Page 2316 - Week 07 - Thursday, 17 August 2006
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information a bit problematic. Unless the matter concerned the administration of a tax act, how would the DPP come into possession of the information? There is no mechanism that ensures that the prosecution or the defence or the court will ever see information held by the tax office that is relevant to the case before them.
The Assembly has heard me say many times that the thinking that goes into the bare bones compatibility statement should be made available for public scrutiny. Even if it is only in the form of back of the envelope dot points, some justification for the commissioner’s opinion as to human rights compatibility should be made publicly available. This bill is another instance where the reasoning on which a human rights compatibility statement is based should have been released for public edification and scrutiny. A bland assertion of compatibility without any detailed justification shows contempt for the public and does nothing to nurture greater public understanding and acceptance of our human rights framework. Robust debate on human rights is essential. Indeed, without it our Human Rights Act is somewhat hollow, providing ticks for the government without any self-examination.
Section 99 currently gives a tax officer the power to resist disclosure of a document unless the court considers that it is necessary to do so for the purposes of the administration or execution of a tax law. The explanatory statement makes no mention of the fact that the amendment proposes to remove this decision-making power from the court and give it to the Commissioner of Taxation.
This amendment changes the legal status of taxation documents by making them non-compellable. This takes power away from one branch of governance, the judiciary, and gives it to another branch, the executive. This is not a minor or an inconsequential thing and it should have been discussed in the explanatory statement. I do not know whether it was intentional in this case or if it is merely an administrative oversight, but again we see this government giving itself the power to withhold information that could be politically damaging.
This amendment potentially covers information concerning the financial affairs of the government and attempts to remove that information from public or court scrutiny. It expands the definition of confidential documents to include documents created by the tax office itself for its own purposes and it makes the taxation commissioner the final arbiter of whether or not to release taxation information by taking his function away from the court. This amendment expands the existing category of confidential information to cover documents that contain no personal or confidential information. These are documents that could never breach confidentially or trigger the provisions of the Privacy Act. It is misleading to assert that this amendment merely clarifies the position regarding the release of confidential information.
It may well be that this amendment will be held to be inconsistent with the broadly defined definitions of compellable evidence found in the commonwealth Evidence Act. The scrutiny report comments on this possibility and the argument made in that report is not satisfactorily answered by the Treasurer’s response. As well as urging the government to release its reasoning behind its human rights compatibility statement, I also urge it to release as many of its legal advices as is practicable. It would be useful if the government made available its own legal reasoning on this matter, as there is some ambiguity about the interpretation of section 8 of the commonwealth Evidence Act.
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