New whistleblower laws commenced on 1 July 2019 to legally protect people who ‘blow the whistle’ about an entity that is not complying with the tax laws.
Whistleblowers play a critical role in the early detection and prosecution of corporate or tax misconduct. They can open themselves up to significant personal and financial risk and no protection was previously available for them. The reforms will protect whistleblowers when they disclose information about an entity in relation to tax avoidance behaviour and other tax issues to an eligible recipient prescribed under the legislation.
To be eligible for whistleblower protection you must be, or have been, in a relationship with the entity you are reporting about. This can include being:
- an employee or former employee
- a dependant or spouse
- individuals who supply services or goods to the entity (such as a tax or BAS agent or tax (financial) adviser).
To qualify for protection as a whistleblower the disclosure must be made to an eligible recipient.
Eligible recipients may include:
- the Commissioner of Taxation (if it assists in the performance of functions and duties under a taxation law)
- the Australian Securities & Investments Commission (ASIC)
- the Australian Prudential Regulation Authority (APRA), or
- any other person that is in a position to take appropriate action (usually internal action).
The TPB is not an eligible recipient.
If you are an eligible whistleblower, it is illegal for someone to disclose your identity, or information that is likely to lead to your identification.
Whistleblowers are not subject to civil, criminal or administrative liability for making a disclosure and an entity cannot be sued for a breach of a confidentiality clause in a contract.
Immunity from disciplinary action for a tax practitioner means that they cannot be sanctioned if they disclose information about their 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’.
Tax agent promoting tax avoidance schemes
Sandra is a tax agent and an employee of A1 Tax Management. John is Sandra’s manager and 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 John to the Australian Taxation Office (ATO) using an ATO tip-off form.
Sandra is eligible for protection as she qualifies as an eligible whistleblower because she is an employee of A1 Tax Management and the disclosure will assist the Commissioner of Taxation in performing functions and duties under the taxation laws in relation to the entity.
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 to the ATO via the Tax Evasion Reporting online form.
Simon is eligible for protection under the new laws because he was engaged by ABC Constructions to provide a service and he believes that the disclosure may assist the Commissioner in performing functions and duties under a taxation law.
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 that the business can understate sales and avoid income tax.
Mary advises Noah, the registered tax agent for the business as she believes this will assist Noah in performing his functions and duties in relation to the tax affairs of the business.
Noah cannot disclose Mary’s identity to anyone, except the ATO or another eligible recipient.
We have compiled some of the questions we received during the Whistleblowing and confidentiality webinar we ran in November 2019.
A recording of this webinar is available on our YouTube channel.
For more information on the whistleblower legislation refer to:
Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019
Last modified: 9 December 2019