amount of *GST that would apply to the sale of the tobacco, assuming that GST were applicable to the sale;

 (g) in the case of buying or selling:

 (i) a law of a State or Territory that applies to the buying or selling of the tobacco makes it unlawful to buy or sell tobacco in certain circumstances; and

 (ii) the buying or selling happens in such circumstances;

 (h) the person has not provided any of the following:

 (i) a *tax invoice indicating how the person obtained the tobacco;

 (ii) a bill of lading indicating how the person obtained the tobacco;

 (iii) a customs declaration indicating how the person obtained the tobacco;

 (i) the person:

 (i) has stated that the possession, selling or buying was engaged in on behalf of or at the request of another person; and

 (ii) has not provided information enabling the other person to be identified and located;

 (j) in the case of selling:

 (i) the *GST law requires the person to give the buyer of the tobacco a tax invoice in respect of the sale; and

 (ii) the person fails to meet that requirement;

 (k) the tobacco is tobacco leaf that:

 (i) has not been subjected to any process; or

 (ii) has been subjected only to the process of curing the leaf as stripped from the plant.

 (2) To avoid doubt, subsection (1) does not apply for the purposes of subsections 30810(10), 30815(10), 30820(10), 30825(10), 30830(10), 30835(10), 30840(10), 30845(10) and 30850(10).

Subdivision 308BFaultbased offences of possession, production and manufacture

Guide to Subdivision 308B

308105  What this Subdivision is about

This Subdivision sets out offences for the possession, manufacturing or production of tobacco of various quantities where:

 (a) the tobacco is excisable goods, tobacco seed or tobacco plant, or tobacco leaf that has not been subjected to any relevant process; and

 (b) if excise duty is payable on the tobacco, the full amount of that excise duty has not been paid.

This Subdivision sets out defences to those offences, such as where an accused person has a relevant permission or licence under excise or customs legislation.

Table of sections

308110 Possession of tobacco (500 kg or above)—faultbased offence

308115 Possession of tobacco (100 kg or above)—faultbased offence

308120 Possession of tobacco (5 kg or above)—faultbased offence

308125 Manufacture or production of tobacco (500 kg or above)—faultbased offence

308130 Manufacture or production of tobacco (100 kg or above)—faultbased offence

308135 Manufacture or production of tobacco (5 kg or above)—faultbased offence

308110  Possession of tobacco (500 kg or above)—faultbased offence

 (1) A person commits an offence if:

 (a) the person possesses a thing; and

 (b) the thing is tobacco; and

 (c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and

 (d) the tobacco is:

 (i) *excisable goods; or

 (ii) tobacco seed or tobacco plant; or

 (iii) tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and

 (e) in a case where the tobacco is excisable goods:

 (i) *excise duty is payable on the tobacco; and

 (ii) the full amount of excise duty has not been paid on the tobacco; and

 (f) the weight of the tobacco is 500 kilograms or above.

Penalty: 10 years imprisonment or the greater of the following, or both 10 years imprisonment and the greater of the following:

 (a) 1,500 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco plant or tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that:

 (i) for tobacco plant—the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (ii) for tobacco leaf—the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(f).

 (6) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

 (7) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 (8) Subsection (1) does not apply if:

 (a) the person has permission (within the meaning of the Excise Act 1901):

 (i) to possess the tobacco; or

 (ii) to move the tobacco; or

 (b) the tobacco is covered by an authority under section 55 of that Act; or

 (c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

308115  Possession of tobacco (100 kg or above)—faultbased offence

 (1) A person commits an offence if:

 (a) the person possesses a thing; and

 (b) the thing is tobacco; and

 (c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and

 (d) the tobacco is:

 (i) *excisable goods; or

 (ii) tobacco seed or tobacco plant; or

 (iii) tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and

 (e) in a case where the tobacco is excisable goods:

 (i) *excise duty is payable on the tobacco; and

 (ii) the full amount of excise duty has not been paid on the tobacco; and

 (f) the weight of the tobacco is 100 kilograms or above.

Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following:

 (a) 1,000 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco plant or tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that:

 (i) for tobacco plant—the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (ii) for tobacco leaf—the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(f).

 (6) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

 (7) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 (8) Subsection (1) does not apply if the person has permission (within the meaning of the Excise Act 1901):

 (a) to possess the tobacco; or

 (b) to move the tobacco; or

 (c) to deliver the tobacco for home consumption without entering it for that purpose.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

308120  Possession of tobacco (5 kg or above)—faultbased offence

 (1) A person commits an offence if:

 (a) the person possesses a thing; and

 (b) the thing is tobacco; and

 (c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and

 (d) the tobacco is:

 (i) *excisable goods; or

 (ii) tobacco seed or tobacco plant; or

 (iii) tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and

 (e) in a case where the tobacco is excisable goods:

 (i) *excise duty is payable on the tobacco; and

 (ii) the full amount of excise duty has not been paid on the tobacco; and

 (f) the weight of the tobacco is 5 kilograms or above.

Penalty: The greater of the following:

 (a) 500 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco plant or tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that:

 (i) for tobacco plant—the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (ii) for tobacco leaf—the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(f).

 (6) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

 (7) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

 (8) Subsection (1) does not apply if the person has permission (within the meaning of the Excise Act 1901):

 (a) to possess the tobacco; or

 (b) to move the tobacco; or

 (c) to deliver the tobacco for home consumption without entering it for that purpose.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

308125  Manufacture or production of tobacco (500 kg or above)—faultbased offence

 (1) A person commits an offence if:

 (a) the person manufactures or produces a thing; and

 (b) the thing is tobacco; and

 (c) the place in which the person manufactures or produces the tobacco is in Australia but not in an external Territory; and

 (d) the tobacco is:

 (i) *excisable goods; or

 (ii) tobacco seed or tobacco plant; or

 (iii) tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and

 (e) in a case where the tobacco is excisable goods:

 (i) *excise duty is payable on the tobacco; and

 (ii) the full amount of excise duty has not been paid on the tobacco; and

 (f) the weight of the tobacco is 500 kilograms or above.

Penalty: 10 years imprisonment or the greater of the following, or both 10 years imprisonment and the greater of the following:

 (a) 1,500 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco plant or tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that:

 (i) for tobacco plant—the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (ii) for tobacco leaf—the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(f).

 (6) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

 (7) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

308130  Manufacture or production of tobacco (100 kg or above)—faultbased offence

 (1) A person commits an offence if:

 (a) the person manufactures or produces a thing; and

 (b) the thing is tobacco; and

 (c) the place in which the person manufactures or produces the tobacco is in Australia but not in an external Territory; and

 (d) the tobacco is:

 (i) *excisable goods; or

 (ii) tobacco seed or tobacco plant; or

 (iii) tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and

 (e) in a case where the tobacco is excisable goods:

 (i) *excise duty is payable on the tobacco; and

 (ii) the full amount of excise duty has not been paid on the tobacco; and

 (f) the weight of the tobacco is 100 kilograms or above.

Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following:

 (a) 1,000 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco plant or tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that:

 (i) for tobacco plant—the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (ii) for tobacco leaf—the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(f).

 (6) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

 (7) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

308135  Manufacture or production of tobacco (5 kg or above)—faultbased offence

 (1) A person commits an offence if:

 (a) the person manufactures or produces a thing; and

 (b) the thing is tobacco; and

 (c) the place in which the person manufactures or produces the tobacco is in Australia but not in an external Territory; and

 (d) the tobacco is:

 (i) *excisable goods; or

 (ii) tobacco seed or tobacco plant; or

 (iii) tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and

 (e) in a case where the tobacco is excisable goods:

 (i) *excise duty is payable on the tobacco; and

 (ii) the full amount of excise duty has not been paid on the tobacco; and

 (f) the weight of the tobacco is 5 kilograms or above.

Penalty: The greater of the following:

 (a) 500 penalty units;

 (b) the amount mentioned in subsection (2) multiplied by 5.

 (2) For the purposes of the penalty in subsection (1), the amount is:

 (a) for tobacco (other than tobacco plant or tobacco leaf)—the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (b) for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph—the amount of excise duty that would be payable, as worked out under the regulations, assuming that:

 (i) for tobacco plant—the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (ii) for tobacco leaf—the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3); or

 (c) for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b)—nil.

 (3) For the purposes of subsection (2), the day is:

 (a) if the Court knows the day, or days, on which the offence was committed—that day, or the earliest of those days; or

 (b) otherwise—the day on which the prosecution for the offence is instituted.

 (4) Absolute liability applies to paragraph (1)(c).

 (5) Absolute liability applies to paragraph (1)(f).

 (6) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

 (a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

 (b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

 (7) Subsection (1) does not apply if:

 (a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

 (b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

 (c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

Subdivision 308COffences relating to equipment relating to the manufacture or production of tobacco

Guide to Subdivision 308C

308200  What this Subdivision is about

This Subdivision sets out offences for the possession of equipment for use in illegal manufacture or production of tobacco, or of equipment designed or adapted to manufacture or produce tobacco.

Table of sections

308205 Possession of equipment for use in illegal manufacture or production of tobacco

308210 Possession of equipment designed or adapted to manufacture or produce tobacco

308205  Possession of equipment for use in illegal manufacture or production of tobacco

 (1) A person (the first person) commits an offence if:

 (a) the first person possesses equipment at a time; and

 (b) the place in which the first person possesses the equipment is in Australia but not in an external Territory; and

 (c) the first person is reckless as to whether a particular person (whether or not the first person) will, at a later time, use the equipment to manufacture or produce tobacco; and

 (d) the first person intends to possess the equipment at that later time; and

 (e) that manufacture or production by that particular person at that later time would constitute an offence against any of the following provisions:

 (i) section 308125, 308130 or 308135;

 (ii) section 25 or 28 of the Excise Act 1901.

Penalty: Imprisonment for 12 months or 120 penalty units, or both.

 (2) Absolute liability applies to paragraph (1)(b).

 (3) Absolute liability applies to paragraph (1)(e).

 (4) Subsection (1) does not apply if the first person has no reasonable ground to consider that the manufacture or production by the particular person at the later time would constitute an offence against any of the provisions mentioned in paragraph (1)(e).

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

308210  Possession of equipment designed or adapted to manufacture or produce tobacco

 (1) A person commits an offence if:

 (a) the person possesses equipment at a time; and

 (b) the place in which the person possesses the equipment is in Australia but not in an external Territory; and

 (c) a reasonable person, with a full knowledge and understanding of the functioning of the equipment, would conclude that the equipment is designed or adapted specifically to manufacture or produce tobacco; and

 (d) on the assumption that, at the time mentioned in paragraph (a), the person used the equipment to manufacture or produce tobacco, the person would commit an offence against any of the following provisions:

 (i) section 308125, 308130 or 308135;

 (ii) section 25 or 28 of the Excise Act 1901.

Penalty: Imprisonment for 12 months or 120 penalty units, or both.

 (2) Absolute liability applies to paragraph (1)(b).

 (3) Absolute liability applies to paragraph (1)(d).

 (4) Subsection (1) does not apply if the person possesses the equipment:

 (a) for the sole purpose of the disposal or destruction of the equipment; or

 (b) for the sole purpose of the export of the equipment.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

 (5) Subsection (1) does not apply if:

 (a) the person possesses the equipment on behalf of another person; and

 (b) assuming that, at the time mentioned in paragraph (a), the other person used the equipment in Australia (but not in an external Territory) to manufacture or produce tobacco, the other person would not commit an offence under any of the following provisions:

 (i) section 308125,308130 or 308135;

 (ii) section 25 or 28 of the Excise Act 1901.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Subdivision 308EOther provisions

Guide to Subdivision 308E

308500  What this Subdivision is about

This Subdivision sets out various miscellaneous rules that relate to the offences in other provisions of this Division, including rules that treat certain things as tobacco and certain matters as possession.

Table of sections

308505 Things treated as tobacco

308510 Matters treated as possession

308515 Where excise duty or customs duty is treated as not payable for the purpose of the reasonable suspicion offences

308520 Section 8ZD does not apply to this Division

308505  Things treated as tobacco

 (1) For the purposes of this Division, treat as tobacco any thing (including moisture) added to the tobacco leaf during manufacturing or processing.

 (2) To avoid doubt, for the purposes of this Division:

 (a) treat tobacco seed, tobacco plant (whether or not in the ground) and tobacco leaf as tobacco; and

 (b) treat cigars, cigarettes and snuff as tobacco.

308510  Matters treated as possession

 (1) For the purposes of this Division, treat a person as possessing a thing if the person:

 (a) receives or obtains possession of the thing; or

 (b) has control over the disposition of the thing (whether or not the thing is in the custody of the person); or

 (c) has joint possession of the thing with one or more other persons.

 (2) To avoid doubt, subsection (1) does not limit, for the purposes of this Division, when a person possesses a thing.

 (3) For the purposes of this Division, a person may possess tobacco plant even if the plant is in the ground.

308515  Where excise duty or customs duty is treated as not payable for the purpose of the reasonable suspicion offences

 (1) For the purposes of Subdivision 308A, treat *excise duty as not payable on tobacco because of an exemption under a law of the Commonwealth if:

 (a) a “free” rate of *excise duty applies on the tobacco; or

 (b) there is a remission of all of the excise duty payable on the tobacco.

 (2) For the purposes of Subdivision 308A, treat *customs duty as not payable on tobacco because of an exemption under a law of the Commonwealth if:

 (a) a “free” rate of *customs duty applies on the tobacco; or

 (b) there is a remission of all of the customs duty payable on the tobacco.

 (3) To avoid doubt, subsections (1) and (2) do not limit, for the purposes of Subdivision 308A, when *excise duty or *customs duty is not payable on tobacco because of an exemption under a law of the Commonwealth.

308520  Section 8ZD does not apply to this Division

  Section 8ZD does not apply for the purposes of this Division.

Part 450Release from particular liabilities

Division 340Commissioner’s power in cases of hardship

Guide to Division 340

3401  What this Division is about

The Commissioner may release you from a particular liability that you have incurred if you are an individual, or a trustee of the estate of a deceased person, and satisfying the liability would cause serious hardship.

Table of sections

Operative provisions

3405 Release from particular liabilities in cases of serious hardship

34010 Liabilities to which this section applies

34015 Commissioner may take action to give effect to a release decision

34020 Extinguishing your liability to pay a fringe benefits tax instalment if you are released

34025 Extinguishing your liability to pay a PAYG instalment if you are released

Operative provisions

3405  Release from particular liabilities in cases of serious hardship

Applying for release

 (1) You may apply to the Commissioner to release you, in whole or in part, from a liability of yours if section 34010 applies to the liability.

 (2) The application must be in the *approved form.

 (3) The Commissioner may release you, in whole or in part, from the liability if you are an entity specified in the column headed “Entity” of the following table and the condition specified in the column headed “Condition” of the table is satisfied.

 

Entity and condition

Item

Entity

Condition

1

an individual

you would suffer serious hardship if you were required to satisfy the liability

2

a trustee of the estate of a deceased individual

the dependants of the deceased individual would suffer serious hardship if you were required to satisfy the liability

Effect of the Commissioner’s decision

 (4) If the Commissioner:

 (a) refuses to release you in whole from the liability; or

 (b) releases you in part from the liability;

nothing in this section prevents you from making a further application or applications under subsection (1) in relation to the liability.

Notification of the Commissioner’s decision

 (5) The Commissioner must notify you in writing of the Commissioner’s decision within 28 days after making the decision.

 (6) A failure to comply with subsection (5) does not affect the validity of the Commissioner’s decision.

Objections against the Commissioner’s decision

 (7) If you are dissatisfied with the Commissioner’s decision, you may object against the decision in the manner set out in Part IVC.

34010  Liabilities to which this section applies

 (1) This section applies to a liability if it is a liability of the following kind:

 (a) fringe benefits tax;

 (b) an instalment of fringe benefits tax;

 (c) *Medicare levy;

 (d) *Medicare levy (fringe benefits) surcharge;

 (e) a *PAYG instalment.

 (2) This section also applies to a liability if it is a liability that is specified in the column headed “Liabilities” of the following table and the liability is a liability under a provision or provisions of an Act specified in the column headed “Provision(s)” of the table:

 

Liabilities and provision(s)

Item

Liabilities

Provision(s)

1

additional tax

(a) section 93 or 112B of the Fringe Benefits Tax Assessment Act 1986; or

(b) former section 163B or subsection 221YDB(1), (1AAA), (1AA) or (1ABA) or Part VII of the Income Tax Assessment Act 1936

2

administrative penalty in relation to fringe benefits tax or *tax

Part 425 in this Schedule

3

general interest charge

(a) former section 163AA, former section 170AA, former subsection 204(3) or former subsection 221AZMAA(1), 221AZP(1), 221YD(3) or 221YDB(3) of the Income Tax Assessment Act 1936; or

(aa) section 515 in the Income Tax Assessment Act 1997; or

(b) section 4580 or 45620 or subsection 45230(2), 45232(2), 45235(2) or 45235(3) in this Schedule

3A

shortfall interest charge

Division 280 in this Schedule

4

interest

section 102AAM of the Income Tax Assessment Act 1936

5

penalty

former section 163A of the Income Tax Assessment Act 1936

6

*tax

(a) section 128B of the Income Tax Assessment Act 1936; or

(b) section 128V of the Income Tax Assessment Act 1936; or

(c) section 41 of the Income Tax Assessment Act 1997; or

(d) section 840805 of the Income Tax Assessment Act 1997; or

(da) section 840905 of the Income Tax Assessment Act 1997; or

(e) section 840805 of the Income Tax (Transitional Provisions) Act 1997

34015  Commissioner may take action to give effect to a release decision

 (1) If the Commissioner decides to release you from a liability to which section 34010 applies, the Commissioner may take such action as is necessary to give effect to the decision.

 (2) Without limiting subsection (1), the Commissioner may amend an assessment within the meaning of the following provisions:

 (a) subsection 6(1) of the Income Tax Assessment Act 1936;

 (b) subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986;

by making such alterations or additions to the assessment as the Commissioner thinks necessary.

 (3) Subsection (2) does not limit the power of the Commissioner to amend the assessment in accordance with any other provision of the Income Tax Assessment Act 1936 or the Fringe Benefits Tax Assessment Act 1986.

34020  Extinguishing your liability to pay a fringe benefits tax instalment if you are released

 (1) This section applies if the Commissioner releases you from a liability to pay an instalment of fringe benefits tax.

 (2) If your liability to pay the instalment is released in whole, you are taken, for the purposes of Division 2 of Part VII of the Fringe Benefits Tax Assessment Act 1986, not to be liable to pay the instalment.

Note: This means that for the purposes of section 105 of that Act you are not entitled to a credit for the instalment.

 (3) If your liability to pay the instalment is released in part, you are taken, for the purposes of Division 2 of Part VII of the Fringe Benefits Tax Assessment Act 1986, to be liable to pay the instalment to the extent to which your liability has not been released.

Note: This means that for the purposes of section 105 of that Act you are entitled to a credit for the instalment to the extent to which your liability to pay the instalment has not been released.

34025  Extinguishing your liability to pay a PAYG instalment if you are released

 (1) This section applies if the Commissioner releases you from a liability to pay a *PAYG instalment.

 (2) If your liability to pay the instalment is released in whole, you are taken, for the purposes of Division 45 of Part 210, not to be liable to pay the instalment.

Note: This means that for the purposes of section 4530 you are not entitled to a credit for the instalment.

 (3) If your liability to pay the instalment is released in part, you are taken, for the purposes of Division 45 of Part 210, to be liable to pay the instalment to the extent to which your liability has not been released.

Note: This means that for the purposes of section 4530 you are entitled to a credit for the instalment to the extent to which your liability to pay the instalment has not been released.

Division 342Commissioner’s power relating to proceeds of crime proceedings

Table of Subdivisions

 Guide to Division 342

342A Power to waive right to payment of taxrelated liabilities

Guide to Division 342

3421  What this Division is about

To facilitate the starting, conduct and ending of proceedings under the Proceeds of Crime Act 2002, the Commissioner may waive the right to payment of certain taxrelated liabilities.

Subdivision 342APower to waive right to payment of taxrelated liabilities

Table of sections

3425 Object of this Subdivision

34210 Power to waive right to payment of taxrelated liability

3425  Object of this Subdivision

  The object of this Subdivision is to facilitate the starting, conduct and ending of proceedings under the Proceeds of Crime Act 2002 by allowing the Commissioner to waive the right to payment of certain liabilities to the Commonwealth arising under *taxation laws.

Note: The Commissioner may also exercise other powers so as to facilitate the starting, conduct and ending of proceedings under the Proceeds of Crime Act 2002. Examples of those other powers include:

(a) the power under section 25510 to defer the time a taxrelated liability is due and payable; and

(b) the power under section 8AAG to remit general interest charge.

34210  Power to waive right to payment of taxrelated liability

 (1) The Commissioner may waive the Commonwealth’s right to payment of all or part of a *taxrelated liability if the Commissioner is satisfied that:

 (a) the waiver will facilitate the starting, conduct or ending (by settlement or otherwise) of proceedings under the Proceeds of Crime Act 2002; and

 (b) the liability is connected with circumstances associated with the proceedings.

Note: The Commissioner may waive the right to payment only after the liability has arisen, but may do so whether or not the liability is due and payable.

Example: A liability is connected with circumstances associated with the proceedings if the liability arose because of activities constituting an offence to which the proceedings relate.

 (2) In deciding whether to waive the right, the Commissioner must consider:

 (a) the amount the Commonwealth will forgo as a result of the waiver and the time the Commonwealth could reasonably be expected to receive that amount apart from the waiver; and

 (b) the amount the Commonwealth could reasonably be expected to receive as a result of the proceedings and the time the Commonwealth could reasonably be expected to receive that amount.

 (3) Subsection (2) does not limit the matters that the Commissioner may consider in making the decision.

Extended operation of this section

 (4) This section (except this subsection) applies in relation to a pecuniary liability to the Commonwealth that arises directly under a *taxation law, but is not a *taxrelated liability, in the same way as this section applies in relation to a taxrelated liability.

Example: This section applies to a civil penalty under Division 290 (which penalises certain conduct involving promotion of schemes) in the same way as this section applies to a taxrelated liability.

Part 490Evidence

Division 350Evidence

Table of Subdivisions

 Guide to Division 350

350A Evidence

Guide to Division 350

3501  What this Division is about

The rules in this Division deal with the evidentiary effect of official tax documents for the purposes of taxation laws.

This Division also deals with procedural and evidentiary matters relating to proceedings to recover an amount of a taxrelated liability.

Subdivision 350AEvidence

Table of sections

3505 Application of Subdivision

35010 Evidence

35012 Prima facie evidence—particulars stated in evidentiary certificate

35015 Judicial notice of signature

35020 Certain statements or averments in proceedings to recover taxrelated liabilities

35025 Evidence by affidavit in proceedings to recover taxrelated liabilities

3505  Application of Subdivision

  This Subdivision applies in relation to all *taxation laws.

35010  Evidence

Conclusive evidence

 (1) The following table has effect:

 

Conclusive evidence

Item

Column 1

The production of …

Column 2

is conclusive evidence that …

1

(a) a Gazette containing a notice purporting to be issued by the Commissioner for the purposes of a *taxation law; or

(b) a document that:

(i) is under the hand of the Commissioner, a *Second Commissioner, a *Deputy Commissioner or a delegate of the Commissioner; and

(ii) purports to be a copy of, or extract from, a document issued by the Commissioner, a Second Commissioner, a Deputy Commissioner or a delegate of the Commissioner for the purposes of a taxation law;

the notice or document was so issued.

2

a notice of *assessment under a *taxation law;

(a) the assessment was properly made; and

(b) except in proceedings under Part IVC of this Act on a review or appeal relating to the assessment—the amounts and particulars of the assessment are correct.

3

a notice under any of the following:

(a) section 18140 in this Schedule;

(b) section 102UR, 177EA or 177EB of the Income Tax Assessment Act 1936;

(c) section 27190 in Schedule 2F to that Act;

(a) the notice was properly given; and

(b) except in proceedings under Part IVC of this Act on a review or appeal relating to the notice—the amounts and particulars of the notice are correct.

4

a declaration under:

(a) subsection 16540(1) or 16545(3) of the *GST Act; or

(b) subsection 7540(1) or 7545(3) of the Fuel Tax Act 2006;

(a) the declaration was properly made; and

(b) except in proceedings under Part IVC of this Act on a review or appeal relating to the declaration—the amounts and particulars of the declaration are correct.

5

a *public ruling or *private ruling;

the ruling was properly made.

Prima facie evidence

 (3) The production of a certificate that:

 (a) is signed by the Commissioner, a *Second Commissioner, a *Deputy Commissioner or a delegate of the Commissioner; and

 (b) states that, from the time specified in the certificate, an amount was payable under a *taxation law (whether to or by the Commissioner);

is prima facie evidence that:

 (c) the amount is payable from that time; and

 (d) the particulars stated in the certificate are correct.

 (3A) A document that is provided to the Commissioner under a *taxation law, and that purports to be made or signed by or on behalf of an entity, is prima facie evidence that the document was made by the entity or with the authority of the entity.

Signed copies are evidence

 (4) The production of a document that:

 (a) appears to be a copy of, or extract from, any document (the original document) made or given by or to an entity for the purposes of a *taxation law; and

 (b) is signed by the Commissioner, a *Second Commissioner, a *Deputy Commissioner or a delegate of the Commissioner;

is evidence of a matter to the same extent as the original document would have been evidence of the matter.

35012  Prima facie evidence—particulars stated in evidentiary certificate

 (1) Without limiting subsection 35010(3), the particulars that may be stated in a certificate under that subsection include the matters in subsections (2) and (3) of this section.

 (2) The certificate may state:

 (a) that a person named in the certificate has a *taxrelated liability; or

 (b) that an *assessment relating to a taxrelated liability has been made, or is taken to have been made, under a *taxation law; or

 (c) that notice of an assessment, or any other notice required to be served on a person in respect of an amount of a taxrelated liability, was, or is taken to have been, served on the person under a *taxation law; or

 (d) that the particulars of a notice covered by paragraph (c) are as stated in the certificate; or

 (e) that a sum specified in the certificate is, as at the date specified in the certificate, a debt due and payable by a person to the Commonwealth.

 (3) The certificate may state:

 (a) that a *foreign revenue claim for an amount specified in the certificate has been made by the competent authority under the relevant international agreement; or

 (b) that the relevant requirements of the relevant international agreement have been complied with in relation to the foreign revenue claim; or

 (c) that the claim was registered under Division 263 on the date specified in the certificate; or

 (d) that, as at the date of the certificate, the Commissioner has or has not received advice from the competent authority under the relevant international agreement about the reduction or discharge of an amount to be recovered under the claim; or

 (e) that the particulars of any reduction or discharge of an amount to be recovered under the claim are as specified in the certificate.

35015  Judicial notice of signature

  All courts, and all persons having by law or consent of parties authority to hear, receive and examine evidence, must take judicial notice of the signature of every person who is or has been:

 (a) the Commissioner; or

 (b) a *Second Commissioner; or

 (c) a *Deputy Commissioner; or

 (d) a delegate of the Commissioner;

if the signature is attached or appended to an official document for the purposes of a *taxation law.

35020  Certain statements or averments in proceedings to recover taxrelated liabilities

 (1) In a proceeding to recover an amount of a *taxrelated liability, a statement or averment about a matter in the plaintiff’s complaint, claim or declaration is prima facie evidence of the matter.

 (2) This section applies even if the matter is a mixed question of law and fact. However, the statement or averment is prima facie evidence of the fact only.

 (3) This section applies even if evidence is given in support or rebuttal of the matter or of any other matter.

 (4) Any evidence given in support or rebuttal of the matter stated or averred must be considered on its merits. This section does not increase or diminish the credibility or probative value of the evidence.

 (5) This section does not lessen or affect any onus of proof otherwise falling on a defendant.

35025  Evidence by affidavit in proceedings to recover taxrelated liabilities

  In a proceeding to recover an amount of a *taxrelated liability:

 (a) a person may give evidence by affidavit; and

 (b) the court may require the person to attend before it:

 (i) to be crossexamined on that evidence; or

 (ii) to give other evidence relating to the proceedings.

Chapter 5Administration

Part 51The Australian Taxation Office

Division 352Commissioner’s reporting obligations

Table of Subdivisions

 Guide to Division 352

352A Accountability of the Commissioner in respect of indirect tax laws

352C Reporting on working holiday makers

Guide to Division 352

3521  What this Division is about

This Division requires the Commissioner to prepare annual reports on the working of the indirect tax laws and on working holiday makers.

Subdivision 352AAccountability of the Commissioner in respect of indirect tax laws

Table of sections

3525 Commissioner must prepare annual report on indirect tax laws

3525  Commissioner must prepare annual report on indirect tax laws

 (1) As soon as practicable after 30 June in each year, the Commissioner must prepare and give to the Minister a report on the working of the *indirect tax laws during the year ending on that 30 June.

 (2) The report must include a report on any breaches or evasions of the *indirect tax laws that the Commissioner knows about.

 (3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

Subdivision 352CReporting on working holiday makers

Table of sections

35225 Commissioner must prepare annual report on working holiday makers

35225  Commissioner must prepare annual report on working holiday makers

 (1) As soon as practicable after 30 June in each year, the Commissioner must prepare and give to the Minister a report relating to:

 (a) the taxation of *working holiday makers; and

 (b) the registration process referred to in sections 16146 to 16148.

 (2) Without limiting subsection (1), the report must include statistics and information derived by the Commissioner from that registration process.

 (3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

Division 353Powers to obtain information and evidence

Table of Subdivisions

 Guide to Division 353

353A Powers to obtain information and evidence

353B Powers to obtain information and evidence from overseas

Guide to Division 353

3531  What this Division is about

This Division gives the Commissioner powers to obtain information and evidence.

Subdivision 353APowers to obtain information and evidence

Table of sections

35310 Commissioner’s power

35315 Access to premises, documents etc.

35320 Checking status of specifically listed deductible gift recipients

35310  Commissioner’s power

 (1) The Commissioner may by notice in writing require you to do all or any of the following:

 (a) to give the Commissioner any information that the Commissioner requires for the purpose of the administration or operation of a *taxation law;

 (b) to attend and give evidence before the Commissioner, or an individual authorised by the Commissioner, for the purpose of the administration or operation of a taxation law;

 (c) to produce to the Commissioner any documents in your custody or under your control for the purpose of the administration or operation of a taxation law.

Note: Failing to comply with a requirement can be an offence under section 8C or 8D.

 (2) The Commissioner may require the information or evidence:

 (a) to be given on oath or affirmation; and

 (b) to be given orally or in writing.

For that purpose, the Commissioner or the officer may administer an oath or affirmation.

 (3) The regulations may prescribe scales of expenses to be allowed to entities required to attend before the Commissioner or the officer.

35315  Access to premises, documents etc.

 (1) For the purposes of a *taxation law, the Commissioner, or an individual authorised by the Commissioner for the purposes of this section:

 (a) may at all reasonable times enter and remain on any land, premises or place; and

 (b) is entitled to full and free access at all reasonable times to any documents, goods or other property; and

 (c) may inspect, examine, make copies of, or take extracts from, any documents; and

 (d) may inspect, examine, count, measure, weigh, gauge, test or analyse any goods or other property and, to that end, take samples.

 (2) An individual authorised by the Commissioner for the purposes of this section is not entitled to enter or remain on any land, premises or place if, after having been requested by the occupier to produce proof of his or her authority, the individual does not produce an authority signed by the Commissioner stating that the individual is authorised to exercise powers under this section.

 (3) You commit an offence if:

 (a) you are the occupier of land, premises or a place; and

 (b) an individual enters, or proposes to enter, the land, premises or place under this section; and

 (c) the individual is the Commissioner or authorised by the Commissioner for the purposes of this section; and

 (d) you do not provide the individual with all reasonable facilities and assistance for the effective exercise of powers under this section.

Penalty: 30 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

 (4) Strict liability applies to paragraphs (3)(a) and (c).

Note: For strict liability, see section 6.1 of the Criminal Code.

35320  Checking status of specifically listed deductible gift recipients

 (1) The Commissioner may require a *deductible gift recipient covered by this section to give the Commissioner information or a document that is relevant to the deductible gift recipient’s status as a deductible gift recipient. The deductible gift recipient must comply with the requirement.

Note: Failure to comply with this subsection is an offence against section 8C.

 (2) If the Commissioner is satisfied of any of the matters set out in subsection (4) in relation to a *deductible gift recipient covered by this section, the Commissioner must, within 28 days, give written notice to the Minister about that fact.

 (3) The Minister may only disclose information provided under subsection (2) for a purpose relating to the removal of the name of the *deductible gift recipient from Division 30 of the Income Tax Assessment Act 1997.

 (4) The matters are as follows:

 (a) the *deductible gift recipient fails or ceases to use gifts, contributions or money received solely for the principal purpose of the relevant fund, authority or institution;

 (b) there is a change in the principal purpose of the relevant fund, authority or institution;

 (c) the deductible gift recipient fails or ceases to comply with any rules or conditions made by the Prime Minister or any other Minister relating to the recipient being or becoming a deductible gift recipient.

 (5) The requirement in subsection (1):

 (a) is to be made by notice in writing to the *deductible gift recipient; and

 (b) may ask the deductible gift recipient to give the information in writing; and

 (c) must specify:

 (i) the information or document the deductible gift recipient is to give; and

 (ii) the period within which the deductible gift recipient is to give the information or document.

The period specified under subparagraph (c)(ii) must end at least 28 days after the notice is given.

 (6) This section covers *deductible gift recipients, other than:

 (a) an entity or *government entity that is endorsed under Subdivision 30BA of the Income Tax Assessment Act 1997 as a deductible gift recipient; and

 (b) an entity or government entity that is endorsed under that Subdivision as a deductible gift recipient for the operation of a fund, authority or institution.

 (7) In a prosecution of a person for an offence against section 8C of this Act because of this section as it applies because of Division 444, it is a defence if the person proves that the person:

 (a) did not aid, abet, counsel or procure the act or omission because of which the offence is taken to have been committed; and

 (b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission because of which the offence is taken to have been committed.

Subdivision 353BPowers to obtain information and evidence from overseas

Table of sections

35325 Offshore information notices

35330 Offshore information notices—consequence of not complying

35325  Offshore information notices

 (1) The Commissioner may, by notice in writing (an offshore information notice) given to you, request you to do all or any of the following:

 (a) to give the Commissioner any information that the Commissioner reasonably believes is:

 (i) relevant to the *assessment of a *taxrelated liability of yours; and

 (ii) *offshore information;

 (b) to produce to the Commissioner any documents that the Commissioner reasonably believes are:

 (i) relevant to the assessment of a taxrelated liability of yours; and

 (ii) *offshore documents;

 (c) to make copies of any documents the Commissioner could request you to produce under paragraph (b), and to produce those copies to the Commissioner.

 (2) An offshore information notice:

 (a) must specify a period, of at least 90 days after it is given to you, within which you are to give the information or produce the documents or copies; and

 (b) must set out the effect of section 35330; and

 (c) may set out how the request is to be complied with; and

 (d) may be included in the same document as a notice under section 35310.

A notice is not invalid merely because it does not comply with paragraph (b).

 (3) The Commissioner may, by notice in writing, extend the period within which you are to give the information or produce the documents or copies, if, before the end of that period, you apply for the extension in the *approved form.

 (4) If the Commissioner does not notify you, in writing, before the end of the period of the Commissioner’s decision on an application you make under subsection (3), then the period is extended until the day on which the Commissioner so notifies you.

 (5) An offshore information notice may be varied or revoked in accordance with subsection 33(3) of the Acts Interpretation Act 1901, however a variation:

 (a) must not have the effect of shortening the period within which you must give particular *offshore information or produce particular *offshore documents or copies; and

 (b) must not have the effect that the period within which you must give particular offshore information, or produce particular offshore documents or copies, is less than 90 days.

 (6) Nothing in this section affects the operation of section 35310 and nothing in that section affects the operation of this section.

 (7) Offshore information is any information that is one or more of the following:

 (a) within the knowledge (whether exclusive or otherwise) of an entity outside Australia;

 (b) recorded (whether exclusively or otherwise) in a document outside Australia;

 (c) stored (whether exclusively or otherwise) by any means whatsoever outside Australia.

 (8) An offshore document is any document that is outside Australia (whether or not copies are in Australia or, if the documents are copies of other documents, whether or not those other documents are in Australia).

35330  Offshore information notices—consequence of not complying

 (1) Section 8C does not apply to a request set out in an offshore information notice under section 35325.

 (2) If you refuse or fail to comply with a request set out in an offshore information notice (including a request you are not able to comply with), the following are not admissible in evidence in proceedings under Part IVC on a review or appeal relating to a *taxrelated liability of yours, except with the consent of the Commissioner:

 (a) the *offshore information;

 (b) the contents of the *offshore documents or copies.

 (3) In deciding whether to consent, the Commissioner must:

 (a) have regard to whether, because of the absence of that information or those documents or copies, the remaining information or documents that are relevant to the proceedings are, or are likely to be, misleading; and

 (b) not have regard to the consequences (whether direct or indirect) of an obligation arising under a *foreign law relating to the secrecy of the information, documents or copies; and

 (c) consent if refusal would have the effect, for the purposes of the Constitution, of making any tax or penalty incontestable.

 (4) If, before the hearing of a proceeding under Part IVC on a review or appeal relating to a *taxrelated liability of yours, the Commissioner forms the views that:

 (a) you have refused or failed to comply with a request under section 35325; and

 (b) the Commissioner is unlikely to give the consent mentioned in subsection (3);

the Commissioner must, by notice in writing, inform you that the Commissioner has formed those views. However, a failure to do so does not affect the validity of the Commissioner’s decision under subsection (3).

Division 354Power to obtain information about rights or interests in property

3545  Power to obtain information about rights or interests in property

 (1) The Commissioner may by notice in writing require you to give the Commissioner information required for the purpose of the administration or operation of a *taxation law if:

 (a) both of the following apply:

 (i) you have a legal or equitable interest in real or personal property;

 (ii) the information is about any other *property right or interest in the property; or

 (b) both of the following apply:

 (i) the Commissioner is satisfied that you may have information about a property right or interest in property;

 (ii) the information is about the property right or interest.

Note: Failing to comply with a requirement may be an offence under section 8C.

 (2) A property right or interest is:

 (a) a legal or equitable interest in the property; or

 (b) a right, power or privilege in connection with the property;

whether present or future and whether vested or contingent.

Content of notice

 (3) The notice must specify the following:

 (a) the property to which the notice applies;

 (b) the information required;

 (c) the period within which the information must be given;

 (d) the manner of giving the information.

 (4) The information required may include the following:

 (a) details of your interest in the property;

 (b) details (including name and address) of any person who has a *property right or interest in the property;

 (c) details of any class of person who has a property right or interest in the property;

 (d) details of each property right or interest in the property, including:

 (i) the nature and extent of the right or interest; and

 (ii) the circumstances giving rise to the right or interest.

 (5) If:

 (a) you are given a notice under paragraph (1)(a); and

 (b) you do not have the information required but another person has the information;

you must make all reasonable efforts to obtain the information.

 (6) To avoid doubt, you may be required as a result of a notice under this section to create a document giving the information required.

 (7) The period specified in the notice must be:

 (a) at least 14 days after the notice is given (except if paragraph (b) applies); or

 (b) if the Commissioner is satisfied that a shorter period is necessary—the shorter period.

Relationship with section 35310

 (8) Nothing in this section affects the operation of section 35310 and nothing in that section affects the operation of this section.

Division 355Confidentiality of taxpayer information

Table of Subdivisions

 Guide to Division 355

355A Objects and application of Division

355B Disclosure of protected information by taxation officers

355C Ondisclosure of protected information by other people

355D Disclosure of protected information that has been unlawfully acquired

355E Other matters

Guide to Division 355

3551  What this Division is about

The disclosure of information about the tax affairs of a particular entity is prohibited, except in certain specified circumstances.

Those exceptions are designed having regard to the principle that disclosure of information should be permitted only if the public benefit derived from the disclosure outweighs the entity’s privacy.

Note: This Division contains the main circumstances in which protected tax information can be disclosed. A number of other Commonwealth laws also allow for the disclosure of, or access to, such information in limited circumstances. Some of these other laws are as follows:

Subdivision 355AObjects and application of Division

Table of sections

35510 Objects of Division

35515 Application of Division

35510  Objects of Division

  The objects of this Division are:

 (a) to protect the confidentiality of taxpayers’ affairs by imposing strict obligations on *taxation officers (and others who acquire protected tax information), and so encourage taxpayers to provide correct information to the Commissioner; and

 (b) to facilitate efficient and effective government administration and law enforcement by allowing disclosures of protected tax information for specific, appropriate purposes.

35515  Application of Division

  This Division applies in relation to the following entities in the same way as it applies in relation to *taxation officers:

 (a) an entity engaged to provide services relating to the Australian Taxation Office;

 (b) an individual employed by, or otherwise performing services for, an entity referred to in paragraph (a);

 (c) an individual:

 (i) appointed or employed by, or performing services for, the Commonwealth or an authority of the Commonwealth; and

 (ii) performing functions or exercising powers under or for the purposes of a *taxation law.

Subdivision 355BDisclosure of protected information by taxation officers

Guide to Subdivision 355B

35520  What this Subdivision is about

The main protection for taxpayer confidentiality is in this Subdivision. It is an offence for taxation officers to disclose tax information that identifies an entity, or is reasonably capable of being used to identify an entity, except in certain specified circumstances.

Table of sections

Operative provisions

35525 Offence—disclosure of protected information by taxation officers

35530 Meaning of protected information and taxation officer

35535 Consent is not a defence

35540 Generality of Subdivision not limited

35545 Exception—disclosure of publicly available information

35547 Exception—disclosure of periodic aggregate tax information

35550 Exception—disclosure in performing duties

35555 Exception—disclosure to Ministers

35560 Limits on disclosure to Ministers

35565 Exception—disclosure for other government purposes

35566 Major disaster support programs

35567 Exception—disclosure to registrars

35570 Exception—disclosure for law enforcement and related purposes

35572 Exception—disclosure to credit reporting bureaus

35575 Limits on disclosure to courts and tribunals

Operative provisions

35525  Offence—disclosure of protected information by taxation officers

 (1) An entity commits an offence if:

 (a) the entity is or was a *taxation officer; and

 (b) the entity:

 (i) makes a record of information; or

 (ii) discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection (2)) or to a court or tribunal; and

 (c) the information is *protected information; and

 (d) the information was acquired by the firstmentioned entity as a taxation officer.

Penalty: Imprisonment for 2 years.

 (2) An entity (the covered entity) is covered by this subsection in relation to *protected information that relates to another entity (the primary entity) if:

 (a) the covered entity is the primary entity’s *registered tax agent or BAS agent; or

 (b) the covered entity is a *legal practitioner representing the primary entity in relation to the primary entity’s affairs relating to one or more *taxation laws; or

 (ba) the covered entity is a public officer (within the meaning of section 252 or 252A of the Income Tax Assessment Act 1936) of the primary entity; or

 (c) the primary entity is an *incapacitated entity and the covered entity is a *representative of the incapacitated entity; or

 (d) the covered entity is the primary entity’s *legal personal representative; or

 (e) the covered entity is the primary entity’s guardian where the primary entity is a minor or suffers from mental incapacity; or

 (f) the covered entity and the primary entity are members of the same *consolidated group or *MEC group; or

 (g) the covered entity is a representative of the primary entity who has been nominated by the primary entity in the *approved form to act on that entity’s behalf with respect to protected information; or

 (h) the covered entity is the registered tax agent or BAS agent of another covered entity mentioned in paragraph (c), (d) or (e) in relation to the relevant primary entity mentioned in those paragraphs; or

 (i) the covered entity is a legal practitioner representing another covered entity mentioned in paragraph (c), (d) or (e) in relation to the affairs of the relevant primary entity mentioned in those paragraphs relating to one or more taxation laws.

35530  Meaning of protected information and taxation officer

 (1) Protected information means information that:

 (a) was disclosed or obtained under or for the purposes of a law that was a *taxation law (other than the Tax Agent Services Act 2009) when the information was disclosed or obtained; and

 (b) relates to the affairs of an entity; and

 (c) identifies, or is reasonably capable of being used to identify, the entity.

Note: Tax file numbers do not constitute protected information because they are not, by themselves, reasonably capable of being used to identify an entity. For offences relating to tax file numbers, see Subdivision BA of Division 2 of Part III.

 (2) Taxation officer means:

 (a) the Commissioner or a *Second Commissioner; or

 (b) an individual appointed or engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office.

Note: This Division applies to certain other entities as if they were taxation officers: see section 35515.

35535  Consent is not a defence

  It is not a defence to a prosecution for an offence against section 35525 that the entity to whom the information relates has consented to:

 (a) the making of the record; or

 (b) the disclosure of the information.

35540  Generality of Subdivision not limited

  Except as provided by section 35560, nothing in this Subdivision limits the generality of anything else in it.

Note: This means that each provision in this Subdivision (other than section 35560) has an independent operation and is not to be interpreted by reference to any other provision within the Subdivision.

35545  Exception—disclosure of publicly available information

  Section 35525 does not apply if the information was already available to the public (otherwise than as a result of a contravention of section 35525, 355155 or 355265).

Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.

35547  Exception—disclosure of periodic aggregate tax information

 (1) Section 35525 does not apply if the information is *periodic aggregate tax information.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

 (2) Periodic aggregate tax information is information that:

 (a) specifies the total amount collected or assessed by the Commissioner during a period, or predicted by the Commissioner to be collected or assessed by the Commissioner during a period, in respect of:

 (i) tax imposed under a particular Act or particular Acts; or

 (ii) if an Act imposes duties of excise—a type of duty of excise imposed under that Act; or

 (iii) if an Act imposes duties of customs—a type of duty of customs imposed under that Act; and

 (b) does not identify, nor is reasonably capable of being used to identify, an individual.

35550  Exception—disclosure in performing duties

 (1) Section 35525 does not apply if:

 (a) the entity is a *taxation officer; and

 (b) the record or disclosure is made in performing the entity’s duties as a taxation officer.

Note 1: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

Note 2: An example of a duty mentioned in paragraph (b) is the duty to make available information under sections 3C, 3E and 3H.

 (2) Without limiting subsection (1), records or disclosures made in performing duties as a *taxation officer include those mentioned in the following table:

 

Records or disclosures in performing duties

Item

The record is made for or the disclosure is to ...

and the record or disclosure ...

1

any entity, court or tribunal

is for the purpose of administering any *taxation law.

2

any entity, court or tribunal

is for the purpose of the making, or proposed or possible making, of an order under the Proceeds of Crime Act 2002 that is related to a *taxation law.

3

any entity, court or tribunal

is for the purpose of criminal, civil or administrative proceedings (including merits review or judicial review) that are related to a *taxation law.

4

any entity

is for the purpose of responding to a request for a statement of reasons under the Administrative Decisions (Judicial Review) Act 1977 in relation to a decision made under a *taxation law.

5

any entity

is for the purpose of:

(a) determining whether to make an ex gratia payment; or

(b) administering such a payment;

in connection with administering a *taxation law.

6

any entity

is for the purpose of enabling the entity to understand or comply with its obligations under a *taxation law.

7

the Secretary of the Department

(a) is of information that does not include the name, contact details or *ABN of any entity; and

(b) is for the purpose of:

(i) the design of a *taxation law; or

(ii) the amendment of a taxation law.

8

any board or member of a board performing a function or exercising a power under a *taxation law

is for the purpose of performing that function or exercising that power.

9

a competent authority referred to in an international agreement (within the meaning of section 23 of the International Tax Agreements Act 1953)

is for the purpose of exchanging information under such an international agreement.

10

any employer (within the meaning of the Superannuation Guarantee (Administration) Act 1992)

is for the purpose of disclosing to that employer information included in a notice given to the Commissioner under subsection 32F(1) or 32H(1A) of that Act by an employee (within the meaning of that Act) of that employer.

11

a payer (within the meaning of Part VA of the Income Tax Assessment Act 1936) in relation to whom an individual has made a *TFN declaration that is in effect

(a) is of a matter that relates to the individual’s income tax or other liability referred to in paragraph 111(b), (ca), (cb), (cc), (cd), (da) or (db); and

(b) is for the purpose of assisting the individual to give a declaration under section 1550 to the payer; and

(c) is made as the result of a request made by the individual to the Commissioner

35555  Exception—disclosure to Ministers

 (1) Section 35525 does not apply if:

 (a) the entity is a *taxation officer; and

 (b) an item in the table in this subsection covers the making of the record or the disclosure; and

 (c) if the entity is not the Commissioner, a *Second Commissioner or an SES employee or acting SES employee of the Australian Taxation Office—one of the following has agreed that the record or disclosure is covered by the item:

 (i) the Commissioner;

 (ii) a Second Commissioner;

 (iii) an SES employee or acting SES employee of the Australian Taxation Office who is not a direct supervisor of the taxation officer.

 

Records or disclosures to Ministers

Item

The record is made for or the disclosure is to ...

and the record or disclosure ...

1

any Minister

is for the purpose of enabling the Minister to exercise a power or perform a function under a *taxation law.

2

the Minister

(a) is about an entity; and

(b) is for the purpose of enabling the Minister to respond directly to the entity in relation to a representation made by the entity to:

(i) the Minister; or

(ii) another member of a House of the Parliament.

3

the Minister

is for the purpose of informing decisions made under the scheme known as the Compensation for Detriment Caused by Defective Administration Scheme.

4

the *Finance Minister

is for the purpose of:

(a) the waiver, or possible waiver, of a *tax debt under section 63 of the Public Governance, Performance and Accountability Act 2013; or

(b) the making, or possible making, of a payment referred to in section 65 of that Act (about act of grace payments) in connection with administering a *taxation law.

5

any Minister

is for the purpose of:

(a) determining whether to make an ex gratia payment; or

(b) administering such a payment.

6

a Minister responsible for:

(a) agriculture; or

(aa) water; or

(b) industry policy; or

(c) investment promotion; or

(d) taxation policy; or

(e) foreign investment in Australia

(a) is of information contained in the Register of Foreign Ownership of Agricultural Land or Register of Foreign Ownership of Water Entitlements; and

(b) is for the purpose of enabling that Minister to discharge that responsibility.

Note 1: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

Note 2: Section 19 of the Acts Interpretation Act 1901 provides that the expression “the Minister”, as used in table items 2 and 3, refers to the Minister or Ministers administering the relevant provision.

 (2) The *taxation officer is entitled to rely on the exception in subsection (1) even if the agreement referred to in paragraph (1)(c) has not been obtained in relation to the record or disclosure.

35560  Limits on disclosure to Ministers

 (1) Sections 35545 and 35555 are the only exceptions to the prohibition in section 35525 on which an entity who has acquired *protected information as a *taxation officer can rely in making a record of the information for, or disclosing the information to, a Minister, whether or not provided to a Minister in the course of, or for the purposes of or incidental to, the transacting of the business of a House of the Parliament or of a committee of one or both Houses of the Parliament.

Note: Disclosures that are not prohibited by section 35525 are not affected by this subsection. For example, a taxation officer may disclose information to a Minister if the Minister is the entity to whom the information relates, or is an entity covered by subsection 35525(2) in relation to the information.

 (2) Subsection (1) has effect despite section 16 of the Parliamentary Privileges Act 1987, and that section does not operate to the extent that it would otherwise apply to a disclosure of *protected information by a *taxation officer to a Minister.

Note: This subsection does not limit the operation of section 16 of the Parliamentary Privileges Act 1987 in any other respect. That section continues to operate, for example, to enable taxation officers to disclose protected information to a committee of one or both Houses of the Parliament.

35565  Exception—disclosure for other government purposes

 (1) Section 35525 does not apply if:

 (a) the entity is a *taxation officer; and

 (b) an item in a table in this section covers the making of the record or the disclosure.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

Table 1—Records or disclosures relating to social welfare, health or safety

 (2) Table 1 is as follows:

 

Table 1: Records or disclosures relating to social welfare, health or safety

Item

The record is made for or the disclosure is to ...

and the record or disclosure ...

1

an Agency Head (within the meaning of the Public Service Act 1999) of an agency (within the meaning of that Act) dealing with matters relating to the social security law (within the meaning of subsection 23(17) of the Social Security Act 1991)

is for the purpose of administering that law.

2

the *Health Secretary

is for the purpose of administering any law of the Australian Capital Territory or of the Northern Territory which is administered by the *Health Minister.

3

the Repatriation Commission

is for the purpose of administering any *Commonwealth law relating to pensions, allowances or benefits.

4

the *Student Assistance Secretary

is for the purpose of administering any *Commonwealth law relating to pensions, allowances or benefits.

4A

the Secretary of the Department administered by the Minister administering the Fair Entitlements Guarantee Act 2012

is for the purpose of administering the Fair Entitlements Guarantee Act 2012.

4B

the *Employment Secretary

is for the purpose of administering any *Commonwealth law relating to pensions, allowances or benefits, other than the Fair Entitlements Guarantee Act 2012.

5

(a) the *Student Assistance Secretary; or

(b) the Secretary of the Department administered by the Minister administering the Higher Education Support Act 2003; or

(c) the Secretary of the Department administered by the Minister administering the VET Student Loans Act 2016

is for the purpose of administering any *Commonwealth law relating to financial assistance to students.

5AA

the Secretary of the Department administered by the Minister administering the Australian Apprenticeship Support Loans Act 2014

is for the purpose of administering that Act.

5A

the *Families Secretary or the Chief Executive Centrelink (within the meaning of the Human Services (Centrelink) Act 1997)

is for the purpose of administering the Paid Parental Leave Act 2010.

6

the *Families Secretary or the Chief Executive Centrelink (within the meaning of the Human Services (Centrelink) Act 1997)

is for the purpose of administering the A New Tax System (Family Assistance) (Administration) Act 1999.

7

the Child Support Registrar

is for the purpose of administering the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989.

8

the Chief Executive Medicare (within the meaning of the Human Services (Medicare) Act 1973)

is for the purpose of administering Part 22 (about premiums reduction scheme) or 64 (about administration of that scheme) of the Private Health Insurance Act 2007.

9

an *Australian government agency

is necessary for the purpose of preventing or lessening:

(a) a serious threat to an individual’s life, health or safety; or

(b) a serious threat to public health or public safety.

10

an *Australian government agency

is for the purpose of preventing, detecting, disrupting or investigating conduct that relates to a matter of security as defined by section 4 of the Australian Security Intelligence Organisation Act 1979

11

the Chief Executive Officer of Services Australia

is for the purpose of administering the program known as the COVID19 Disaster Payment.

Table 2—Records or disclosures relating to superannuation or finance

 (3) Table 2 is as follows:

 

Table 2: Records or disclosures relating to superannuation or finance

Item

The record is made for or the disclosure is to ...

and the record or disclosure ...

1

a financial sector supervisory agency (within the meaning of section 3 of the Australian Prudential Regulation Authority Act 1998)

(a) is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999; and

(b) is for the purpose of the agency performing any of its functions or exercising any of its powers.

2

(a) an agency having the function, in Australia or in a foreign country, of supervising or regulating *financial institutions; or

(b) any other agency (including a foreign agency) specified in the regulations

(a) is of information that was obtained under or in relation to the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the Superannuation Industry (Supervision) Act 1993; and

(b) is for the purpose of performing any of its functions or exercising any of its powers; and

(c) is made in accordance with the conditions (if any) imposed by the regulations in relation to the disclosure of information under this item.

3

the operator of the AFCA scheme (within the meaning of the Corporations Act 2001)

(a) is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999; and

(b) is for the purpose of the operator performing any of its functions or exercising any of its powers.

4

the Australian Prudential Regulation Authority (APRA)

is for the purpose of administering:

(a) the Financial Institutions Supervisory Levies Collection Act 1998; or

(b) the Superannuation Industry (Supervision) Act 1993.

5

APRA

(a) is of information that was obtained under or in relation to the Superannuation (Unclaimed Money and Lost Members) Act 1999; and

(b) is for the purpose of APRA performing any of its functions or exercising any of its powers.

6

APRA

is for the purpose of administering a reporting standard made under section 13 of the Financial Sector (Collection of Data) Act 2001, to the extent that the standard relates to amounts reported to *APRA for the purposes of the Major Bank Levy Act 2017.

6A

*ASIC

is for the purpose of administering Part 16 of the Superannuation Industry (Supervision) Act 1993.

7

an individual who is or was an employee (within the meaning of the Superannuation Guarantee (Administration) Act 1992)

(a) is of information that relates to the Commissioner’s response to a complaint by the individual about a failure by the individual’s employer or former employer to comply with the employer’s obligations under the Superannuation Guarantee (Administration) Act 1992, or under a provision of this Act as it relates to that Act, in relation to the employee; and

(b) does not relate to the general financial affairs of the employer.

7A

an individual who is or was an employee (within the meaning of the Superannuation Guarantee (Administration) Act 1992)

(a) is of information that relates to:

(i) a failure by the individual’s employer or former employer to comply with the employer’s obligations under the Superannuation Guarantee (Administration) Act 1992, or under a provision of this Act as it relates to that Act, in relation to the employee; or

(ii) if the Commissioner reasonably suspects that such a failure has occurred—the suspected failure; or

(iii) any actions taken by the Commissioner in relation to such a failure or suspected failure; and

(b) does not relate to the general financial affairs of the employer.

8

any entity, court or tribunal

is of information that was obtained under, or for the purposes of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the Superannuation Industry (Supervision) Act 1993 and is for the purpose of all or any of the following:

(a) identifying a particular *self managed superannuation fund;

(b) enabling members of the public to contact persons who perform functions in relation to a particular self managed superannuation fund;

 

 

(c) enabling the Commissioner to provide an opinion to members of the public as to whether or not a particular self managed superannuation fund is a complying superannuation fund in relation to a particular income year for the purposes of Division 2 of Part 5 of the Superannuation Industry (Supervision) Act 1993;

(d) describing activity engaged in, or proposed to be engaged in, by the Commissioner in relation to a breach or suspected breach by a person of a provision of the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the Superannuation Industry (Supervision) Act 1993.

8A

a Senior Registry official (within the meaning of section 90XZJ of the Family Law Act 1975) of a court in response to that official’s request under that section

(a) is of superannuation information (within the meaning of that section); and

(b) is for the purpose of property settlement proceedings (within the meaning of that Act).

8B

the Principal Registrar of the Family Court of Western Australia in response to the Principal Registrar’s request under section 90YZY of the Family Law Act 1975

(a) is of superannuation information (within the meaning of that section); and

(b) is for the purpose of all of the relevant proceedings (within the meaning of that section).

9

an approved clearing house (within the meaning of the Superannuation Guarantee (Administration) Act 1992)

is for the purposes of that body performing its functions in relation to superannuation contributions.

10

(a) a *regulated superannuation fund; or

(b) a public sector superannuation scheme (within the meaning of the Superannuation Industry (Supervision) Act 1993); or

(c) an *approved deposit fund; or

(d) an *RSA provider; or

(e) an entity that, as an agent of such a fund, scheme or RSA provider, provides administration services for:

(i) beneficiaries (within the meaning of that Act) of the fund or scheme; or

(ii) holders (within the meaning of the Retirement Savings Accounts Act 1997) of *RSAs provided by the RSA provider

is for the purpose of:

(a) informing:

(i) a beneficiary (within the meaning of the Superannuation Industry (Supervision) Act 1993) of such a fund or scheme; or

(ii) a holder (within the meaning of the Retirement Savings Accounts Act 1997) of an *RSA provided by the *RSA provider; or

(iii) an applicant to become such a beneficiary or holder;

 of one or more of his or her *superannuation interests (whether with that fund, scheme or RSA provider or another fund, scheme or RSA provider); or

(b) assisting such a beneficiary, holder or applicant to choose whether to maintain or create such a superannuation interest; or

(c) assisting such a beneficiary, holder or applicant to give effect to such a choice; or

 

 

(d) informing such a beneficiary, holder or applicant of an amount that is or may become payable, or that may be paid, credited or otherwise dealt with, in relation to the beneficiary, holder or applicant under:

(i) the Small Superannuation Accounts Act 1995; or

(ii) the Superannuation (Government Cocontribution for Low Income Earners) Act 2003; or

(iii) the Superannuation Guarantee (Administration) Act 1992; or

(iv) the Superannuation (Unclaimed Money and Lost Members) Act 1999; or

(e) assisting such a beneficiary, holder or applicant to give effect to a choice that he or she may make, or undertake an action that he or she may undertake, in relation to an amount mentioned in paragraph (d).

11

a *superannuation provider or APRA

is for the purpose of complying with subsection 292102(9) of the Income Tax Assessment Act 1997.

12

An employer (within the meaning of the Superannuation Guarantee (Administration) Act 1992) of an individual

is for the purpose of:

(a) informing the individual of one or more of his or her *superannuation interests; or

(b) assisting the individual to choose whether to maintain or create a superannuation interest; or

(c) assisting the individual to give effect to such a choice

Table 3—Records or disclosures relating to corporate regulation, business, research or policy

 (4) Table 3 is as follows:

 

Table 3: Records or disclosures relating to corporate regulation, business, research or policy

Item

The record is made for or the disclosure is to ...

and the record or disclosure ...

1

*ASIC

is for the purpose of performing any functions or exercising any powers under any Act or instrument, or part of any Act or instrument, of which the Commission has the general administration.

6

Industry Innovation and Science Australia established under section 6 of the Industry Research and Development Act 1986

is for the purpose of administering any *Commonwealth law relating to venture capital.

6A

the Secretary of the Department administered by the Minister administering the Shipping Reform (Tax Incentives) Act 2012

is for the purpose of administering that Act.

7

the Secretary of the Department

is for the purpose of administering the Foreign Acquisitions and Takeovers Act 1975.

7A

a person appointed by the Commonwealth for the purposes of the Foreign Acquisitions and Takeovers Act 1975

is for the purpose of advising the Treasurer in relation to the administration of that Act.

8

the Secretary of the Department

(a) is of information that does not include the name, contact details or *ABN of any entity; and

(b) is for the purpose of the Department estimating or analysing taxation revenue or estimating the cost of policy proposals.

9

the Parliamentary Budget Officer (within the meaning of the Parliamentary Service Act 1999)

(a) is of information that does not include the name, contact details or *ABN of any entity; and

(b) is for the purpose of the Parliamentary Budget Officer performing any of his or her functions, or exercising any of his or her powers, under Part 7 of the Parliamentary Service Act 1999.

Table 4—Records or disclosures relating to other taxation matters

 (5) Table 4 is as follows:

 

Table 4: Records or disclosures relating to other taxation matters

Item

The record is made for or the disclosure is to ...

and the record or disclosure ...

1

a State taxation officer, or a Territory taxation officer, within the meaning of subsection 13D(1) of this Act

is for the purpose of administering a *State law or *Territory law relating to taxation, if a State taxation officer or a Territory taxation officer is authorised by law to communicate information obtained under the State law or Territory law to the Commissioner.

2

a State taxation officer, or a Territory taxation officer, within the meaning of subsection 13D(1) of this Act

(a) is of rental information, residential address information or spousal information; and

(b) is for the purpose of administering the First Home Owner Grant (New Homes) Act 2000 (NSW), or a similar *State law or *Territory law.

4

an individual who holds an office of a State or Territory, being an office prescribed for the purpose of this table item

(a) is of information that relates to alcoholic beverages; and

(b) is for the purpose of the individual administering an *arrangement for the rebate, refund or other payment or credit by a State or Territory in respect of alcoholic beverages.

5

the InspectorGeneral of Taxation

is for the purpose of investigating or reporting under, or otherwise administering:

(a) the InspectorGeneral of Taxation Act 2003; or

(b) provisions of the Ombudsman Act 1976, to the extent that they are applied by the InspectorGeneral of Taxation Act 2003.

6

the National AntiCorruption Commissioner (within the meaning of the National AntiCorruption Commission Act 2022)

(a) is for the purposes of the National AntiCorruption Commission Act 2022; and

(b) is in relation to a corruption issue that relates to the Australian Taxation Office or the InspectorGeneral of Taxation.

Table 5—Records or disclosures relating to rehabilitation or compensation

 (6) Table 5 is as follows:

 

Table 5: Records or disclosures relating to rehabilitation or compensation

Item

The record is made for or the disclosure is to ...

and the record or disclosure ...

1

an authority of the Commonwealth established under a *Commonwealth law relating to rehabilitation or compensation

is for the purpose of performing any of its functions or exercising any of its powers under that law.

2

the *Defence Secretary

is for the purpose of administering any *Commonwealth law relating to payments in respect of dependants of members of the Defence Force.

3

an authority of a State or Territory that administers a *workers’ compensation law

(a) is of information that relates to amounts withheld under Part 25 in Schedule 1 to this Act (about PAYG withholding); and

(b) is for the purpose of ensuring that employers comply with their obligations relating to insurance or the imposition of a levy under that law.

Table 6—Records or disclosures relating to the environment

 (7) Table 6 is as follows:

 

Table 6: Records or disclosures relating to the environment

Item

The record is made for or the disclosure is to...

and the record or disclosure...

2

the *Environment Secretary

is for the purpose of administering product stewardship (oil) benefits.

Table 7—Records or disclosures relating to miscellaneous matters

 (8) Table 7 is as follows:

 

Table 7: Records or disclosures relating to miscellaneous matters

Item

The record is made for or the disclosure is to ...

and the record or disclosure ...

1

the Australian Statistician

is for the purpose of administering the Census and Statistics Act 1905.

2

the ComptrollerGeneral of Customs (within the meaning of the Customs Act 1901)

is for the purpose of administering any Act to the extent to which the ComptrollerGeneral of Customs has the general administration of the Act or any instrument under such an Act.

2A

the Electoral Commissioner (within the meaning of the Commonwealth Electoral Act 1918)

(a) is of information disclosed to, or obtained by, the Commissioner of Taxation on or after the commencement of this table item; and

(b) is for the purpose of administering the Commonwealth Electoral Act 1918 or the Referendum (Machinery Provisions) Act 1984.

3

the *Immigration Secretary or the Australian Border Force Commissioner (within the meaning of the Australian Border Force Act 2015)

is for the purpose of performing any functions or exercising any powers under any Act or instrument, or part of any Act or instrument, administered by the Minister administering the *Immigration Department.

4

the Regulator (within the meaning of the Payment Times Reporting Act 2020)

(a) is of information relating to whether an entity is a reporting entity (within the meaning of the Payment Times Reporting Act 2020); and

(b) is for the purpose of enabling the Regulator to administer that Act.

5

the Fair Work Ombudsman (within the meaning of the Fair Work Act 2009)

(a) is of the fact of an entity’s actual or reasonably suspected noncompliance with a *taxation law; and

(b) is for the purpose of ensuring the entity’s compliance with the Fair Work Act 2009.

5AB

(a) the Fair Work Commission (within the meaning of the Fair Work Act 2009); or

(b) the Fair Work Ombudsman (within the meaning of that Act)

(a) is of information that relates to the jobkeeper scheme (within the meaning of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020); and

(b) is for the purpose of administering the Fair Work Act 2009.

5A

the Commissioner of the Australian Charities and Notforprofits Commission

is for the purpose of administering the Australian Charities and Notforprofits Commission Act 2012.

6

(a) the Commissioner of the Australian Charities and Notforprofits Commission; or

(b) the AttorneyGeneral of a State or Territory

(a) is of information that relates to noncompliance of a *ancillary fund or charity with an *Australian law; and

(b) is for the purpose of the administration of an Australian law governing trusts and charities.

6A

the Secretary of the Department administered by the Minister administering the Petroleum and Other Fuels Reporting Act 2017

is for the purpose of administering the Petroleum and Other Fuels Reporting Act 2017 or the Fuel Security Act 2021.

7

the Secretary of a Department administered by a Minister responsible for:

(a) agriculture; or

(aa) water; or

(b) industry policy; or

(c) investment promotion; or

(d) taxation policy; or

(e) foreign investment in Australia

(a) is of information contained in the Register of Foreign Ownership of Agricultural Land or Register of Foreign Ownership of Water Entitlements; and

(b) is for the purpose of enabling that Department to assist that Minister to discharge that responsibility.

8

a *foreign government agency of a foreign country or part of a foreign country, or an entity acting on behalf of such an agency

(a) is of information relating to the address, contact information or income of a person who has an obligation to repay a student loan issued by or on behalf of:

(i) that agency; or

(ii) another *foreign government agency of that country, or that part of that country; and

(b) is for the purposes of contacting the person, and recovering from the person outstanding amounts relating to the loan.

9

an *Australian government agency that administers an *Australian law referred to in paragraph 98010(1)(a) of the Income Tax Assessment Act 1997

is for the purpose of administering that *Australian law in relation to whether an entity should be, or should continue to be, covered by that Australian law in the way described in that paragraph.

10

an *Australian government agency that registers entities as described in paragraph 98010(1)(b) of the Income Tax Assessment Act 1997

is for the purpose of determining whether an entity should be, or should continue to be, registered as described in that paragraph.

10A

an *Australian government agency

(a) is of information that relates to the jobkeeper scheme (within the meaning of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020); and

(b) is for the purpose of administering an *Australian law; and

(c) is for a purpose relating to the coronavirus known as COVID19.

12

an *Australian government agency

is for the purpose of administering a program declared under subsection (10) to be a relevant COVID19 business support program.

13

an *Australian government agency

is for the purpose of administering a program declared under section 35566 to be a major disaster support program.

 (9) To avoid doubt, the exceptions in table items 7 and 7A in table 2 in subsection (3) have effect even if it is, or has been, in dispute or uncertain whether the individual is an employee or former employee of the employer.

 (10) For the purposes of item 12 of Table 7 in subsection (8), the Minister may, by legislative instrument, declare a program administered by an *Australian government agency to be a relevant COVID19 business support program if the Minister is satisfied that the program is, in effect:

 (a) responding to economic impacts of the coronavirus known as COVID19; and

 (b) directed at supporting *businesses the operations of which have been significantly disrupted as a result of a public health directive.

35566  Major disaster support programs

 (1) For the purposes of item 13 of Table 7 in subsection 35565(8), the Minister may, by legislative instrument, declare a program administered by an *Australian government agency to be a major disaster support program if the Minister is satisfied that the program is, in effect:

 (a) responding to the impacts of an event to which subsection (2) of this section applies; and

 (b) directed at supporting:

 (i) individuals whom the event has significantly impacted; or

 (ii) *businesses the operations of which the event has significantly disrupted.

 (2) This subsection applies to an event if:

 (a) the event developed rapidly and resulted in:

  (i) the death, serious injury or other physical suffering of a large number of individuals; or

 (ii) widespread damage to property or the natural environment; or

 (b) the event is an emergency to which a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) relates (including a national emergency declaration that is no longer in force).

Period of effect

 (3) A declaration made under subsection (1) must specify the period for which the declaration is in force. The period must end no later than 2 years after the day the declaration is registered on the Federal Register of Legislation.

35567  Exception—disclosure to registrars

 (1) Section 35525 does not apply if:

 (a) the entity is a *taxation officer; and

 (b) the Commissioner is appointed as a registrar specified in subsection (2); and

 (c) no other person or body is appointed as that registrar; and

 (d) the record or the disclosure is made for the purposes of the performance of that registrar’s functions, or the exercise of that registrar’s powers.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

 (2) The following registrars are specified:

 (a) the *Registrar;

 (b) the Registrar (within the meaning of the Business Names Registration Act 2011);

 (c) the Registrar (within the meaning of the Corporations Act 2001);

 (d) the Registrar (within the meaning of the Foreign Acquisitions and Takeovers Act 1975);

 (e) the Registrar (within the meaning of the National Consumer Credit Protection Act 2009).

35570  Exception—disclosure for law enforcement and related purposes

 (1) Section 35525 does not apply if:

 (a) the entity is the Commissioner or a *taxation officer authorised by the Commissioner to make the record or disclosure; and

 (b) an item in the table in this subsection covers the making of the record or the disclosure; and

 (c) if the entity is not the Commissioner, a *Second Commissioner or an SES employee or acting SES employee of the Australian Taxation Office—one of the following has agreed that the record or disclosure is covered by the item:

 (i) the Commissioner;

 (ii) a Second Commissioner;

 (iii) an SES employee or acting SES employee of the Australian Taxation Office who is not a direct supervisor of the taxation officer.

Note 1: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

Note 2: The Commissioner is required to include in an annual report information about disclosures made under this subsection: see section 3B.

 

Records or disclosures for law enforcement and related purposes

Item

The record is made for or the disclosure is to ...

and the record or disclosure ...

1

an *authorised law enforcement agency officer, or a court or tribunal

is for the purpose of:

(a) investigating a *serious offence; or

(b) enforcing a law, the contravention of which is a serious offence; or

(c) the making, or proposed or possible making, of a *proceeds of crime order; or

(d) supporting or enforcing a proceeds of crime order.

2

an *authorised ASIO officer

is for the purpose of performing ASIO’s functions under subsection 17(1) of the Australian Security Intelligence Organisation Act 1979.

3

a *Project Wickenby officer, or a court or tribunal

(a) is for or in connection with a *purpose of the Project Wickenby taskforce; and

(b) is made before 1 July 2015, or a later prescribed day.

4

a *taskforce officer of a prescribed taskforce, or a court or tribunal

(a) is for or in connection with a purpose of the prescribed taskforce; and

(b) is made within the time limit, if any, prescribed by the regulations.

5

a Royal Commission in respect of which Letters Patent issued by the GovernorGeneral declare that the Royal Commission is a Royal Commission to which this table item applies, or a member of such a Royal Commission

is for the purpose of the Royal Commission conducting its inquiry.

6

one or more of the following bodies:

(a) a Royal Commission of a State or a Territory prescribed by the regulations for the purposes of this table item;

(b) a commission of inquiry of a State or a Territory prescribed by the regulations for the purposes of this table item;

(c) a board of inquiry of a State or a Territory prescribed by the regulations for the purposes of this table item

is for the purpose of:

(a) investigating a *serious offence; or

(b) enforcing a law, the contravention of which is a serious offence; or

(c) the making, or proposed or possible making, of a *proceeds of crime order; or

(d) supporting or enforcing a proceeds of crime order.

 (2A) The *taxation officer is entitled to rely on the exception in subsection (1) even if the agreement referred to in paragraph (1)(c) has not been obtained in relation to the record or disclosure.

Meaning of various terms

 (2) Authorised ASIO officer means:

 (a) the DirectorGeneral of Security holding office under the Australian Security Intelligence Organisation Act 1979; or

 (b) an ASIO employee (within the meaning of that Act) or an ASIO affiliate (within the meaning of that Act) who has been authorised in writing by the DirectorGeneral of Security to perform the functions of an authorised ASIO officer under this Act.

 (3) Authorised law enforcement agency officer means:

 (a) the head of a *law enforcement agency; or

 (b) an officer of a law enforcement agency, or a person engaged by, or otherwise performing services for, a law enforcement agency, authorised in writing by the head of the agency to perform the functions of an authorised law enforcement agency officer under this Act.

 (4) Law enforcement agency means:

 (a) the Australian Federal Police; or

 (b) the police force of a State or Territory; or

 (c) the Office of the Director of Public Prosecutions established by section 5 of the Director of Public Prosecutions Act 1983; or

 (d) the National AntiCorruption Commission; or

 (e) the Australian Crime Commission; or

 (f) the Independent Commission Against Corruption established by the Independent Commission Against Corruption Act 1988 of New South Wales; or

 (g) the New South Wales Crime Commission; or

 (h) the Law Enforcement Conduct Commission of New South Wales; or

 (i) the Independent Broadbased Anticorruption Commission of Victoria; or

 (j) the Crime and Corruption Commission of Queensland; or

 (k) the Corruption and Crime Commission of Western Australia; or

 (ka) the Independent Commissioner Against Corruption of South Australia; or

 (l) *ASIC.

 (5) Proceeds of crime order means:

 (a) an order, relating to an entity’s commission of a *serious offence, under:

 (i) Chapter 2 (about confiscation of property in relation to certain offences) or Division 1 of Part 31 (about examination orders) of the Proceeds of Crime Act 2002; or

 (ii) Part II (about confiscation) or III (about control of property liable to confiscation) of the Proceeds of Crime Act 1987; or

 (iii) a *State law or *Territory law corresponding to a law referred to in subparagraph (i) or (ii); or

 (iv) Division 3 of Part XIII (about recovery of pecuniary penalties for dealings in narcotic goods) of the Customs Act 1901; or

 (b) an unexplained wealth order (within the meaning of the Proceeds of Crime Act 2002); or

 (c) a court order (including a declaration or direction):

 (i) under a State law or Territory law; and

 (ii) relating to unexplained wealth.

 (6) An entity is a Project Wickenby officer if the entity:

 (a) holds an office in, is employed in, or is performing services for:

 (i) a *Project Wickenby taskforce agency; or

 (ii) a *Project Wickenby taskforce supporting agency; and

 (b) performs duties that relate to a *purpose of the Project Wickenby taskforce.

 (7) The following agencies are Project Wickenby taskforce agencies:

 (a) the Australian Taxation Office;

 (b) the Australian Crime Commission;

 (c) the Australian Federal Police;

 (d) *ASIC;

 (e) the Office of the Director of Public Prosecutions;

 (f) a prescribed agency.

 (8) The following agencies are Project Wickenby taskforce supporting agencies:

 (a) the Department administered by the Minister administering the Crimes Act 1914;

 (b) the Australian Transaction Reports and Analysis Centre;

 (c) the Australian Government Solicitor;

 (d) a prescribed agency.

 (9) The purposes of the Project Wickenby taskforce are to:

 (a) detect; and

 (b) deter; and

 (c) investigate; and

 (d) enforce the law relating to;

the promotion of or participation in *arrangements of an international character, or purported international character, that relate to one or more of the following:

 (e) tax avoidance or evasion;

 (f) breaches of laws regulating financial markets and corporations;

 (g) criminal activity in the nature of fraud or obtaining benefits by deception (including deceiving investors or creditors);

 (h) money laundering;

 (i) concealing income or assets.

 (10) Serious offence means an offence against an *Australian law that is punishable by imprisonment for a period exceeding 12 months.

 (11) An entity is a taskforce officer of a prescribed taskforce if:

 (a) the entity holds an office in, is employed in, or is performing services for, an agency in the prescribed taskforce; and

 (b) the entity’s duties relate to a purpose of the prescribed taskforce.

 (12) The regulations may prescribe a taskforce for the purposes of item 4 of the table in subsection (1). A major purpose of the taskforce must be protecting the public finances of Australia.

 (13) Without limiting subsection (12), regulations made for the purposes of item 4 of the table in subsection (1) may deal with the following matters:

 (a) the purposes of the taskforce;

 (b) the agencies in the taskforce.

35572  Exception—disclosure to credit reporting bureaus

Exception—entities in declared class of entities

 (1) Section 35525 does not apply if:

 (a) the entity is a *taxation officer; and

 (b) the record is made for, or the disclosure is to, a *credit reporting bureau; and

 (c) the record or disclosure is of information that relates to the *tax debts of an entity (the primary entity) that is included in a class of entities declared under subsection (5) of this section; and

 (d) the record or disclosure is for the purpose of enabling the credit reporting bureau to prepare, issue, update, correct or confirm credit worthiness reports in relation to the primary entity; and

 (e) in the case of a disclosure of information other than for the purposes of updating, correcting or confirming information previously disclosed under this exception—both:

 (i) the InspectorGeneral of Taxation has been consulted on the disclosure; and

 (ii) 28 days have passed after a notice under subsection (2) of this section was given to the primary entity for the disclosure.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

Notice of disclosure

 (2) The Commissioner must notify a primary entity if:

 (a) information that relates to the primary entity is to be disclosed to a *credit reporting bureau under this section; and

 (b) the information is not information that updates, corrects or confirms the information previously disclosed under the exception in subsection (1).

 (3) The notice must:

 (a) be in writing; and

 (b) explain the type of information that is to be disclosed to the *credit reporting bureau; and

 (ba) explain:

 (i) why the primary entity is included in a class of entities declared under subsection (5); and

 (ii) the steps (if any) the primary entity may take to no longer be included in that class before the disclosure occurs; and

 (c) set out the amount of any *tax debts payable by the primary entity at the time the notice is given by the Commissioner; and

 (d) explain how the primary entity may make a complaint in relation to the proposed disclosure of the entity’s information; and

 (e) be served on the primary entity.

Exception—entities no longer in declared class of entities

 (4) Section 35525 does not apply if:

 (a) the entity is a *taxation officer; and

 (b) the record is made for, or the disclosure is to, a *credit reporting bureau; and

 (c) the record or disclosure is of information that relates to the *tax debts of an entity that:

 (i) has had information previously disclosed under the exception in subsection (1) of this section; and

 (ii) is no longer an entity that is included in a class of entities declared under subsection (5) of this section; and

 (d) the record or disclosure is of information that relates to why the entity to which the information relates is no longer included in a class of entities declared under subsection (5) of this section; and

 (e) the record or disclosure is for the purpose of enabling the credit reporting bureau to update or correct credit worthiness reports in relation to the entity to which the information relates.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

Class of entities

 (5) The Minister may, by legislative instrument, declare one or more classes of entities for the purposes of this section.

 (5A) Before making an instrument under subsection (5), the Minister must:

 (a) consult the InspectorGeneral of Taxation; and

 (b) consider any submissions made by the InspectorGeneral of Taxation because of that consultation.

 (6) Before making an instrument under subsection (5), the Minister must:

 (a) consult the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010) and would be affected by the proposed instrument; and

 (b) consider any submissions made by the Information Commissioner because of that consultation.

Credit reporting bureau

 (7) An entity is a credit reporting bureau if the entity is recognised by the Commissioner as an entity that prepares and issues credit worthiness reports in relation to other entities.

 (8) The Commissioner must keep and publish a list of credit reporting bureaus on the Australian Taxation Office website.

 (9) The list of credit reporting bureaus is not a legislative instrument.

35575  Limits on disclosure to courts and tribunals

  An entity who is or was a *taxation officer is not to be required to disclose to a court or tribunal *protected information that was acquired by the entity as a taxation officer except where it is necessary to do so for the purpose of carrying into effect the provisions of:

 (a) a *taxation law; or

 (b) the Foreign Acquisitions and Takeovers Act 1975, if the entity acquired the information because of a request under subsection 138(4) of that Act.

Note: See also section 8ZK of this Act (about protection of witnesses).

Subdivision 355COndisclosure of protected information by other people

Guide to Subdivision 355C

355150  What this Subdivision is about

Someone who is not a taxation officer is prohibited from disclosing protected information, except in certain specified circumstances.

Table of sections

Operative provisions

355155 Offence—ondisclosure of protected information by other people

355160 Consent is not a defence

355165 Generality of Subdivision not limited

355170 Exception—ondisclosure of publicly available information

355172 Exception—disclosure of periodic aggregate tax information

355175 Exception—ondisclosure for original purpose

355180 Exception—ondisclosure to Ministers in relation to statutory powers or functions

355182 Exception—ondisclosure of certain information to Commonwealth Ombudsman

355185 Exception—ondisclosure to IGIS officials

355190 Exception—ondisclosure in relation to ASIO

355192 Exception—ondisclosure in relation to National AntiCorruption Commission Act 2022

355195 Exception—ondisclosure by Royal Commissions

355200 Exception—records made in compliance with Australian laws

355205 Limits on ondisclosure to courts or tribunals

355210 Limits on ondisclosure to Ministers

355215 Exception—ondisclosure of information disclosed to credit reporting bureaus

Operative provisions

355155  Offence—ondisclosure of protected information by other people

  An entity commits an offence if:

 (a) the entity:

 (i) makes a record of information; or

 (ii) discloses information to another entity (other than the entity to whom the information relates or that entity’s agent in relation to the information) or to a court or tribunal; and

 (b) the information was acquired by the firstmentioned entity under an exception in this Subdivision or in Subdivision 355B (except subsection 35565(1) operating in relation to item 7 in the table in subsection 35565(4)); and

 (c) the firstmentioned entity did not acquire the information as a *taxation officer.

Penalty: Imprisonment for 2 years.

Note: This section also covers information acquired by an entity (other than as a taxation officer) before the commencement of this section under certain repealed or amended provisions: see item 124 of Schedule 2 to the Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010.

355160  Consent is not a defence

  It is not a defence to a prosecution for an offence against section 355155 that the entity to whom the information relates has consented to:

 (a) the making of the record; or

 (b) the disclosure of the information.

355165  Generality of Subdivision not limited

  Except as provided in section 355210 (about limits on disclosure to Ministers), nothing in this Subdivision limits the generality of anything else in it.

Note: This means that each provision in this Subdivision (other than section 355210) has an independent operation and is not to be interpreted by reference to any other provision within the Subdivision.

355170  Exception—ondisclosure of publicly available information

  Section 355155 does not apply if the information was already available to the public (otherwise than as a result of a contravention of section 35525, 355155 or 355265).

Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.

355172  Exception—disclosure of periodic aggregate tax information

  Section 355155 does not apply if the information is *periodic aggregate tax information.

Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.

355175  Exception—ondisclosure for original purpose

 (1) Section 355155 does not apply if:

 (a) the information was originally disclosed under an exception in Subdivision 355B for a purpose specified in that exception (the original purpose); and

 (b) the information was acquired by the entity under this section or an exception in Subdivision 355B; and

 (c) the record or disclosure is made by the entity for the original purpose, or in connection with the original purpose.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

Instances of disclosures in connection with the original purpose

 (2) Without limiting subsection (1), a record or disclosure is made by the entity in connection with the original purpose if:

 (a) the record is made for, or the disclosure is to, any entity, court or tribunal; and

 (b) the record or disclosure is for the purpose of criminal, civil or administrative proceedings (including merits review or judicial review) that are related to the original purpose.

Multiple purposes

 (3) Subsection (1) has effect as if a record or disclosure made by the entity for a purpose specified in column 3 of the following table were made in connection with the original purpose:

 

Records or disclosures for purpose connected with the original purpose

Item

Original purpose

Purpose connected with the original purpose

1

a *purpose of the Project Wickenby taskforce

another purpose of that taskforce.

2

a purpose of a prescribed taskforce

another purpose of that taskforce.

3

one of the purposes specified in column 3 of item 1 of the table in subsection 35570(1)

the other of those purposes.

4

one of the purposes specified in column 3 of item 6 of the table in subsection 35570(1)

one of the other purposes specified in column 3 of item 6 of that table.

355180  Exception—ondisclosure to Ministers in relation to statutory powers or functions

  Section 355155 does not apply if:

 (a) the information was originally disclosed under an exception in Subdivision 355B for a purpose specified in that exception (the original purpose); and

 (b) the record is made for, or the disclosure is to, a Minister who has a statutory power or function in relation to the original purpose; and

 (c) the record or disclosure is for the purpose of enabling the Minister to:

 (i) decide whether to exercise the power or perform the function; or

 (ii) exercise the power or perform the function.

Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.

355182  Exception—ondisclosure of certain information to Commonwealth Ombudsman

 (1) Section 355155 does not apply if:

 (a) the entity is an officer of an *Australian government agency; and

 (b) the information was acquired by the entity under the exception in subsection 35565(1) operating in relation to item 10 in the table in subsection 35565(2); and

 (c) the record is made for, or the disclosure is to:

 (i) the Commonwealth Ombudsman or a Deputy Commonwealth Ombudsman; or

 (ii) a member of staff referred to in subsection 31(1) of the Ombudsman Act 1976; and

 (d) the record or disclosure is for the purpose of the performance of a function or duty of the Commonwealth Ombudsman, the Deputy Commonwealth Ombudsman or the member of staff, under the Ombudsman Act 1976.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

 (2) Section 355155 does not apply if:

 (a) the entity is:

 (i) the Commonwealth Ombudsman or a Deputy Commonwealth Ombudsman; or

 (ii) a member of staff referred to in subsection 31(1) of the Ombudsman Act 1976; and

 (b) the information was acquired by the entity under subsection (1) or this subsection; and

 (c) the record or disclosure is for the purpose of the performance of a function or duty of the Commonwealth Ombudsman, the Deputy Commonwealth Ombudsman or the member of staff, under the Ombudsman Act 1976.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

355185  Exception—ondisclosure to IGIS officials

 (1) Section 355155 does not apply if:

 (a) the entity is an officer of an *Australian government agency; and

 (b) the record is made for, or the disclosure is to, an *IGIS official; and

 (c) the record or disclosure is for the purposes of the IGIS official performing functions or duties, or exercising powers, as an IGIS official.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

 (2) Section 355155 does not apply if:

 (a) the entity is an *IGIS official; and

 (b) the information was acquired by the entity under subsection (1) or this subsection; and

 (c) the record or disclosure is for the purposes of the IGIS official performing functions or duties, or exercising powers, as an IGIS official.

355190  Exception—ondisclosure in relation to ASIO

 (1) Section 355155 does not apply if:

 (a) the entity is an *authorised ASIO officer; and

 (b) the record is made for, or the disclosure is to, an officer of a *law enforcement agency; and

 (c) the record or disclosure is for the purpose of, or in connection with:

 (i) investigating a *serious offence; or

 (ii) enforcing a law, the contravention of which is a serious offence; or

 (iii) the making, or proposed or possible making, of a *proceeds of crime order.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

 (2) Section 355155 does not apply if:

 (a) the entity is an officer of a *law enforcement agency; and

 (b) the information was acquired by the entity under subsection (1) or this paragraph; and

 (c) the record or disclosure is for the purpose of, or in connection with:

 (i) investigating a *serious offence; or

 (ii) enforcing a law, the contravention of which is a serious offence; or

 (iii) the making, or proposed or possible making, of a *proceeds of crime order.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

355192  Exception—ondisclosure in relation to National AntiCorruption Commission Act 2022

 (1) Section 355155 does not apply if:

 (a) the entity is the InspectorGeneral of Taxation; and

 (b) the information was acquired by the InspectorGeneral of Taxation under the exception in subsection 35565(1) operating in relation to item 5 in the table in subsection 35565(5); and

 (c) the record is made for, or the disclosure is to:

 (i) the National AntiCorruption Commissioner (within the meaning of the National AntiCorruption Commission Act 2022); or

 (ii) another staff member of the NACC (within the meaning of that Act); and

 (d) the record or disclosure is:

 (i) for the purposes of the National AntiCorruption Commission Act 2022; and

 (ii) in relation to a corruption issue (within the meaning of that Act) that relates to the Australian Taxation Office or the InspectorGeneral of Taxation.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

 (2) Section 355155 does not apply if:

 (a) the entity is:

 (i) the National AntiCorruption Commissioner (within the meaning of the National AntiCorruption Commission Act 2022); or

 (ii) another staff member of the NACC (within the meaning of that Act); and

 (b) the information was acquired by the entity under subsection (1) or this subsection; and

 (c) the record or disclosure is for the purpose of performing a function or duty of the National AntiCorruption Commissioner or another staff member of the NACC under the National AntiCorruption Commission Act 2022.

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

355195  Exception—ondisclosure by Royal Commissions

 (1) Section 355155 does not apply if:

 (a) the entity is a member of a Royal Commission to which column 2 of item 5 of the table in subsection 35570(1) relates; and

 (b) the information was acquired by the entity under item 5 of the table in subsection 35570(1); and

 (c) the record or disclosure is in accordance with section 6P of the Royal Commissions Act 1902.

Note 1: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

Note 2: Section 6P of the Royal Commissions Act 1902 sets out the circumstances in which a Royal Commission covered by that Act may disclose information it acquires in the course of its inquiry.

 (2) Section 355155 does not apply to particular information if the information was disclosed under subsection (1).

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

355200  Exception—records made in compliance with Australian laws

  Section 355155 does not apply if the record is made in compliance with a requirement of an *Australian law.

Example: The Australian Taxation Office obtains information about an entity from a credit reporting body by giving a notice under paragraph 35310(1)(c). The body is not committing an offence under section 355155 by making a written note of the disclosure as required by subsection 20E(5) of the Privacy Act 1988.

Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.

355205  Limits on ondisclosure to courts or tribunals

  An entity is not to be required to disclose to a court or tribunal *protected information that was acquired by the entity under Subdivision 355B or this Subdivision, except where it is necessary to do so for the purpose of carrying into effect the provisions of:

 (a) a *taxation law; or

 (b) if the entity has or had duties, functions or powers under the Foreign Acquisitions and Takeovers Act 1975—that Act.

Note: See also section 8ZK of this Act (about protection of witnesses).

355210  Limits on ondisclosure to Ministers

 (1) Sections 355170, 355180 and 355195 are the only exceptions to the prohibition in section 355155 on which an entity who has acquired *protected information (otherwise than as a *taxation officer) can rely in making a record of the information for, or disclosing the information to, a Minister, whether or not provided to a Minister in the course of, or for the purposes of or incidental to, the transacting of the business of a House of the Parliament or of a committee of one or both Houses of the Parliament.

Note: Disclosures that are not prohibited by section 355155 are not affected by this subsection. For example, an entity may disclose information to a Minister if the Minister is the entity to whom the information relates, or is another entity’s agent in relation to the information.

 (2) Subsection (1) has effect despite section 16 of the Parliamentary Privileges Act 1987, and that section does not operate to the extent that it would otherwise apply to a disclosure of *protected information by the entity to a Minister.

Note: This subsection does not limit the operation of section 16 of the Parliamentary Privileges Act 1987 in any other respect. That section continues to operate, for example, to enable an entity to disclose protected information to a committee of one or both Houses of the Parliament.

355215  Exception—ondisclosure of information disclosed to credit reporting bureaus

  Section 355155 does not apply if:

 (a) the information was originally disclosed under the exception in subsection 35572(1) or (4); and

 (b) the information was acquired by the entity under that exception or the exception in section 355175; and

 (c) when making the record, or disclosing the information, the entity is not:

 (i) a *credit reporting bureau; or

 (ii) an entity appointed or employed by, or otherwise performing services for, a credit reporting bureau.

Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.

Subdivision 355DDisclosure of protected information that has been unlawfully acquired

Guide to Subdivision 355D

355260  What this Subdivision is about

The disclosure of protected tax information that has been unlawfully acquired is prohibited.

Table of sections

Operative provisions

355265 Offence—disclosure of protected information acquired in breach of a taxation law

355270 Exception—disclosure of publicly available information

355275 Exception—disclosure in relation to a taxation law

355280 Limits on disclosure to courts and tribunals

Operative provisions

355265  Offence—disclosure of protected information acquired in breach of a taxation law

  An entity commits an offence if:

 (a) the entity:

 (i) makes a record of information; or

 (ii) discloses information to another entity (other than the entity to whom the information relates or that entity’s agent in relation to the information) or to a court or tribunal; and

 (b) the information is *protected information; and

 (c) the information was acquired by the entity in breach of a provision of a *taxation law (including this provision); and

 (d) the information was not acquired by the entity as a *taxation officer.

Penalty: Imprisonment for 2 years.

355270  Exception—disclosure of publicly available information

  Section 355265 does not apply if the information was already available to the public (otherwise than as a result of a contravention of that section, or section 35525 or 355155).

Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.

355275  Exception—disclosure in relation to a taxation law

  Section 355265 does not apply:

 (a) to the extent that the entity’s actions are required or permitted by a *taxation law or reasonably necessary in order to comply with an obligation imposed by a taxation law; or

 (b) if the record was made for or the information was disclosed:

 (i) to a *taxation officer; and

 (ii) for a purpose connected with administering a *taxation law.

Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code.

355280  Limits on disclosure to courts and tribunals

  An entity is not to be required to disclose to a court or tribunal *protected information that was acquired by the entity under this Subdivision, except where it is necessary to do so for the purpose of carrying into effect the provisions of a *taxation law.

Note: See also section 8ZK of this Act (about protection of witnesses).

Subdivision 355EOther matters

Guide to Subdivision 355E

355320  What this Subdivision is about

The Commissioner may require a taxation officer to make an oath of affirmation to protect information.

The Federal Court has power to grant an injunction restraining an entity from engaging in conduct that would constitute an offence against this Division.

The Commissioner must issue instructions relating to the disclosure of protected tax information.

Table of sections

Operative provisions

355325 Oath or affirmation to protect information

355330 Injunctions to prevent contravention of nondisclosure provisions

355335 Procedures for disclosing protected information

Operative provisions

355325  Oath or affirmation to protect information

 (1) A *taxation officer must, if and when required by the Commissioner to do so, make an oath or affirmation to protect information in accordance with this Division.

 (2) The Commissioner may determine, in writing:

 (a) the form of the oath or affirmation; and

 (b) the manner in which the oath or affirmation must be made.

355330  Injunctions to prevent contravention of nondisclosure provisions

Injunctions

 (1) If an entity has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute an offence against this Division, the Federal Court of Australia may, on the application of the Commissioner, grant an injunction:

 (a) restraining the entity from engaging in the conduct; and

 (b) if in the court’s opinion it is desirable to do so—requiring the entity to do any act or thing.

Interim injunctions

 (2) If an application is made to the court for an injunction under subsection (1), the court may, before considering the application, grant an interim injunction restraining an entity from engaging in conduct of the kind referred to in that subsection pending the determination of the application.

Discharge or variation of injunctions

 (3) The court may discharge or vary an injunction granted under this section.

Exercise of power to grant injunctions

 (4) If an application is made to the court for the grant of an injunction restraining an entity from engaging in conduct of a particular kind, the power of the court to grant the injunction may be exercised:

 (a) if the court is satisfied that the entity has engaged in conduct of that kind—whether or not it appears to the court that the entity intends to engage again, or to continue to engage, in conduct of that kind; or

 (b) if it appears to the court that, in the event that an injunction is not granted, it is likely that the entity will engage in conduct of that kind—whether or not the entity has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any other entity if the entity engages in conduct of that kind.

 (5) The power of the court to grant an injunction requiring an entity to do a particular act or thing may be exercised:

 (a) if the court is satisfied that the entity has refused or failed to do that act or thing—whether or not it appears to the court that the entity intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

 (b) if it appears to the court that, in the event that an injunction is not granted, it is likely that the entity will refuse or fail to do that act or thing—whether or not the entity has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any other entity if the entity refuses or fails to do that act or thing.

No undertakings as to damages

 (6) If the Commissioner makes an application to the court for the grant of an injunction under this section, the court must not require the Commissioner or any other entity, as a condition of the granting of an interim injunction, to give any undertakings as to damages.

Other powers of the court unaffected

 (7) The powers conferred on the court under this section are in addition to, and not in derogation of, any other powers of the court, whether conferred by this Act or otherwise.

355335  Procedures for disclosing protected information

 (1) The Commissioner must issue instructions in relation to the procedures to be followed by *taxation officers in disclosing *protected information under the exceptions in sections 35555 (about disclosures to Ministers), 35565 (about disclosures for other government purposes) and 35570 (about disclosures for law enforcement and related purposes).

 (2) The instructions must:

 (a) be issued within 6 months after the commencement of this section; and

 (b) be in writing; and

 (c) provide for the matters mentioned in subsection (3); and

 (d) be published on the Australian Taxation Office website.

 (3) The matters are:

 (a) the processes to be followed before *protected information can be disclosed by a *taxation officer under the exceptions in sections 35555, 35565 and 35570; and

 (b) the processes involved in obtaining and giving the agreement mentioned in paragraphs 35555(1)(c) and 35570(1)(c); and

 (c) other matters the Commissioner considers appropriate.

 (4) Without limiting subsection 33(3) of the Acts Interpretation Act 1901, the Commissioner may vary or revoke the instructions.

 (5) A failure to comply with the time limit in paragraph (2)(a) does not:

 (a) prevent the Commissioner from issuing the instructions after this time; or

 (b) affect the validity of the instructions when issued.

 (6) A failure to comply with the instructions does not, of itself, mean that a *taxation officer is not entitled to rely on the exceptions in sections 35555, 35565 and 35570.

 (7) The instructions are not a legislative instrument.

Division 356General administration of tax laws

Table of Subdivisions

 Guide to Division 356

356A Indirect tax laws

356B Major bank levy

356C Laminaria and Corallina decommissioning levy

Guide to Division 356

3561  What this Division is about

This Division gives the Commissioner the general administration of the indirect tax laws and the Major Bank Levy Act 2017.

Subdivision 356AIndirect tax laws

Table of sections

3565 Commissioner has general administration of indirect tax laws

3565  Commissioner has general administration of indirect tax laws

  The Commissioner has the general administration of each *indirect tax law.

Subdivision 356BMajor bank levy

Table of sections

35610 Commissioner has general administration of major bank levy

35610  Commissioner has general administration of major bank levy

  The Commissioner has the general administration of the Major Bank Levy Act 2017.

Subdivision 356CLaminaria and Corallina decommissioning levy

Table of sections

35615 Commissioner has general administration of Laminaria and Corallina decommissioning levy

35615  Commissioner has general administration of Laminaria and Corallina decommissioning levy

  The Commissioner has the general administration of the Offshore Petroleum (Laminaria and Corallina Decommissioning Cost Recovery Levy) Act 2022.

Part 55Rulings

Division 357Object and common rules

Table of Subdivisions

 Guide to Division 357

357A Object of this Part

357B Common rules for rulings

Guide to Division 357

3571  What this Division is about

This Division sets out the object of this Part, and common rules that apply to public, private and oral rulings. (For the rules specific to each of those kinds of ruling, see Divisions 358, 359, 360 and 362.)

A ruling is an expression of the Commissioner’s opinion of the way in which a relevant provision applies, or would apply, to you.

A ruling binds the Commissioner if it applies to you and you act in accordance with it. If you do act in accordance with it and the law turns out to be less favourable to you than the ruling provides, you are protected by the ruling from any adverse consequences.

The Division also sets out some other general rules for rulings.

Note: In limited circumstances, Industry Innovation and Science Australia can make rulings.

Subdivision 357AObject of this Part

Table of sections

3575 Object of this Part

3575  Object of this Part

 (1) The object of this Part is to provide a way for you to find out the Commissioner’s view about how certain laws administered by the Commissioner apply to you so that the risks to you of uncertainty when you are self assessing or working out your tax obligations or entitlements are reduced.

 (2) This object is achieved by:

 (a) making advice in the form of rulings by the Commissioner available on a wide range of matters and to many taxpayers; and

 (b) ensuring that the Commissioner provides rulings in a timely manner; and

 (c) enabling the Commissioner to obtain, and make rulings based on, relevant information; and

 (d) protecting you from increases in tax and from penalties and interest where you rely on rulings; and

 (e) protecting you from decreases in entitlements where you rely on rulings; and

 (f) limiting the ways the Commissioner can alter rulings to your detriment; and

 (g) giving you protection from interest charges where you rely on other advice from the Commissioner, or on the Commissioner’s general administrative practice.

 (3) A further object of this Part is to provide a way for you to find out *Industry Innovation and Science Australia’s view about whether activities are not ineligible activities for the purposes of applying capital gains tax provisions to venture capital investments.

Note: For rulings by Industry Innovation and Science Australia: see Division 362.

Subdivision 357BCommon rules for rulings

Table of sections

Rules for all rulings

35750 Scope of Division

35755 The provisions that are relevant for rulings

35760 When rulings are binding on the Commissioner

35765 Stopping relying on a ruling

35770 Commissioner may apply the law if more favourable than the ruling

35775 Inconsistent rulings

35780 Contracts for schemes

35785 Effect on ruling if relevant provision reenacted

35790 Validity of ruling not affected by formal defect

Common rules for public and private rulings

35795 Electronic communications

Common rules for private and oral rulings

357105 Further information must be sought

357110 Assumptions in making private or oral ruling

357115 Additional information provided by applicant

357120 Commissioner may take into account information from third parties

357125 Applications and objections not to affect obligations and powers

Rules for all rulings

35750  Scope of Division

  This Division applies to *public rulings, *private rulings and *oral rulings.

Note: Section 36270 modifies how this Subdivision applies to rulings by Industry Innovation and Science Australia.

35755  The provisions that are relevant for rulings

  Provisions of Acts and regulations of which the Commissioner has the general administration are relevant for rulings if the provisions are about any of the following:

 (a) *tax;

 (b) *Medicare levy;

 (c) fringe benefits tax;

 (d) *franking tax;

 (e) *withholding tax;

 (f) *mining withholding tax;

 (fa) *petroleum resource rent tax;

 (fb) *indirect tax;

 (fc) *excise duty;

 (fd) levy under the Major Bank Levy Act 2017;

 (fe) *Laminaria and Corallina decommissioning levy;

 (g) the administration or collection of those taxes, levies and duties;

 (h) a grant or benefit mentioned in section 8 of the Product Grants and Benefits Administration Act 2000, or the administration or payment of such a grant or benefit;

 (i) a *net fuel amount, or the administration of a net fuel amount;

 (ia) an *assessed net fuel amount, or the collection or payment of an assessed net fuel amount;

 (j) a *net amount, or the administration of a net amount;

 (ja) an *assessed net amount, or the collection or payment of an assessed net amount;

 (k) a *wine tax credit, or the administration or payment of a wine tax credit.

35760  When rulings are binding on the Commissioner

 (1) Subject to subsection (5), a ruling binds the Commissioner in relation to you (whether or not you are aware of the ruling) if:

 (a) the ruling applies to you; and

 (b) you rely on the ruling by acting (or omitting to act) in accordance with the ruling.

Example 1: A public ruling is expressed to apply to a class of entities in relation to a particular scheme. Tim is a member of that class of entities and he is one of a number of taxpayers who enter into that scheme. The ruling applies to Tim.

 Tim relies on the ruling by lodging an income tax return that is in accordance with the ruling.

 Under the ruling, Tim’s deductions in relation to the scheme are worked out to be a particular amount. Because Tim has relied on the ruling, the Commissioner must use that amount in making Tim’s assessment (unless Tim stops relying on the ruling or the law is more favourable to him: see sections 35765 and 35770).

Example 2: Cecelia applies for, and obtains, a private ruling that, when she makes a payment in specified circumstances, she would not have to withhold an amount under a relevant provision. Cecelia makes the payment in the circumstances specified in the ruling, so the ruling applies to her.

 Cecelia relies on the ruling by not withholding an amount from the payment. The Commissioner must not apply the provision in relation to Cecelia in a way that is inconsistent with the ruling (unless Cecelia stops relying on the ruling or the law is more favourable to her: see sections 35765 and 35770).

Example 3: Cathie obtains a private ruling that a type of supply she makes is GSTfree. She relies on the ruling by:

(a) giving her customers invoices that show no GST payable on the supplies; and

(b) lodging her GST return on the basis that the supplies are GSTfree.

 The Commissioner must administer the GST law in relation to Cathie on the basis that the supplies to which the ruling relates are GSTfree. This does not apply if Cathie stops relying on the ruling, such as by issuing tax invoices that show GST payable on the supplies: see paragraph (1)(b).

Note 1: A ruling about the amount of tax payable that binds the Commissioner provides protection in relation to that amount. There is no shortfall interest charge or tax shortfall penalty payable in respect of that amount as there can be no shortfall in tax payable.

Note 2: A ruling about the operation of a provision would stop applying to you if the provision is repealed, or is amended to have a different effect. However, if the provision is reenacted and expresses the same ideas as the old provision, the ruling would still apply: see section 35785.

 (2) You may rely on the ruling at any time unless prevented from doing so by a time limit imposed by a *taxation law. It is not necessary to do so at the first opportunity.

GST rulings

 (3) The *GST payable on a *supply or importation is the amount worked out in accordance with a ruling (if any) that:

 (a) relates to the GST payable on the supply or importation; and

 (b) binds the Commissioner in relation to the supplier or importer.

Note: The ruling will stop affecting the GST payable if the supplier or importer stops relying on the ruling: see paragraph (1)(b).

 (4) Subsection (3) does not apply for the purposes of an objection to the ruling under section 35960.

Indirect tax rulings

 (5) An *indirect tax or excise ruling (except to the extent that the ruling relates to an *excise law) binds the Commissioner in relation to:

 (a) an entity (the representative entity) that is:

 (i) the *representative member of a *GST group; or

 (ii) the *joint venture operator of a *GST joint venture; or

 (iii) the *representative of an *incapacitated entity; and

 (b) an entity (the member entity) that is:

 (i) a *member of the GST group; or

 (ii) a *participant in the GST joint venture; or

 (iii) the incapacitated entity;

if, and only if, both the representative entity and the member entity rely on the ruling by acting (or omitting to act) in accordance with the ruling.

 (6) Subsection (5) applies if:

 (a) the ruling applies to the member entity; and

 (b) the ruling relates to what would be:

 (i) a liability of the member entity to *indirect tax; or

 (ii) an entitlement of the member entity to a credit (other than a *fuel tax credit) under an *indirect tax law; or

 (iii) an *increasing adjustment, a *decreasing adjustment, or a luxury car tax adjustment (within the meaning of the *Luxury Car Tax Act), that the member entity has;

  if the rules in the indirect tax law relating to *GST groups, *GST joint ventures or *incapacitated entities did not apply; and

 (c) because of those rules:

 (i) if that indirect tax were payable, it would be payable by the representative entity; or

 (ii) if there was an entitlement to that credit, it would be an entitlement of the representative entity; or

 (iii) if any entity had that adjustment, it would be an adjustment that the representative entity had.

35765  Stopping relying on a ruling

 (1) You can stop relying on a ruling. You do this by acting (or omitting to act) in a way that is not in accordance with the ruling.

Note: There is no penalty for a shortfall resulting from failing to follow a ruling. However, there are penalties for shortfalls resulting from failing to take reasonable care, and from taking a position about a large income tax item that is not reasonably arguable: see Division 284.

 (2) You may stop relying on a ruling at any time unless prevented from doing so by a time limit imposed by a *taxation law.

 (3) Having stopped relying on a ruling, you may rely on the ruling again unless prevented from doing so by a time limit imposed by a *taxation law.

35770  Commissioner may apply the law if more favourable than the ruling

 (1) The Commissioner may apply a relevant provision to you in the way it would apply if you had not relied on a ruling if:

 (a) doing so would produce a more favourable result for you; and

 (b) the Commissioner is not prevented from doing so by a time limit imposed by a *taxation law.

 (2) The Commissioner does not have a duty to consider whether to apply subsection (1) to you, whether he or she is requested to do so by you or by any other entity.

35775  Inconsistent rulings

 (1) The rules in this table have effect if:

 (a) a ruling and a later ruling both apply to you; and

 (b) the 2 rulings are inconsistent.

However, the rules in the table only apply to the extent of the inconsistency, and do not apply to *indirect tax or excise rulings.

 

Inconsistent rulings (other than indirect tax or excise rulings)

Item

If the earlier ruling is:

And the later inconsistent ruling is:

The result is:

1

A *public ruling

Any ruling

You may rely on either ruling.

2

A *private ruling or an *oral ruling

A private ruling or an oral ruling

If you informed the Commissioner about the existence of the earlier ruling when you applied for the later ruling, the earlier ruling is taken not to have been made.

Otherwise, the later ruling is taken not to have been made.

3

A *private ruling or an *oral ruling

A *public ruling

The earlier ruling is taken not to have been made if, when the later ruling is made:

(a) the income year or other period to which the rulings relate has not begun; and

(b) the *scheme to which the rulings relate has not begun to be carried out.

Otherwise, you may rely on either ruling.

 (1A) If:

 (a) 2 inconsistent *indirect tax or excise rulings apply to you; and

 (b) the rulings are both *public rulings;

then, to the extent of the inconsistency, you may rely on either of the rulings.

 (1B) If:

 (a) 2 inconsistent *indirect tax or excise rulings apply to you; and

 (b) at least one of the rulings is not a *public ruling;

then, to the extent of the inconsistency:

 (c) the later ruling is taken to apply from the later of:

 (i) the time it is made; and

 (ii) the time (if any) specified in the ruling as being the time from which it begins to apply; and

 (d) the earlier ruling is taken to cease to apply at that later time.

 (2) If 3 or more rulings apply to you and the rulings are inconsistent, apply the rules in this section to each combination of 2 rulings in the order in which they were made.

35780  Contracts for schemes

  For the purposes of this Part, if a contract requiring a *scheme has been entered into, the scheme is taken to have begun to be carried out.

35785  Effect on ruling if relevant provision reenacted

  If:

 (a) the Commissioner makes a ruling about a relevant provision (the old provision); and

 (b) that provision is reenacted or remade (with or without modifications, and whether or not the old provision is repealed);

the ruling is taken also to be a ruling about that provision as reenacted or remade (the new provision), but only so far as the new provision expresses the same ideas as the old provision.

Note 1: Section 35755 specifies the relevant provisions.

Note 2: Ideas in taxation provisions are not necessarily different just because different forms of words are used: see section 15AC of the Acts Interpretation Act 1901 and section 13 of the Income Tax Assessment Act 1997.

35790  Validity of ruling not affected by formal defect

  The validity of a ruling is not affected merely because a provision of this Part relating to the form of the ruling or the procedure for making it has not been complied with.

Common rules for public and private rulings

35795  Electronic communications

  A communication between the Commissioner and another entity made for the purposes of a *public ruling or *private ruling may be made electronically.

Common rules for private and oral rulings

357105  Further information must be sought

 (1) If the Commissioner considers that further information is required to make a *private ruling or an *oral ruling, the Commissioner must request the applicant to give that information to him or her.

Note: The Commissioner should make a private ruling within 60 days. However, if the Commissioner requests further information under this section, that period is extended: see subsection 35950(2).

 (2) The Commissioner may decline to make the ruling if the applicant does not give the information to the Commissioner within a reasonable time.

Note: The Commissioner must give the applicant written reasons for declining to make a private ruling: see section 35935.

357110  Assumptions in making private or oral ruling

 (1) If the Commissioner considers that the correctness of a *private ruling or an *oral ruling would depend on which assumptions were made about a future event or other matter, the Commissioner may:

 (a) decline to make the ruling; or

 (b) make such of the assumptions as the Commissioner considers to be most appropriate.

 (2) Before making the ruling, the Commissioner must:

 (a) tell the applicant which assumptions (if any) the Commissioner proposes to make; and

 (b) give the applicant a reasonable opportunity to respond.

Note: The Commissioner should make a private ruling within 60 days. However, if the Commissioner tells the applicant about assumptions the Commissioner proposes to make under this section, that period is extended: see subsection 35950(2).

357115  Additional information provided by applicant

  In considering an application for a *private ruling or an *oral ruling, the Commissioner may take into account additional information provided by the applicant after the application was made (whether in response to a request under section 357105 or otherwise).

357120  Commissioner may take into account information from third parties

  In making a *private ruling or an *oral ruling, the Commissioner may take into account any relevant information provided by an entity other than the applicant (whenever it was provided) if the Commissioner:

 (a) tells the applicant what that information is and that the Commissioner intends to take the information into account; and

 (b) gives the applicant a reasonable opportunity to respond before making the ruling.

Note: The Commissioner should make a private ruling within 60 days. However, if the Commissioner tells the applicant about third party information under this section, that period is extended: see subsection 35950(2).

357125  Applications and objections not to affect obligations and powers

  The fact that you have applied for a *private ruling or an *oral ruling, or have made an objection against a private ruling, does not affect:

 (a) your obligation to lodge a return or do anything else; or

 (b) the Commissioner’s power to make or amend an assessment or do anything else.

Division 358Public rulings

Guide to Division 358

3581  What this Division is about

A public ruling is an expression of the Commissioner’s opinion of the way in which a relevant provision applies, or would apply, to entities generally or a class of entities.

The Commissioner must publish the ruling.

A public ruling may be withdrawn.

Note: Division 357 has some rules that relate to rulings generally.

Table of sections

Making public rulings

3585 What is a public ruling?

35810 Application of public rulings

35815 When a public ruling ceases to apply

Withdrawing public rulings

35820 Withdrawing public rulings

Making public rulings

3585  What is a public ruling?

 (1) The Commissioner may make a written ruling on the way in which the Commissioner considers a relevant provision applies or would apply to:

 (a) entities generally or a class of entities; or

 (b) entities generally, or a class of entities, in relation to a class of *schemes; or

 (c) entities generally, or a class of entities, in relation to a particular scheme.

Note: Section 35755 specifies the relevant provisions.

 (2) Such a ruling may cover any matter involved in the application of the provision.

 (3) Such a ruling is a public ruling if it:

 (a) is published; and

 (b) states that it is a public ruling.

 (4) The Commissioner must, by notifiable instrument, publish notice of the making of a *public ruling.

Note: The validity of a ruling is not affected merely because a provision of this Part relating to the form of the ruling or the procedure for making it has not been complied with: see section 35790.

35810  Application of public rulings

 (1) A *public ruling applies from the time it is published or from such earlier or later time as is specified in the ruling.

 (2) A *public ruling, other than an *indirect tax or excise ruling, that relates to a *scheme does not apply to you if the scheme has begun to be carried out when the ruling is published and:

 (a) the ruling changes the Commissioner’s general administrative practice; and

 (b) the ruling is less favourable to you than the practice.

35815  When a public ruling ceases to apply

 (1) A *public ruling may specify the time at which it ceases to apply.

 (2) If a *public ruling does not do this, it applies until it is withdrawn.

Withdrawing public rulings

35820  Withdrawing public rulings

 (1) The Commissioner may, by notifiable instrument, withdraw a *public ruling, either wholly or to an extent.

 (2) The withdrawal takes effect from the time specified in the instrument. That time must not be before the day after the instrument is registered on the Federal Register of Legislation under the Legislation Act 2003.

 (3) To the extent that a *public ruling, other than an *indirect tax or excise ruling, is withdrawn, it continues to apply to *schemes to which it applied that had begun to be carried out before the withdrawal but does not apply to schemes that begin to be carried out after the withdrawal.

Note: A scheme is taken to have begun to be carried out if a contract requiring the scheme has been entered into: see section 35780.

Division 359Private rulings

Guide to Division 359

3591  What this Division is about

A private ruling is an expression of the Commissioner’s opinion of the way in which a relevant provision applies, or would apply, to you in relation to a specified scheme. Private rulings are usually made on application by you, your agent or your legal personal representative.

The Commissioner must make the ruling applied for, except in certain cases. If you are entitled to receive a ruling, you can object if the Commissioner takes too long to make it.

The Commissioner must record the ruling in writing and give a copy of it to you. The ruling must include certain details.

If you are dissatisfied with the ruling, you may object to it.

Note: Division 357 has some common rules that affect private rulings.

Table of sections

Private rulings

3595 Private rulings

35910 Applying for a private ruling

35915 Private rulings to be given to applicants

35920 Private rulings must contain certain details

35925 Time of application of private rulings

35930 Ruling for trustee of a trust

35935 Dealing with applications

35940 Valuations

35945 Related rulings

35950 Delays in making private rulings

35955 Revised private rulings

35960 Objections, reviews and appeals relating to private rulings

35965 Commissioner may consider new information on objection

35970 Successful objection decision alters ruling

Private rulings

3595  Private rulings

 (1) The Commissioner may, on application, make a written ruling on the way in which the Commissioner considers a relevant provision applies or would apply to you in relation to a specified *scheme. Such a ruling is called a private ruling.

Note: Section 35755 specifies the relevant provisions.

 (2) A *private ruling may cover any matter involved in the application of the provision.

35910  Applying for a private ruling

 (1) You, your *agent or your *legal personal representative may apply to the Commissioner for a *private ruling.

 (2) An application for a *private ruling must be made in the *approved form.

 (3) You, your *agent or your *legal personal representative may withdraw the application at any time before the ruling is made. The Commissioner must confirm the withdrawal in writing.

35915  Private rulings to be given to applicants

  The Commissioner makes a *private ruling by recording the ruling in writing and giving a copy of it to the applicant. The copy may be given electronically.

35920  Private rulings must contain certain details

 (1) A *private ruling must state that it is a private ruling.

 (2) A *private ruling must identify the entity to whom it applies and specify the relevant *scheme and the relevant provision to which it relates.

Note 1: The Commissioner must tell the applicant which assumptions the Commissioner made in making the ruling: see section 357110.

Note 2: Section 35755 specifies the relevant provisions.

35925  Time of application of private rulings

 (1) A *private ruling may specify the time from which it begins to apply and the time at which it ceases to apply.

 (2) The specified start time, or end time, may be before, when, or after the *private ruling is made and may be determined by reference to a specified event.

 (3) A *private ruling that does not specify a start time applies from the time when it is made.

 (4) A *private ruling, other than an *indirect tax or excise ruling, that does not specify an end time ceases to apply at the end of the income year or other accounting period in which it started to apply.

Note: A private ruling that:

(a) is an indirect tax or excise ruling; and

(b) does not specify an end time;

 continues to apply until it is overridden by a later indirect tax or excise ruling: see subsection 35775(1B).

35930  Ruling for trustee of a trust

  A *private ruling given to or for the trustee of a trust and relating to the affairs of the trust also applies to:

 (a) if the ruling is not an *indirect tax or excise ruling—the beneficiaries of the trust; and

 (b) in any case—another trustee who is appointed to replace a trustee.

35935  Dealing with applications

 (1) The Commissioner must comply with an application for a *private ruling and make the ruling. However, this obligation is subject to subsections (2) and (3).

 (2) The Commissioner may decline to make a *private ruling if:

 (a) the Commissioner considers that making the ruling would prejudice or unduly restrict the administration of a *taxation law; or

 (b) the matter sought to be ruled on is already being, or has been, considered by the Commissioner for you.

 (3) The Commissioner may also decline to make a *private ruling if the matter sought to be ruled on is how the Commissioner would exercise a power under a relevant provision and the Commissioner has decided or decides whether or not to exercise the power.

Example: Michael applies for a private ruling on the way in which the Commissioner might exercise the Commissioner’s discretion under section 25510 (deferring the payment time). Rather than make the ruling, the Commissioner decides to defer the time at which an amount would otherwise be payable by Michael.

Note: The Commissioner may also decline to make a private ruling if:

(a) the Commissioner has requested the applicant to give further information under section 357105 and the applicant has not given it to the Commissioner within a reasonable time; or

(b) the Commissioner considers that the correctness of a private ruling would depend on which assumptions were made about a future event or other matter (see section 357110).

 (4) The Commissioner must give the applicant written reasons for declining to make a *private ruling.

35940  Valuations

 (1) If making a *private ruling would require determining the value of any thing, the Commissioner may:

 (a) refer the valuation to a valuer; or

 (b) refer a valuation provided by the applicant to a valuer for review.

Note: The Commissioner may request further information: see section 357105.

 (2) If the Commissioner refers the valuation to a valuer, the Commissioner must tell the applicant that he or she has done so.

 (3) When the valuer has completed its work in relation to the valuation, the Commissioner must tell the applicant that it has done so.

Note: The Commissioner should make a private ruling within 60 days. However, if the Commissioner refers a valuation to a valuer under this section, that period is extended: see subsection 35950(2).

 (4) The Commissioner may charge the applicant an amount in accordance with the regulations for the valuer making or reviewing the valuation.

 (5) This section does not apply to a valuation of a gift or contribution for the purposes of Division 30 of the Income Tax Assessment Act 1997.

35945  Related rulings

  If the Commissioner is making a *private ruling (the first ruling) you sought on the way in which, in the Commissioner’s opinion, a relevant provision applies or would apply to you, the Commissioner may:

 (a) make the first ruling a ruling on the way in which another relevant provision applies or would apply to you; or

 (b) make an additional private ruling on the way in which:

 (i) another relevant provision applies or would apply; or

 (ii) a relevant provision applies or would apply to you in relation to a *scheme related to the scheme to which the first ruling applies.

Note: Section 35755 specifies the relevant provisions.

35950  Delays in making private rulings

 (1) The applicant for a *private ruling may give the Commissioner a written notice requiring him or her to make the ruling if, at the end of 60 days after the application was made, the Commissioner has neither:

 (a) made the ruling; nor

 (b) told the applicant that the Commissioner has declined to make the ruling.

 (2) The 60 day period mentioned in subsection (1) is extended in a circumstance applicable under the table by the extension period applicable to that circumstance. If 2 or more circumstances are applicable, ignore any overlap between the periods of extension.

 

Extending the 60 day period

Item

If the Commissioner, during the 60 day period:

The 60 day period is extended by the number of days in this period:

1

requests further information under section 357105

the period starting on the day the information was requested and ending on the day it is received by the Commissioner

2

tells the applicant about assumptions the Commissioner proposes to make under section 357110

the period starting on the day the Commissioner tells the applicant and ending on the day on which the Commissioner receives the applicant’s response about the assumptions

3

tells the applicant about information provided by a third party that the Commissioner proposes to take into account under section 357120

the period starting on the day the Commissioner tells the applicant and ending on the day on which the Commissioner receives the applicant’s response about the information

4

refers a valuation to a valuer under section 35940

the period starting on the day the Commissioner tells the applicant about the referral and ending on the day on which the Commissioner tells the applicant that the valuer has completed its work in relation to the valuation

 (3) The applicant may object, in the manner set out in Part IVC, against the Commissioner’s failure to make the ruling if the Commissioner:

 (a) does not make the ruling within 30 days of the notice under subsection (1) being given; and

 (b) has not otherwise declined to make the ruling by the end of that period.

 (4) The applicant must lodge with the objection a draft *private ruling.

35955  Revised private rulings

 (1) The Commissioner may make a revised *private ruling that applies to you if:

 (a) the Commissioner had previously made a private ruling that applies to you; and

 (b) if the ruling is not an *indirect tax or excise ruling—when the Commissioner makes the revised private ruling:

 (i) the *scheme to which the earlier ruling relates has not begun to be carried out; and

 (ii) if the earlier ruling relates to an income year or other accounting period—that year or period has not begun.

Note: Your private ruling may be affected by a later inconsistent ruling: see section 35775.

 (2) The Commissioner must give you a copy of the revised *private ruling. The copy may be given electronically.

 (3) The Commissioner may make the revised *private ruling whether or not there is an application for the revised ruling.

 (4) When the revised *private ruling is made, the ruling in its initial form stops applying to you.

 (5) However, if:

 (a) the *private ruling is an *indirect tax or excise ruling; and

 (b) the revised private ruling specifies the time from which the revision begins to apply (being a time after the time the revision is made);

the ruling in its initial form stops applying to you at the time so specified.

35960  Objections, reviews and appeals relating to private rulings

 (1) You may object against a *private ruling that applies to you in the manner set out in Part IVC if you are dissatisfied with it.

 (2) The ruling is taken to be a taxation decision (within the meaning of that Part).

 (3) However, you cannot object against a *private ruling if:

 (a) there is an assessment for you for the income year or other accounting period to which the ruling relates; or

 (b) the ruling relates to *withholding tax or *mining withholding tax that has become due and payable; or

 (c) all of the following subparagraphs apply:

 (i) the ruling relates to *excise duty, or another amount, payable in relation to the goods under an *excise law;

 (ii) the Commissioner has made a decision about the excise duty, or other amount, payable in relation to those goods;

 (iii) the decision is reviewable under an excise law.

35965  Commissioner may consider new information on objection

 (1) In deciding whether to allow (wholly or in part), or to disallow, an objection under Part IVC against a *private ruling, the Commissioner may consider any additional information that the Commissioner did not consider when making the ruling.

 (2) For information you do not have, the Commissioner must tell you what the information is and give you a reasonable opportunity to respond before allowing or disallowing the objection.

 (3) However, if the Commissioner considers that the additional information is such that the *scheme to which the application related is materially different from the scheme to which the ruling relates:

 (a) the Commissioner must request the applicant to make an application for another *private ruling; and

 (b) the objection is taken not to have been made.

35970  Successful objection decision alters ruling

  A *private ruling has effect as altered by an objection decision (within the meaning of Part IVC) made by the Commissioner if:

 (a) the Commissioner made the decision allowing, wholly or in part, a taxation objection (within the meaning of that Part) against the ruling; and

 (b) the period in which an appeal against, or an application for the review of, the decision may be made has ended without such an appeal or application being made.

Note: See sections 14ZZC and 14ZZN for the time limits.

Division 360Oral rulings

Guide to Division 360

3601  What this Division is about

An oral ruling is an expression of the Commissioner’s opinion of the way in which a relevant provision applies, or would apply, to you. Oral rulings are given on oral application by you or your legal personal representative.

Oral rulings can only be given for individuals.

The Commissioner must give the ruling unless he or she considers that the advice you are seeking relates to a business matter or a complex matter.

The Commissioner must give the ruling orally and must give you a registration identifier for the ruling.

Note: Division 357 has some common rules that affect oral rulings.

Table of sections

Oral rulings

3605 Applying for and making of oral rulings

36010 Withdrawing an application for an oral ruling

36015 Commissioner determinations

Oral rulings

3605  Applying for and making of oral rulings

Applying for oral rulings

 (1) If you are an individual, you or your *legal personal representative may apply to the Commissioner for advice on the way in which the Commissioner considers a relevant provision applies or would apply to you in relation to a specified *scheme.

Note: Section 35755 specifies the relevant provisions.

 (2) An application under this section must be made orally and in the manner determined under section 36015.

 (2A) You or your *legal personal representative must not apply for advice under this section in relation to:

 (a) an *indirect tax law (other than the *fuel tax law); or

 (b) an *excise law.

Making of oral rulings

 (3) The Commissioner must give you or your *legal personal representative that advice unless:

 (a) the Commissioner considers that the advice sought relates to a *business matter or a complex matter; or

 (b) the matter sought to be ruled on is already being, or has been, considered by the Commissioner for you.

That advice is an oral ruling.

Note: The Commissioner may also decline to make an oral ruling if:

(a) the Commissioner has requested you to give further information under section 357105 and you have not given it to the Commissioner; or

(b) the Commissioner considers that the correctness of an oral ruling would depend on which assumptions were made about a future event or other matter (see section 357110).

 (4) The Commissioner must give that advice orally and in the manner determined under section 36015. That advice must include a registration identifier for the ruling.

Note: The Commissioner must tell you which assumptions the Commissioner made in making the ruling: see section 357110.

 (5) You are not entitled to receive a written record of that advice.

Note: However, you may be able to apply for a private ruling on the matter under Division 359.

36010  Withdrawing an application for an oral ruling

 (1) You or your *legal personal representative may withdraw an application under section 3605 before the Commissioner makes the *oral ruling.

 (2) The withdrawal must be done orally and in the manner determined under section 36015.

36015  Commissioner determinations

  The Commissioner must, by writing, determine:

 (a) the manner in which oral applications are to be made under section 3605 or are to be withdrawn; and

 (b) the manner in which the Commissioner is to give oral advice under that section.

Division 361Nonruling advice and general administrative practice

Table of sections

3615 Nonruling advice and general administrative practice

3615  Nonruling advice and general administrative practice

 (1) You are not liable to pay the *general interest charge or the *shortfall interest charge under a relevant provision to the extent that the charge would relate to a *shortfall amount or a *scheme shortfall amount that was caused by:

 (a) you reasonably relying in good faith on:

 (i) advice (other than a ruling) given to you or your *agent by the Commissioner; or

 (ii) a statement in a publication approved in writing by the Commissioner;

  unless the advice, or the statement or publication, is labelled as nonbinding; or

 (b) you reasonably relying in good faith on the Commissioner’s general administrative practice.

Note: Section 35755 specifies the relevant provisions.

 (2) However, subsection (1) does not apply to any *general interest charge accruing more than 21 days after the Commissioner notifies you of the correct position.

Division 362Rulings by Industry Innovation and Science Australia that activities are not ineligible activities

Guide to Division 362

3621  What this Division is about

Industry Innovation and Science Australia may make public rulings and private rulings expressing its view on whether activities are not ineligible activities for the purposes of applying capital gains tax provisions to venture capital investments.

Note: An entity’s involvement in ineligible activities can affect whether an investment is an eligible venture capital investment for the purpose of accessing a capital gains tax exemption under Subdivision 118F of the Income Tax Assessment Act 1997.

Table of sections

Public rulings by Industry Innovation and Science Australia

3625 Industry Innovation and Science Australia may make public rulings on a specified class of activities

36210 Application of public rulings

36215 When a public ruling ceases to apply

36220 Withdrawing public rulings

Private rulings by Industry Innovation and Science Australia

36225 Industry Innovation and Science Australia may make private rulings on a specified activity

36230 Applying for a private ruling

36235 Industry Innovation and Science Australia must give notice of its decision

36240 Private rulings must contain certain details

36245 Application of private rulings

36250 Delays in making private rulings

36255 When a private ruling ceases to apply

36260 Withdrawing private rulings

General provisions

36265 When rulings are binding on the Commissioner and Industry Innovation and Science Australia

36270 Application of common rules under Subdivision 357B

36275 Application of Divisions 358 and 359

Public rulings by Industry Innovation and Science Australia

3625  Industry Innovation and Science Australia may make public rulings on a specified class of activities

 (1) *Industry Innovation and Science Australia may make a ruling that Industry Innovation and Science Australia considers that activities included in a specified class of activities:

 (a) are not ineligible activities for the purposes of subsections 118425(13) and 118427(14) of the Income Tax Assessment Act 1997; or

 (b) in specified circumstances, are not such ineligible activities;

if Industry Innovation and Science Australia is satisfied that the activities included in that class are not such ineligible activities, or are not in those circumstances such ineligible activities, as the case requires.

Note: An activity will not be an ineligible activity for the purposes of subsections 118425(13) and 118427(14) of the Income Tax Assessment Act 1997 if, for example, it is covered by subsections 118425(13A) and 118427(14A) of that Act.

 (2) Such a ruling is a public ruling if it:

 (a) is published; and

 (b) states that it is a public ruling.

 (3) *Industry Innovation and Science Australia must, by notifiable instrument, publish notice of the making of a *public ruling.

Note: The validity of a ruling is not affected merely because a provision of this Part relating to the form of the ruling or the procedure for making it has not been complied with: see section 35790.

36210  Application of public rulings

  A *public ruling under this Division applies from the time it is published or from such earlier or later time as is specified in the ruling.

36215  When a public ruling ceases to apply

 (1) A *public ruling under this Division may specify the time at which it ceases to apply.

 (2) If a *public ruling under this Division does not do this, it applies until it is withdrawn.

36220  Withdrawing public rulings

 (1) *Industry Innovation and Science Australia must, by notifiable instrument, withdraw a *public ruling made under this Division if:

 (a) it is no longer satisfied of the matter about which it was required to be satisfied under subsection 3625(1); or

 (b) the ruling is inconsistent with a decision of a court.

 (2) The withdrawal takes effect from the time specified in the instrument. That time must not be before the day after the instrument is registered on the Federal Register of Legislation under the Legislation Act 2003.

Private rulings by Industry Innovation and Science Australia

36225  Industry Innovation and Science Australia may make private rulings on a specified activity

 (1) *Industry Innovation and Science Australia may, on application, make a ruling that Industry Innovation and Science Australia considers that a specified activity:

 (a) is not an ineligible activity for the purposes of subsections 118425(13) and 118427(14) of the Income Tax Assessment Act 1997; or

 (b) in specified circumstances, is not such an ineligible activity;

if Industry Innovation and Science Australia is satisfied that the activity is not such an ineligible activity, or is not in those circumstances such an ineligible activity, as the case requires.

Note: An activity will not be an ineligible activity for the purposes of subsections 118425(13) and 118427(14) of the Income Tax Assessment Act 1997 if, for example, it is covered by subsections 118425(13A) and 118427(14A) of that Act.

 (2) Such a ruling is a private ruling.

Note: Decisions making such a ruling, and decisions refusing to make such a ruling, are reviewable under Part 5 of the Venture Capital Act 2002.

 (3) In considering whether to make a *private ruling under this Division, *Industry Innovation and Science Australia must apply any principles made under subsection (4).

 (4) *Industry Innovation and Science Australia may, by legislative instrument, make principles about making *private rulings under this Division.

 (5) A failure to comply with subsection (3) does not affect the validity of the ruling.

36230  Applying for a private ruling

  A *general partner of a *limited partnership registered as a *VCLP, an *ESVCLP or an *AFOF may, in the *form approved by *Industry Innovation and Science Australia, apply to Industry Innovation and Science Australia for a *private ruling under this Division.

36235  Industry Innovation and Science Australia must give notice of its decision

 (1) If *Industry Innovation and Science Australia makes a *private ruling under this Division, Industry Innovation and Science Australia must notify the *general partner, and the Commissioner, as soon as practicable after the ruling is made.

 (2) If *Industry Innovation and Science Australia refuses to make a *private ruling under this Division, Industry Innovation and Science Australia must:

 (a) notify the *general partner as soon as practicable after the refusal; and

 (b) provide reasons for the refusal.

36240  Private rulings must contain certain details

 (1) A *private ruling under this Division must state that it is a private ruling.

 (2) A *private ruling under this Division must identify the entity to whom it applies and specify the activity to which it relates.

Note: Industry Innovation and Science Australia must tell the applicant which assumptions Industry Innovation and Science Australia made in making the ruling: see section 357110.

36245  Application of private rulings

  A *private ruling under this Division applies from the time it is published or from such earlier or later time as is specified in the ruling.

36250  Delays in making private rulings

 (1) The applicant for a *private ruling under this Division may give *Industry Innovation and Science Australia a written notice requiring Industry Innovation and Science Australia to make the ruling if, at the end of 60 days after the application was made, Industry Innovation and Science Australia has neither:

 (a) made the ruling; nor

 (b) told the applicant that Industry Innovation and Science Australia has refused to make the ruling.

 (2) The 60 day period mentioned in subsection (1) is extended in a circumstance applicable under the table by the extension period applicable to that circumstance. If 2 or more circumstances are applicable, ignore any overlap between the periods of extension.

 

Extending the 60 day period

Item

If *Industry Innovation and Science Australia, during the 60 day period:

The 60 day period is extended by the number of days in this period:

1

requests further information under section 357105 (as that section applies because of section 36270)

the period starting on the day the information was requested and ending on the day it is received by *Industry Innovation and Science Australia

2

tells the applicant about assumptions *Industry Innovation and Science Australia proposes to make under section 357110 (as that section applies because of section 36270)

the period starting on the day *Industry Innovation and Science Australia tells the applicant and ending on the day on which Industry Innovation and Science Australia receives the applicant’s response about the assumptions

3

tells the applicant about information provided by a third party that *Industry Innovation and Science Australia proposes to take into account under section 357120 (as that section applies because of section 36270)

the period starting on the day *Industry Innovation and Science Australia tells the applicant and ending on the day on which Industry Innovation and Science Australia receives the applicant’s response about the information

 (3) If *Industry Innovation and Science Australia:

 (a) does not make the ruling within 30 days of the notice under subsection (1) being given; and

 (b) has not otherwise declined to make the ruling by the end of that period;

Industry Innovation and Science Australia is taken to have refused to make the ruling at the end of that period.

Note: Decisions refusing to make such a ruling are reviewable under Part 5 of the Venture Capital Act 2002.

36255  When a private ruling ceases to apply

 (1) A *private ruling under this Division may specify the time at which it ceases to apply.

 (2) If a *private ruling under this Division does not do this, it applies until it is withdrawn.

36260  Withdrawing private rulings

 (1) *Industry Innovation and Science Australia must withdraw a *private ruling made under this Division if:

 (a) it is no longer satisfied of the matter about which it was required to be satisfied under subsection 36225(1); or

 (b) the ruling is inconsistent with a decision of a court.

 (2) *Industry Innovation and Science Australia must give notice of the withdrawal to a *general partner of the *limited partnership to which the ruling related.

General provisions

36265  When rulings are binding on the Commissioner and Industry Innovation and Science Australia

 (1) A ruling under this Division binds the Commissioner and *Industry Innovation and Science Australia in relation to an entity (whether or not the entity is aware of the ruling) if:

 (a) the ruling applies to the entity; and

 (b) the entity relies on the ruling by acting (or omitting to act) in accordance with the ruling.

 (2) If the ruling is withdrawn under this Division, it continues to bind the Commissioner and *Industry Innovation and Science Australia in relation to the entity until the end of the income year following the income year in which it is withdrawn, but only to the extent that the ruling affected investments made before the withdrawal took effect.

36270  Application of common rules under Subdivision 357B

  Despite section 35750:

 (a) section 35760 does not apply in relation to a ruling under this Division; and

 (b) sections 35770, 35785 and 35795 apply, in relation to a ruling under this Division, to *Industry Innovation and Science Australia in the same way they apply to the Commissioner; and

 (c) section 357100 applies:

 (i) in relation to a ruling under this Division as if a document referred to in paragraph 357100(b) were required to be signed by a member of Industry Innovation and Science Australia, and not by a person referred to in that paragraph; and

 (ii) in relation to a *private ruling under this Division in the same way it applies to a *public ruling; and

 (d) sections 357105 to 357125 apply in relation to a ruling under this Division as if references in those sections to the Commissioner were references to Industry Innovation and Science Australia.

36275  Application of Divisions 358 and 359

 (1) Division 358 does not apply in relation to a *public ruling under this Division, or in relation to the making of such a ruling.

 (2) Division 359 does not apply in relation to a *private ruling under this Division, or in relation to the making of such a ruling.

Part 510Commissioner’s remedial power

Division 370Commissioner’s remedial power

Table of Subdivisions

 Guide to Division 370

370A Commissioner’s remedial power

Guide to Division 370

3701  What this Division is about

The Commissioner may determine a modification of the operation of a provision of a taxation law. The modification must not be inconsistent with the intended purpose or object of the provision. Furthermore:

 (a) the Commissioner must consider the modification to be reasonable; and

 (b) the Department, or the Finance Department, must advise that any impact of the modification on the Commonwealth budget would be negligible.

Example: After a provision of a taxation law is enacted, it is found that, because of developments in the practices of businesses or the Commissioner, the provision imposes disproportionate compliance costs on taxpayers. The Commissioner might, under this Division, be able to modify the operation of the provision to give timely relief.

An entity must not apply a modification if it would produce a less favourable result for the entity.

Note: The Commissioner must include in the Commissioner’s annual report under section 3B of this Act information about the exercise of his or her powers under this Division.

Subdivision 370ACommissioner’s remedial power

Table of sections

3705 Commissioner’s remedial power

37010 Intended purpose or object

37015 Repeal of determinations

37020 Commencement of determinations

3705  Commissioner’s remedial power

 (1) The Commissioner may, by legislative instrument, determine a modification of the operation of a provision of a *taxation law if:

 (a) the modification is not inconsistent with the intended purpose or object of the provision; and

 (b) the Commissioner considers the modification to be reasonable, having regard to:

 (i) the intended purpose or object of the provision; and

 (ii) whether the cost of complying with the provision is disproportionate to that intended purpose or object; and

 (c) any of the following persons advises the Commissioner that any impact of the modification on the Commonwealth budget would be negligible:

 (i) the Secretary of the Department, or an APS employee in the Department who is authorised by the Secretary for the purposes of this paragraph;

 (ii) the *Finance Secretary, or an APS employee in the *Finance Department who is authorised by the Finance Secretary for the purposes of this paragraph.

 (2) If the Commissioner determines a modification of the operation of a provision of a *taxation law under subsection (1), the provision operates with the modification.

Scope of determination

 (3) A modification applies generally, unless the determination states that the modification only applies:

 (a) to a specified class of entities; or

 (b) in specified circumstances.

 (4) An entity (the first entity) must treat a modification as:

 (a) not applying to the first entity; and

 (b) not applying to any other entity;

if the modification would produce a less favourable result for the first entity.

 (5) If the Commissioner determines a modification of the operation of a provision of a *taxation law, the modification (as applied by subsection (2)) does not affect a right or liability under an order (including any judgment, conviction or sentence) made by a court before the commencement of the determination.

37010  Intended purpose or object

  In ascertaining the intended purpose or object of a provision of a *taxation law for the purposes of paragraph 3705(1)(a) or subparagraph 3705(1)(b)(i):

 (a) consideration must be given to any documents that may be considered under subsection 15AB(2) of the Acts Interpretation Act 1901 (or that subsection as applied by section 13 of the Legislation Act 2003) in relation to the provision; and

Example: An explanatory memorandum, second reading speech or report of a parliamentary committee.

 (b) consideration may be given to any other material (including material not forming part of the provision) that would assist in ascertaining the intended purpose or object of the provision; and

 (c) primacy is not required to be given to the text of the provision.

Note: Ascertaining an intended purpose or object for the purposes of paragraph 3705(1)(a) or subparagraph 3705(1)(b)(i) is not necessarily the same as ascertaining a purpose or object for the purposes of interpreting a provision of an Act.

37015  Repeal of determinations

 (1) The Commissioner may, by legislative instrument, repeal a determination made under section 3705.

 (2) A legislative instrument made under subsection (1) of this section may make an application, saving or transitional provision relating to the repeal.

 (3) Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to the repeal, rescission or revocation of a determination made under section 3705 in this Schedule (but does apply in relation to the amendment or variation of such a determination).

37020  Commencement of determinations

  A determination made under section 3705, or a repeal made under section 37015, must not commence before the first day it is no longer liable to be disallowed, or to be taken to have been disallowed, under section 42 of the Legislation Act 2003.

Part 525Recordkeeping and other obligations relating to taxpayers

Division 382Recordkeeping

Table of Subdivisions

 Guide to Division 382

382A Keeping records of indirect tax transactions

382B Record keeping obligations of deductible gift recipients

Guide to Division 382

3821  What this Division is about

You are required to keep records of indirect tax transactions in accordance with this Division.

Deductible gift recipients are required to keep records in accordance with this Division.

Subdivision 382AKeeping records of indirect tax transactions

Table of sections

3825 Keeping records of indirect tax transactions

3825  Keeping records of indirect tax transactions

Records of transactions

 (1) You must:

 (a) keep records that record and explain all transactions and other acts you engage in that are relevant to a *supply, importation, acquisition, dealing, manufacture or entitlement to which this subsection applies; and

 (b) retain those records for the longest of:

 (i) 5 years after the completion of the transactions or acts to which they relate; and

 (ii) the *period of review for any assessment of an *assessable amount to which those records, transactions or acts relate; and

 (iii) if such an assessment has been amended under Subdivision 155B—the period of 4 years mentioned in paragraph 15570(2)(a) (which provides for a refreshed period of review) that applies to the latest such amendment.

 (2) Subsection (1) applies to:

 (a) a *taxable supply, *taxable importation, *creditable acquisition or *creditable importation made by you; or

 (b) a *supply made by you that is *GSTfree or *input taxed; or

 (c) a *taxable dealing, in relation to *wine, on which you are liable for *wine tax; or

 (d) any other assessable dealing within the meaning of the *Wine Tax Act made by you; or

 (e) your entitlement to a *wine tax credit; or

 (f) a *taxable supply of a luxury car, or a *taxable importation of a luxury car, made by you; or

 (g) your entitlement to a special credit under the A New Tax System (Goods and Services Tax Transition) Act 1999 or the A New Tax System (Wine Equalisation Tax and Luxury Car Tax Transition) Act 1999; or

 (h) if you are entitled to a *fuel tax credit for fuel that you acquire, manufacture or import—the acquisition, manufacture or importation; or

 (i) if you are liable, as a recipient of a taxable supply, to pay the *GST on a taxable supply because of section 15C of the A New Tax System (Goods and Services Tax Transition) Act 1999—the taxable supply.

 (3) If you give the Commissioner a return that takes into account:

 (a) an *input tax credit that is attributable to a *tax period under subsection 2910(4) of the *GST Act; or

 (b) a *fuel tax credit that is attributable to a tax period or *fuel tax return period under subsection 655(4) of the Fuel Tax Act 2006;

you must:

 (c) keep records that record and explain all transactions and other acts you engage in that are relevant to the acquisition or importation in question; and

 (d) retain those records for at least 5 years after the return was given to the Commissioner.

Records of elections, choices, estimates, determinations and calculations

 (4) If you make any election, choice, estimate, determination or calculation under an *indirect tax law, you must:

 (a) keep records containing particulars of:

 (i) the election, choice, estimate, determination or calculation; and

 (ii) in the case of an estimate, determination or calculation—the basis on which, and the method by which, the estimate, determination or calculation was made; and

 (b) retain those records:

 (i) if the indirect tax law specifies circumstances in which the election, choice, estimate, determination or calculation ceases to have effect—for at least 5 years after the election, choice, estimate, determination or calculation ceased to have effect; or

 (ii) in any other case—for at least 5 years after the election, choice, estimate, determination or calculation was made.

 (5) This section requires a record of an *arrangement entered into under section 15350 of the *GST Act to be kept and retained by the party entering into the arrangement as principal. It does not require such a record to be kept or retained by the party entering into the arrangement as intermediary (within the meaning of that section).

 (6) This section requires records of a notice given under subsection 15365(2) of the *GST Act to be kept and retained by both the entity giving the notice and the entity receiving it.

 (7) Without limiting subsection (4), if you choose to apply Division 63 (nonprofit subentities) of the *GST Act, you must:

 (a) keep records that record:

 (i) your choice to apply that Division; and

 (ii) each branch that is treated as a separate entity for the purposes of the *GST law; and

 (iii) each branch that has ceased to be treated as a separate entity for the purposes of the GST law; and

 (b) retain those records for at least 5 years after you revoke the choice.

Requirements of records

 (8) The records must be:

 (a) in English, or readily accessible and easily convertible into English; and

 (b) such as to enable your liabilities and entitlements under an *indirect tax law to be readily ascertained.

Offence

 (9) An entity commits an offence if:

 (a) the entity is required to keep or retain a record under this section; and

 (b) the entity does not keep or retain the record in accordance with this section.

Penalty: 30 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Note 3: Section 28825 imposes an administrative penalty if an entity does not keep or retain records as required by this section.

 (10) Subsection (9) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Defence

 (11) Subsection (9) does not apply if:

 (a) the Commissioner notifies the entity that the entity does not need to retain the record; or

 (b) the entity is a company that has been finally dissolved.

Note: A defendant bears an evidential burden in relation to the matters in subsection (10): see subsection 13.3(3) of the Criminal Code.

 (12) For the purposes of section 28825, this section does not require an entity to retain a record if:

 (a) the Commissioner notifies the entity that the entity does not need to retain the record; or

 (b) the entity is a company that has been finally dissolved.

Note: Section 28825 imposes an administrative penalty if an entity does not keep or retain records as required by this section.

Subdivision 382BRecord keeping obligations of deductible gift recipients

Table of sections

38215 Deductible gift recipients to keep records

38215  Deductible gift recipients to keep records

 (1) A *deductible gift recipient must:

 (a) keep records that record and explain all transactions and other acts the deductible gift recipient engages in that are relevant to the deductible gift recipient’s status as a deductible gift recipient; and

 (b) retain those records for at least 5 years after the completion of the transactions or acts to which they relate.

Note 1: Section 28825 imposes an administrative penalty if an entity does not keep or retain records as required by this section.

Note 2: The Commissioner may request information from certain deductible gift recipients: see sections 35320 and 42640.

Requirements of records

 (2) The records must be:

 (a) in English, or readily accessible and easily convertible into English; and

 (b) such as to show that the *deductible gift recipient uses each of the following only for the principal purpose of the fund, authority or institution:

 (i) gifts of money or property for that purpose;

 (ii) contributions described in item 7 or 8 of the table in section 3015 of the Income Tax Assessment Act 1997 in relation to a *fundraising event held for that purpose;

 (iii) money received by the deductible gift recipient because of such gifts or contributions.

Exception

 (3) For the purposes of section 28825, this section does not require a *deductible gift recipient to retain a record if:

 (a) the Commissioner notifies the deductible gift recipient that the deductible gift recipient does not need to retain the record; or

 (b) the deductible gift recipient is a company that has been finally dissolved.

Division 384Education directions

Guide to Division 384

3845  What this Division is about

If the Commissioner reasonably believes that you have failed to comply with certain obligations arising under taxation laws, the Commissioner may give you a direction requiring a specified course of education to be undertaken.

Table of sections

38410 When a superannuation guarantee education direction may be given

38412 When a taxrecords education direction may be given

38415 Content of, and matters relating to compliance with, education directions

38417 Compliance with superannuation guarantee education directions

38420 Approval of courses of education

38425 Costs of course of education

38430 Variation or revocation on Commissioner’s own initiative

38435 Variation on request

38440 Taxation objection

38410  When a superannuation guarantee education direction may be given

 (1) The Commissioner may give you a written direction (a superannuation guarantee education direction) if the Commissioner reasonably believes that an item of the following table applies to you.

 

Education directions

Item

The item applies to you if…

1

You fail to pay an amount of a taxrelated liability set out in subsection (2).

2

You fail to comply with an obligation to give a statement or information to the Commissioner under the Superannuation Guarantee (Administration) Act 1992.

3

You fail to comply with an obligation to keep records under the Superannuation Guarantee (Administration) Act 1992.

4

You fail to comply with an obligation under this Act that relates to the Superannuation Guarantee (Administration) Act 1992.

Note: For the requirements in the direction, see subsection 38415(1).

 (2) The following table sets out taxrelated liabilities for the purposes of subsection (1).

 

Item

Taxrelated liability

1

Superannuation guarantee charge payable by you under the Superannuation Guarantee (Administration) Act 1992

2

An amount that is due and payable by you of an estimate under Division 268 of an amount of a liability referred to in paragraph 26810(1)(b) (superannuation guarantee charge)

 

38412  When a taxrecords education direction may be given

 (1) The Commissioner may give you a written direction (a taxrecords education direction) if the Commissioner reasonably believes you have failed, at a specified time or for a specified period, to comply with one or more specified recordkeeping obligations under a taxation law that:

 (a) is not set out in paragraph 28825(2)(a) or (b); and

 (b) is not the Superannuation Guarantee (Administration) Act 1992.

Note: For the requirements in the direction, see subsection 38415(2).

 (2) However, the Commissioner must not give you a *taxrecords education direction if the Commissioner reasonably believes:

 (a) you are disengaged from the tax system; or

 (b) you are deliberately avoiding any of those obligations to keep records.

38415  Content of, and matters relating to compliance with, education directions

 (1) A *superannuation guarantee education direction, or a *taxrecords education direction, given to you requires you to:

 (a) ensure that any of the following individuals undertakes a specified approved course of education (see section 38420):

 (i) if you are an individual—you;

 (ii) an individual who makes, or participates in making, decisions that affect the whole, or a substantial part, of your business; and

 (b) provide the Commissioner with evidence that the individual has completed the course.

 (2) The direction must specify the period within which you must comply with the direction (which must be a period that is reasonable in the circumstances).

Note: The period may be affected by the operation of subsection 38435(7).

 (3) You are taken to comply with the direction if, and only if:

 (a) an individual referred to in paragraph (1)(a) undertakes the specified approved course of education during the specified period; and

 (b) before the end of the specified period, you provide the Commissioner with evidence that the individual has completed the course.

Note 1: For a failure to comply with a superannuation guarantee education direction, see section 38417.

Note 2: A failure to comply with a taxrecords education direction will give rise to the administrative penalty set out in subsection 28825(1).

38417  Compliance with superannuation guarantee education directions

 (1) If you are given a *superannuation guarantee education direction, you must comply with it within the period specified in the direction.

Note: Failure to comply with this subsection is an offence against section 8C.

 (2) You are liable to an administrative penalty of 5 penalty units if you contravene subsection (1).

Note: Division 298 contains machinery provisions for administrative penalties.

38420  Approval of courses of education

 (1) The Commissioner may, in writing, approve one or more courses of education for the purposes of giving *education directions.

 (2) A course approved under subsection (1) may be provided by the Commissioner or by another entity.

 (3) An approval under subsection (1) is not a legislative instrument.

38425  Costs of course of education

 (1) The Commissioner or other entity providing an approved course of education may charge fees for the course.

 (2) Any fees charged must not be such as to amount to taxation.

38430  Variation or revocation on Commissioner’s own initiative

  If the Commissioner has given you an *education direction, the Commissioner may, at any time, vary or revoke the education direction by written notice given to you.

38435  Variation on request

 (1) If the Commissioner has given you an *education direction, you may ask the Commissioner to vary the direction.

 (2) The request must be made by written notice given to the Commissioner before the end of the period specified in the direction for the purposes of subsection 38415(2).

 (3) The request must set out the reasons for making the request.

 (4) The Commissioner must decide:

 (a) to vary the direction in accordance with the request; or

 (b) to vary the direction otherwise than in accordance with the request; or

 (c) to refuse to vary the direction.

 (5) If the Commissioner does not make a decision on the request before the end of 28 days after the day the Commissioner received the request, the Commissioner is taken, at the end of that period, to have decided to refuse the request.

 (6) If the Commissioner makes a decision on the request before the end of the period referred to in subsection (5), the Commissioner must:

 (a) notify you of the Commissioner’s decision; and

 (b) if the decision is to vary the direction (whether or not in accordance with the request)—give you a copy of the varied direction; and

 (c) if the decision is to refuse to vary the direction, or to vary the direction otherwise than in accordance with the request—give you written reasons for the decision.

 (7) If you make a request under this section, then, for the purposes of when you must comply with the direction, the period specified in the direction for the purposes of subsection 38415(2) is taken to be extended by 1 day for each day in the period:

 (a) beginning at the start of the day the Commissioner receives the request; and

 (b) ending at the end of the day that the Commissioner notifies you that a decision has been made on the request.

38440  Taxation objection

  If you are dissatisfied with:

 (a) a decision of the Commissioner to give an *education direction, or to vary one otherwise than in accordance with a request under section 38435; or

 (b) a decision of the Commissioner under section 38435 to refuse to vary an education direction;

you may object against the decision in the manner set out in Part IVC.

Division 388Requirements about giving material to the Commissioner

Table of Subdivisions

388A Object of Division

388B General provisions

Subdivision 388AObject of Division

3885  Object of Division

  The object of this Division is to set out requirements to ensure the integrity and efficiency of giving material to the Commissioner.

Subdivision 388BGeneral provisions

Table of sections

38850 Approved forms

38852 Saturdays, Sundays and public holidays

38855 Commissioner may defer time for lodgment

38860 Declaration by entity

38865 Declaration by entity where agent gives document

38870 Declaration by agent

38875 Signing declarations

38880 Electronic notification of BAS amounts

38885 Truncating amounts

38850  Approved forms

 (1) A return, notice, statement, application or other document under a *taxation law is in the approved form if, and only if:

 (a) it is in the form approved in writing by the Commissioner for that kind of return, notice, statement, application or other document; and

 (b) it contains a declaration signed by a person or persons as the form requires (see section 38875); and

 (c) it contains the information that the form requires, and any further information, statement or document as the Commissioner requires, whether in the form or otherwise; and

 (d) for a return, notice, statement, application or document that is required to be given to the Commissioner—it is given in the manner that the Commissioner requires (which may include electronically).

 (1A) Despite subsection (1), a document that satisfies paragraphs (1)(a), (b) and (d) but not paragraph (1)(c) is also in the approved form if it contains the information required by the Commissioner. The Commissioner must specify the requirement in writing.

 (2) The Commissioner may combine in the same *approved form more than one return, notice, statement, application or other document.

 (3) The Commissioner may approve a different *approved form for different entities.

Example: The Commissioner may require high wealth individuals to lodge a different income tax return to that required to be lodged by an individual whose only income is a salary.

38852  Saturdays, Sundays and public holidays

  Where an *approved form is required to be given to the Commissioner or to another entity by, or on, a day (the lodgment day) that is not a *business day, the approved form may be given on the first business day after the lodgment day.

38855  Commissioner may defer time for lodgment

 (1) The Commissioner may defer the time within which an *approved form is required to be given to the Commissioner or to another entity.

 (2) A deferral under subsection (1) does not defer the time for payment of any amount to the Commissioner.

Note: Section 25510 allows the Commissioner to defer the time for payment of an amount of a taxrelated liability.

38860  Declaration by entity

  If you give a return, notice, statement, application or other document to the Commissioner in the *approved form, you must make a declaration in the approved form that any information in the document is true and correct.

38865  Declaration by entity where agent gives document

 (1) If a return, notice, statement, application or other document of yours is to be given to the Commissioner in the *approved form by an agent on your behalf, you must make a declaration in writing:

 (a) stating that you have authorised the agent to give the document to the Commissioner; and

 (b) declaring that any information you provided to the agent for the preparation of the document is true and correct.

 (2) You must give the declaration to the agent.

 (3) You must retain the declaration or a copy of it for:

 (a) 5 years after it is made; or

 (b) a shorter period determined by the Commissioner in writing for you; or

 (c) a shorter period determined by the Commissioner by legislative instrument for a class of entities that includes you.

 (3A) A determination under paragraph (3)(c) may specify different periods for different classes of entities.

 (4) You must produce the declaration or copy if requested to do so within that period by the Commissioner.

 (5) The agent must not give the document to the Commissioner before you make the declaration.

 (6) You must sign the declaration.

38870  Declaration by agent

  If an agent gives a return, notice, statement, application or other document to the Commissioner in the *approved form on behalf of another entity, the agent must, if the document so requires, make a declaration in the approved form stating that:

 (a) the document has been prepared in accordance with the information supplied by the other entity; and

 (b) the agent has received a declaration from the other entity stating that the information provided to the agent is true and correct; and

 (c) the agent is authorised by the other entity to give the document to the Commissioner.

38875  Signing declarations

 (1) You must sign a declaration in a return, notice, statement, application or other document you give to the Commissioner in paper form.

 (2) If your agent gives a return, notice, statement, application or other document to the Commissioner on your behalf in paper form, the document must contain:

 (a) if the document so requires—a declaration made by you with your signature; and

 (b) if the document so requires—a declaration made by your agent with the agent’s signature.

 (3) Any return, notice, statement, application or other document of yours that is *lodged electronically:

 (a) if you give it to the Commissioner—must contain your declaration (see section 38860) with your *electronic signature; or

 (b) if your agent gives it to the Commissioner—must contain the agent’s declaration (see section 38870) with the agent’s electronic signature.

 (4) Any return, notice, statement, application or other document of yours that is given by telephone:

 (a) if you give it—must contain your *telephone signature; or

 (b) if your agent gives it—must contain your agent’s telephone signature.

38880  Electronic notification of BAS amounts

  An entity that, under section 3125 of the *GST Act, chooses or is required to *lodge a *GST return electronically must also electronically notify the Commissioner of all other *BAS amounts whose notification is required on the same day as the GST return (ignoring any extension allowed by the Commissioner under section 3110 of that Act or a deferral under section 38855).

38885  Truncating amounts

  If an *approved form that you are required to give the Commissioner specifies that amounts set out in the form are to be expressed in whole dollars, you truncate the amounts to the nearest whole dollar.

Example: Stefan Pty Ltd calculates that its PAYG instalment for a quarter is $8,496.73. Because the approved form requires amounts to be truncated, the amount would be reported in its BAS as $8,496.

Division 389Reporting by employers

Guide to Division 389

3891  What this Division is about

This Division establishes the “Single Touch Payroll” reporting framework.

Employers must (unless they are exempt) notify the Commissioner of certain amounts that relate to payments in respect of their employees.

Employers may notify the Commissioner of certain other amounts on a voluntary basis.

In many cases, this Division has the effect of bringing forward the due date for notification or reporting under other provisions. Notifying under this Division may satisfy an employer’s obligations to notify or report under the other provisions.

Table of sections

3895 Required reporting by employers

38910 Exemptions

38915 Voluntary reporting by employers in relation to taxation laws

38920 Effect on reporting requirements under Subdivision 16C

38925 Grace periods for correcting false or misleading notifications

38930 Voluntary reporting by employers in relation to child support laws

3895  Required reporting by employers

 (1) An entity must notify the Commissioner of an amount of a kind referred to in column 1 of an item in the following table on or before the day referred to in column 2 of that item, if the amount arises as a result of conduct of the entity (such as payment of an amount or provision of a benefit).

 

Amounts to be notified to the Commissioner

Item

Column 1

The following must be notified …

Column 2

… on or before this day

1

The following amounts:

(a) an amount the entity must withhold under Subdivision 12B (other than section 1255 or 1260), paragraph 1285(b), section 1290, paragraph 12110(1)(ca) or section 12319A;

(b) the *withholding payment from which the amount referred to in paragraph (a) is required to be withheld

the day by which the amount is required to be withheld (regardless of whether it is withheld) (see section 165).

2

An amount that consists of either or both of the following:

(a) an amount (other than an amount covered by item 1) paid, on a particular day, by the entity that constitutes the ordinary time earnings (within the meaning of the Superannuation Guarantee (Administration) Act 1992) of an individual who is the entity’s employee (within the meaning of that Act but disregarding subsection 12(3) of that Act);

(b) a sacrificed ordinary time earnings amount (within the meaning of that Act) of such an employee of the entity, in respect of the entity, that would be paid as ordinary time earnings on a particular day if it was not sacrificed

the day on which the amount is paid, or would be paid, as mentioned in column 1.

2A

An amount that consists of either or both of the following:

(a) an amount (other than an amount covered by item 1) paid, on a particular day, by the entity that constitutes the salary or wages (within the meaning of the Superannuation Guarantee (Administration) Act 1992) of an individual who is the entity’s employee (within the meaning of that Act but disregarding subsection 12(3) of that Act);

(b) a sacrificed salary or wages amount (within the meaning of that Act) of such an employee of the entity, in respect of the entity, that would be paid as salary or wages on a particular day if it was not sacrificed

the day on which the amount is paid, or would be paid, as mentioned in column 1.

Note: Section 28675 provides an administrative penalty for breach of this section.

 (2) The notification must be in the *approved form. However, the approved form must not require information about an amount unless it is:

 (a) the amount to be notified under subsection (1); or

 (b) an amount of a kind determined by the Commissioner under subsection (3).

 (3) The Commissioner may, by legislative instrument, determine kinds of amounts for the purposes of paragraph (2)(b).

 (4) In applying item 1 of the table in subsection (1), a requirement to withhold a nil amount is to be treated as a requirement to withhold an amount.

 (5) This section does not apply to an entity to the extent (if any) that the entity is covered by an exemption under section 38910 for the income year in which the entity’s conduct occurs.

38910  Exemptions

Exempting classes of entities

 (1) The Commissioner may, by legislative instrument, exempt a class of entities from section 3895 for one or more income years.

 (2) The exemption may be limited to the extent specified in the instrument.

Exempting particular entities

 (3) The Commissioner may, on application by an entity (an exemption application) or on the Commissioner’s own initiative, exempt the entity from section 3895 for one or more income years.

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