• Entrusted persons and their obligations

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    Who is an entrusted person?

    A person who receives protected information or protected documents in the course of official employment is referred to as an ‘entrusted person’.

    The Registrar of the Australian Business Register (ABR) is an entrusted person. When the Registrar discloses protected information to eligible government agencies, the heads of those agencies also become entrusted persons.

    Section 30 of the A New Tax System (Australian Business Number) Act 1999 restricts what an entrusted person can do with protected information and documents that are obtained in the course of official employment.

    To understand what this means you need to understand what protected information and official employment are.

    Protected information and protected documents

    ‘Protected information’ is information that meets all the following conditions:

    • It relates to the affairs of a person other than the entrusted person;
    • It was obtained by the entrusted person, or by another person, in the course of official employment; and
    • It was disclosed or obtained under, or in relation to, the ABN Act.

    ‘Protected document’ means any document made or given under, or for the purposes of, the ABN Act.

    Official employment

    ‘Official employment’ means:

    • appointment or employment by the Commonwealth, or the performance of services for the Commonwealth; or
    • the exercise of powers or performance of functions under a delegation by the Registrar; or
    • appointment or employment by a State or Territory, or the performance of services for a State or Territory; or
    • appointment or employment by a local governing body, or the performance of services for a local governing body.

    Offence by an entrusted person

    An entrusted person must not make a record of protected information and must not disclose it to anyone else if the recording or disclosure is not permissible.

    The penalty for breaching this provision is imprisonment for two years.

    Permissible recording and disclosure where the entrusted person is the Registrar

    It is permissible for the Registrar to record or disclose protected information in the following circumstances:

    • for the purposes of the ABN Act;
    • in the course of the performance of the duties of the Registrar’s official employment;
    • the disclosure is to:
      • certain prescribed officeholders; or
      • the AAT in connection with proceedings under a taxation law; or
      • a prescribed body for the prescribed purposes
       

    (Regulation 9 of the A New Tax System (Australian Business Number) Regulations 1999 prescribes certain bodies and purposes)

    • the disclosure is of information relating to an individual who is, or who has been, registered as an entity’s representative and is for the purposes of facilitating the entity’s electronic dealings with government entities or for maintaining details in the Register.

    Permissible recording and disclosure where the entrusted person is someone other than the Registrar

    It is only permissible for an entrusted person who is not the Registrar to record or disclose protected information in the course of the performance of the duties of the entrusted person’s official employment.

    Permissible disclosure by a person authorised by the Registrar

    It is permissible for a person authorised by the Registrar to disclose protected information and the disclosure is to:

    • certain prescribed officeholders; or
    • another person for the purpose of that other person carrying out functions under an Act administered by the Commissioner of Taxation; or
    • a prescribed body for the prescribed purposes.

    (Regulation 9 of the A New Tax System (Australian Business Number) Regulations 1999 prescribes certain bodies and purposes).

    The authorised person must be an entrusted person.

    Restrictions on disclosure

    Disclosure to Ministers and other elected members

    Protected information cannot be disclosed to a Commonwealth, state or territory minister or an elected member of a body established under a law of a state or territory.

    Disclosure to a court

    An entrusted person is not required to produce a protected document or disclose protected information to a court except where it is necessary for the purpose of giving effect to a taxation law.

    • Last modified: 12 Aug 2016QC 1103