Public Ruling GEN008.7 Subpoenas, warrants and notices to produce directed to the Commissioner

A public ruling, when issued, is the published view of the Commissioner of State Revenue (the Commissioner) on the particular topic to which it relates. It therefore replaces and overrides any existing private rulings, memoranda, manuals and advice provided by the Commissioner in respect of the issue(s) it addresses.

Where a change in legislation or case law (the law) affects the content of a public ruling, the change in the law overrides the public ruling—that is, the Commissioner will determine the tax liability or eligibility for a concession, grant or exemption, as the case may be, in accordance with the law.

What this ruling is about

  1. This public ruling explains the Commissioner’s obligations under the revenue laws in relation to subpoenas, warrants and other legal process and notices served on the Commissioner to gain access to information obtained by the Commissioner and revenue officers in the course of administering revenue laws.
  2. In this public ruling, a reference to ‘revenue laws’ includes the following:
    1. Taxation Administration Act (TAA)
    2. Duties Act 2001
    3. Payroll Tax Act 1971
    4. Land Tax Act 2010
    5. Betting Tax Act 2018
    6. the royalty laws, being the royalty provisions of the Mineral Resources Act 1989 (Mineral Resources Act) and the Petroleum and Gas (Production and Safety) Act 2004 (Petroleum and Gas Act)1
    7. First Home Owner Grant and Other Home Owner Grants Act 2000 (Grants Act)
    8. Building Boost Grant Act 2011 (BBGA).

Ruling and explanation

  1. The disclosure of any information or documentation obtained by the Commissioner or revenue officers in connection with the administration or enforcement of the revenue laws is prohibited, except where expressly permitted by the secrecy provisions of the revenue laws.2
  2. Unless the revenue laws expressly permit the disclosure of this information by the Commissioner or a revenue officer, the disclosure is an offence. Circumstances in which disclosure of information is expressly permitted by the revenue laws include where:
    1. it is made in connection with the administration or enforcement of a relevant revenue law3
    2. the person to whose affairs the information or document relates has consented to the disclosure4
    3. it is made in connection with the administration or enforcement of a recognised law under the TAA or another law about public revenue5 or a resources law6
    4. the disclosure is made under the Grants Act in connection with the administration or enforcement of:
      1. the regional home building boost grant (RHBBG) direction7
      2. the home builder direction8
      3. another jurisdiction’s first home owner grant legislation9
      4. the First Home Saver Accounts Act 2008 (Cwlth)10
    5. to the extent required to comply with the agreement between the Commonwealth and the State called ‘National Partnership on HomeBuilder’11
    6. the disclosure is expressly permitted or required by another Act12
    7. it is made for the purpose of proceedings arising out of the relevant revenue law13
    8. the disclosure is made to a member of the Queensland Police Service or the Australian Federal Police for an investigation or proceeding about a particular offence or suspected offence, where the Commissioner becomes aware of the offence or suspected offence from information obtained or held by the Commissioner in the course of administering the revenue laws,
      the RHBBG direction or the home builder direction14
    9. the disclosure is to another department as specified in the relevant revenue laws; for example:
      1. to the Treasurer or an officer of the department for developing or monitoring public revenue policies and administering the Financial Accountability Act 2009, s.2115
      2. the chief executive of a department or a local government for keeping a record relating to the ownership, sale or value of interests of property16
    10. the disclosure is to the registrar of the State Penalties Enforcement Registry, appointed under the State Penalties Enforcement Act 1999, for the administration or enforcement of that Act17
    11. the Commissioner is satisfied that it is appropriate in the circumstances, the Commissioner may disclose other confidential information to any person or for any purpose.18

Disclosure of information in legal proceedings

  1. The revenue laws contain specific provisions regarding the disclosure of information in court or Queensland Civil and Administrative Tribunal (QCAT) proceedings.19
  2. These provisions mean that a revenue officer is not required to produce or communicate in court any information acquired by the revenue officer in the performance of his or her duties unless the disclosure is specifically permitted under the particular revenue laws. This exception is limited to cases where the disclosure is required in a proceeding for the administration or enforcement of a revenue law.20
  3. Where a revenue officer is requested to disclose certain information in the course of court or QCAT proceedings or examination by a liquidator, the revenue officer should inform the court or QCAT that they are unable to disclose the information because disclosure would breach the secrecy provisions of the relevant revenue law. The revenue officer should then state that they are open to the direction of the court or QCAT on the matter.

Subpoenas

  1. Legal process such as subpoenas and writs of non-party discovery seeking access to information or documents obtained by the Commissioner do not override the secrecy provisions.21 The Commissioner is therefore not required to comply with subpoenas requesting access to information or documents obtained under the revenue laws unless the case falls within the limited circumstances in which disclosure by the Commissioner is permitted.
  2. Where a subpoena or writ is served on the office, it should be referred to the relevant Director or Deputy Commissioner. If the disclosure sought by the subpoena or writ is prohibited by the revenue laws, the office will attempt to obtain agreement from the issuing party that disclosure is excused by the secrecy provisions. However, if attendance in Court of the officer served is still required by the issuing party, the officer will attend Court and bring the relevant secrecy provision under the revenue laws to the attention of the Court. The Court will then decide if the office is excused from complying with the process.

Warrants

  1. A search warrant issued under the Crimes Act 1914 (Cwlth) binds the Crown in right of a state and authorises the search of state government premises and the seizure of documents connected with the investigation of Commonwealth offences.22 This obligation overrides the secrecy provisions of the revenue laws.
  2. When a warrant is served, it is referred to the Commissioner. Legal advice should be obtained on the validity and scope of the warrant before disclosure.
  3. The Commissioner must comply with the terms of a properly executed search warrant issued under s.3E of the Crimes Act 1914 (Cwlth) by allowing access to any existing document or record that is within the scope of the warrant.

Notices under the Crime and Corruption Act 2001

  1. In respect of a ‘notice to produce’ issued under the Crime and Corruption Act 200123 (Crime and Corruption Act), the Commissioner must comply with the notice to produce, unless the Commissioner has a reasonable excuse24 or the information or document is subject to privilege.25
  2. ‘Privilege’ is defined in the Crime and Corruption Act to include a ground of confidentiality.26 A ‘ground of confidentiality’ means a ground recognised at law that giving an answer or disclosing communication or document would be a breach of an oath taken or statutory or commercial obligation or restriction to maintain secrecy.27
  3. Despite the availability of claim of privilege, the Commissioner does not, by complying with a notice to produce, contravene the secrecy provisions contained in the relevant revenue laws. The Commissioner can disclose the information if it is within the Commissioner’s possession and does not have to rely on the exceptions to secrecy under the revenue laws.28
  4. However, ss.74(6) and 74A(5) of the Crime and Corruption Act do not compel disclosure, and a claim of privilege can be made if the Commissioner chooses.
  5. Any requests for information from the Crime and Corruption Commission should be referred to the Commissioner for consideration. Legal advice should be obtained on the validity and scope of the notice.

Referral of served documents

  1. Documents served must be delivered immediately to the relevant Director or, in their absence, Deputy Commissioner.

Date of effect

  1. This public ruling takes effect from 1 October 2020.

Mark Jackson
Commissioner of State Revenue
Date of issue: 1 October 2020

References

Public Ruling Issued  Dates of effect
From To
GEN008.7 1 October 2020 1 October 2020 Current
GEN008.6 27 September 2018 1 October 2018 30 September 2020
GEN008.5 30 June 2010 30 June 2010 30 September 2018
GEN008.4 15 April 2010 15 April 2010 29 June 2010
GEN008.3 1 December 2009 1 December 2009 14 April 2010
GEN008.2 3 July 2009 30 June 2009 30 November 2009
GEN008.1 24 February 2009 24 February 2009 29 June 2009
Supersedes Practice Direction GN 6.6 22 January 2009 22 January 2009 23 February 2009

Footnotes

  1. ‘Royalty provisions’ means chapter 11 of the Mineral Resources Act, chapter 6 of the Petroleum and Gas Act and any other provision of those Acts to the extent they are administered by the Minister with Ministerial responsibility for the TAA.
  2. Section 111 TAA, s.68 Grants Act and s.104 BBGA
  3. Section 111(2)(c) TAA, s.68(3)(c) Grants Act and s.104(3)(c) BBGA
  4. Section 111(2)(a) TAA, s.68(3)(a) Grants Act and s.104(3)(a) BBGA
  5. Section 111(2)(d)(i) TAA, s.68(3)(c)(ii) Grants Act and s.104(3)(c) BBGA
  6. Section 111(2)(d)(ii) TAA
  7. Section 68(3)(c)(i) of the Grants Act. The definition is contained in the Schedule of the Grants Act.
  8. Section 68(3)(c)(i) of the Grants Act. The definition is contained in the Schedule of the Grants Act.
  9. Section 68(3)(c)(i) Grants Act
  10. Section 68(3)(c)(iii) Grants Act
  11. Section 68(3)(e) Grants Act
  12. Section 111(2)(b) TAA, s.68(3)(b) Grants Act and s.104(3)(b) BBGA
  13. Section 111(2)(e) TAA, s.68(3)(d) Grants Act and s.104(3)(d) BBGA
  14. Section 111(3) TAA, s.68(4) Grants Act and s.104(5) BBGA
  15. Section 111(2)(f) TAA
  16. Section 111(2)(g) TAA
  17. Section 111(2)(h) TAA
  18. Section 111(4) TAA
  19. Section 113 TAA, s.68(5) Grants Act and s.104(6) BBGA
  20. Section 113(2) TAA, s.68(5) Grants Act and s.104(6) BBGA
  21. Section 113 TAA, s.68(5) Grants Act and s.104(6) BBGA
  22. Jacobsen and Dibb vs Rogers (1994–1995) 182 CLR 572
  23. The Crime and Misconduct and Other Legislation Amendment Act 2014, among other things, changed the name of the Crime and Misconduct Act 2001 to Crime and Corruption Act 2001, effective 1 July 2014.
  24. Sections 74(5) and 74A(4) of the Crime and Corruption Act
  25. Sections 74(7) and 74A(6) of the Crime and Corruption Act
  26. Schedule 2 of the Crime and Corruption Act
  27. Schedule 2 of the Crime and Corruption Act
  28. Sections 74(6), 74A(5) and 343 of the Crime and Corruption Act