Issued: 9 December 2019
Last modified: 1 July 2024
- Qualifying for whistleblower protection
- Eligible whistleblower
- Who you can disclose to
- How to make a disclosure to us
- What happens after you make a disclosure
- Whistleblower protections
- Identity protection
- Civil, criminal and administrative liability protection
- Examples
- Tax agent misconduct
- Tax agent company promoting tax avoidance schemes
- BAS agent providing services
- Tax agent as an eligible recipient
- Further information
New whistleblower laws commenced on 1 July 2024. These laws extend whistleblower protections to individuals who ‘blow the whistle’ about a related entity to us, where they believe the information may assist us in performing our functions or duties under the Tax Agent Services Act 2009 (TASA).
Whistleblowers play a critical role in the early detection and regulation of tax practitioner misbehaviour. This is why we encourage and welcome anyone to provide us with information about malicious practices by tax practitioners or scheme promoters that would be harmful to the public or undermine the Australian tax system.
Previously, there was no protection for individuals if they disclosed information to us. They were also exposed to significant personal and financial risk. The latest reforms will now protect eligible whistleblowers when they disclose information about an entity to us (or to the Commissioner of Taxation).
Qualifying for whistleblower protection
To qualify for whistleblower protection, you must meet certain conditions. You must:
- be an eligible whistleblower
- make the disclosure of information to us (or to the Commissioner of Taxation)
- consider that the information you provide may assist us to perform our functions or duties under the TASA in relation to the entity or an associate of the entity.
Prior to making a disclosure, you may wish to consider seeking independent legal advice to confirm whether you are an eligible whistleblower and can qualify for whistleblower protection.
Eligible whistleblower
To be eligible for whistleblower protection you must be an individual who is, or has been, in a relationship with the entity you are disclosing information about. This includes:
an officer (including a director) of the entity
an employee of the entity
an individual who supplies services or goods to the entity (such as a registered tax agent or BAS agent)
an employee of a person that supplies services or goods to the entity
an associate* of the entity
a spouse, child or dependent of an individual referred to above, or a dependent of an individual's spouse
an individual prescribed by the Taxation Administration Regulations 2017 in relation to the entity.
*An 'associate' can include a relative or partner of an entity, or a trustee of a trust or a company in certain circumstances. For further information, see section 318 of the Income Tax Assessment Act 1936.
Who you can disclose to
If you are an eligible whistleblower, you can make a disclosure about a tax practitioner’s misbehaviour to:
us or the Commissioner of Taxation if you consider that the information may assist us in performing our functions or duties under the TASA in relation to the entity or an associate of the entity
the Commissioner of Taxation if you consider that the information may assist the Commissioner to perform their functions or duties under a taxation law in relation to the entity or an associate of the entity
an eligible recipient in relation to the entity (such as a registered tax agent or BAS agent) if you:
- have reasonable grounds to suspect that the information indicates misconduct, or an improper state of affairs or circumstances, in relation to the tax affairs of the entity or an associate of the entity, and
- consider that the information may assist the eligible recipient to perform their functions or duties in relation to the tax affairs of the entity or an associate of the entity.
If you are not an eligible whistleblower, you can still qualify for protection as an individual if you make a disclosure to:
- a legal practitioner (for the purpose of obtaining legal advice or legal representation in relation to the operation of the whistleblower laws)
- a medical practitioner or psychologist (for the purpose of obtaining medical or psychiatric care, treatment or counselling, including psychological counselling)
- an entity prescribed by the regulations.
How to make a disclosure to us
You can only qualify for whistleblower protection if your disclosure is made to us on or after 1 July 2024. Disclosures made to us before this date will not qualify for whistleblower protection.
To make a disclose to us, fill in our complaints form. You should provide as much detail as possible, including any relevant documentation to support your complaint.
What happens after you make a disclosure
Once you have lodged your complaint, you will receive an acknowledgement email with a reference number (if you have provided your email address in the complaints form).
All complaints are reviewed and risk assessed but not all complaints will lead to a formal investigation. However, the information you provide is valuable intelligence and data to shape our policies, services and compliance.
If we determine that your complaint is a complaint we can act on, we will undertake further enquiries. This may include contacting you for further information if you have provided your contact details in the complaints form.
Whistleblower protections
Identity protection
If you are an eligible whistleblower, it is illegal for us to disclose your identity, or information that is likely to lead to your identification, unless the disclosure is:
- made to an authorised body (such as the Commissioner of Taxation)
- made with your consent, or
- not of your identity and is reasonably necessary for the purposes of investigating misconduct, or an improper state of affairs or circumstances, to which your whistleblower disclosure relates and we have taken all reasonable steps to reduce the risk that your identity will be identified as a result of the disclosure.
Civil, criminal and administrative liability protection
You will not be subject to civil, criminal or administrative liability (including disciplinary action) for making a disclosure to us if you are an eligible whistleblower. For example, you cannot be sued for a breach of a confidentiality clause in a contract, or have your contract terminated on the basis that the disclosure you make is considered to be a breach of contract.
If a disclosure is made to us or the Commissioner of Taxation, the information you provide is not admissible in evidence against you in criminal proceedings and you cannot be penalised unless the information you provide is false. However, this does not prevent you from being subject to any civil, criminal or administrative liability for your conduct that is revealed by the disclosure you make.
You will also receive immunity from disciplinary action and cannot be sanctioned if you disclose information about your client. For example, there will not be a breach of Code item 6 which states ‘unless you have a legal duty to do so, you must not disclose any information relating to a client’s affairs to a third party without your client’s permission’. For further information, refer to Confidentiality of client information.
Examples
Tax agent misconduct
Tom is a tax agent and partner in a tax and accountancy firm. He becomes aware that another partner tax agent, Kate, has been disclosing significant details relating to her client’s affairs to a third party without the client’s permission (which is a breach of client confidentiality under Code item 6).
Tom discloses his observations about Kate’s misbehaviour to us. Tom is eligible for whistleblower protection because:
- he is an eligible whistleblower (being an associate of Kate)
- the disclosure to us will assist us to perform our functions or duties under the TASA in relation to Kate.
In addition, Tom should consider his breach reporting obligations under the TASA and ensure that he complies with these obligations when making his disclosure to us about another tax agent
Tax agent company promoting tax avoidance schemes
Sandra is a tax agent and an employee of A1 Tax Management. John is Sandra’s manager and a senior tax agent in the practice.
Sandra observes that John is promoting special tax structures to clients which do not appear to meet the tax laws.
Sandra discloses her observations about the tax structures being promoted by A1 Tax Management to the Australian Taxation Office (ATO). She also discloses her observations about A1 Tax Management's unethical conduct to us, since the company is a registered tax agent and John is a supervisory tax agent for the company. When making this disclosure, Sandra also considers her breach reporting obligations under the TASA to ensure she complies with these obligations.
Sandra is eligible for whistleblower protection because:
- she is an eligible whistleblower (being an employee of A1 Tax Management)
- the disclosure will assist the Commissioner of Taxation in performing its functions or duties under the taxation laws in relation to A1 Tax Management
- the disclosure to us will assist us to perform our functions or duties under the TASA in relation to A1 Tax Management.
BAS agent providing services
Simon is a registered BAS agent and provides services to a new client, ABC Constructions. While reviewing his client’s tax affairs, Simon notices a number of suspicious transactions and believes that ABC Constructions may be involved in tax misconduct.
Simon makes a disclosure about ABC Constructions to the ATO.
Simon is eligible for whistleblower protection because he:
- is an eligible whistleblower (having been engaged by ABC Constructions to provide a service), and
- believes that the disclosure may assist the Commissioner of Taxation in performing their functions or duties under a taxation law in relation to ABC Constructions.
Tax agent as an eligible recipient
Mary is an employee at a car wash business. She has found that some of her colleagues have been advised by the business to request cash payment so the business can understate sales and avoid income tax.
Mary makes a disclosure about the car wash business to Noah, the registered tax agent for the business, as she believes this will assist Noah in performing his functions or duties in relation to the tax affairs of the business.
Mary is eligible for whistleblower protection because:
- she is an eligible whistleblower (being an employee of the car wash business)
- Noah is an eligible recipient (being a registered tax agent for the business)
- she has reasonable grounds to suspect that the information indicates misconduct in relation to the tax affairs of the business
- she considers that the information may assist Noah to perform his functions or duties in relation to the tax affairs of the business.
Noah cannot disclose Mary’s identity to anyone, except the Commissioner of Taxation or another authorised person or body.