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Contempt proceedings threatened by the Senate against the Tax Commissioner could see him jailed and fined for standing in the way of a JobKeeper transparency push.
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Tax Commissioner threatened with contempt as JobKeeper stoush escalates
06 September 2021
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Independent senator Rex Patrick urged the Senate to commence contempt proceedings against Commissioner of Taxation, Chris Jordan, last week for failing to comply with a final Senate order that required him to publish details related to large companies that received JobKeeper.
Mr Jordan claimed public interest immunity against a Senate order in mid-August that would have required the ATO to publish a list of businesses with a turnover of more than $10 million who were recipients of the JobKeeper wage subsidy, along with how much these businesses received and how much they had moved to repay.
He argued that revealing such details would undermine public confidence in the ATO’s ability to keep tax information confidential.
“Requiring disclosure of protected taxpayer information to the Parliament will harm the public interest by undermining public confidence in the commissioner’s ability to keep taxation information confidential and the administration of the tax system beyond the administration of the Coronavirus Economic Response Package more generally,” Mr Jordan wrote in his reply to the Senate.
“That harm outweighs any public interest in disclosing the information in a public forum, including through parliamentary processes.”
In a letter to Senate president Scott Ryan, Mr Patrick said the Tax Commissioner’s refusal to comply with the Senate order was an act of contempt that could set a dangerous precedent if not overruled.
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“A final order by the Senate to the Tax Commissioner must be complied with and it would set an unacceptable precedent were the Commissioner’s non-compliance with the order be allowed to pass,” Senator Patrick said.
“Failure to comply with a final lawful order of the Senate is a contempt.”
After Mr Jordan refused to disclose the list ordered by the Senate, federal Treasurer Josh Frydenberg moved to intervene two weeks later, again citing public interest immunity.
Mr Frydenberg said businesses and taxpayers provide the government with private tax details on the basis that the government won’t publicise it. He said businesses would expect his government to take the necessary steps to keep it confidential.
“Crucially, the confidential information that is the subject of this order has been collected by the Australian government under strict tax secrecy laws which restrict both the use and sharing of that confidential information,” Mr Frydenberg said.
“Upholding these laws is therefore vital to the continued confidence of Australians in government and the assurances it provides about the protection of their confidential information.
“Almost every aspect of government would be significantly and adversely impacted were Australians to lose confidence in the protection of the confidential information they provide to the Australian government.”
Mr Frydenberg also claimed that disclosing details related to those who received JobKeeper payments could also do damage to the commercial interests of the entities that received it.
In his letter to the Senate president, Mr Patrick said there is no scope for either a minister or the Commissioner to deny a Senate order, and requested the matter be considered and debated in the Senate.
“The final order of the Senate is a lawful order directed at an independent statutory officer, and the Commissioner must comply,” Mr Patrick wrote. “There is no scope for a minister to counter a Senate order.
“Accordingly, I request that you give precedence to a notice of motion to refer this matter to the Committee of Privileges,” Mr Patrick wrote. “I would of course be happy to provide the Committee of Privileges with any supporting information the committee requires.”
Mr Patrick’s move to commence contempt proceedings comes off the back of a groundswell of calls for more transparency around the recipients of substantial government support, and mimics a similar system in New Zealand, where company details are made publicly available.
In New Zealand, where the government spent $12.35 billion on its JobKeeper equivalent, as much as $673 million – or 5.45 per cent – has been voluntarily repaid. Comparatively, in Australia, where only $225 million of the $89.3 billion shelled out for JobKeeper has been repaid, the rate is far lower at just 0.25 of a percentage point.
“The New Zealand government publishes the names of employers who received a wage subsidy payment and how much they were paid,” Senator Patrick said on Thursday.
“If the employer fully repaid the money, their name was removed from the published list. Transparency had an effect and is something we should do here.
“Those employers that used the money in a manner consistent with the intent of the JobKeeper program need not be concerned in any way by the proposed disclosure, only those that rorted the system.”
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