Other articles on the changes made to s 338(2) of the Migration Act 1958 (Cth) published by the writer discussed only Parts 1 and 2 of Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018. The present article discusses Part 3. The commencement day of the Act is to be fixed by proclamation.
Part 3 inserts s 506B into the Migration Act, allowing the Secretary to request any of the following persons to request the tax file number ‘of a person who is an applicant for, or holder or former holder of, a visa of a kind (however described) [to be] prescribed by the regulations’:
a) the applicant, holder or former holder;
(b) an approved sponsor of the applicant, holder or former holder;
(c) a former approved sponsor of the applicant, holder or former holder;
(d) a person who has nominated the applicant or holder in an approved nomination that has not ceased under the regulations;
(e) a person who nominated the holder or former holder in an approved nomination that has ceased under the regulations.
The intention behind the change
Paragraph 30 of the explanatory memorandum provides as follows:
Tax file numbers will assist the Department of Immigration and Border Protection to undertake more streamlined, targeted and effective compliance activity. For example, in the context of the employer sponsored skilled migration programme, information obtained from the Australian Taxation Office (ATO) will assist the Department to identify skilled visa sponsors who breach their obligations, including by underpaying visa holders, as well as visa holders who work for more than one employer in breach of their visa conditions.
Consequences of non-disclosure to the Department
It is interesting to note that there is no sanction if a person mentioned above refuses to disclose a tax file number following a request from the Secretary. That means that although the change allows for the Secretary to make such a request, non-compliance with it does not seem to carry any consequences. As per paragraphs 34 to 36 of the memorandum:
34. New paragraph 506B(2)(a) allows a request to be made to a visa applicant, visa holder or former holder to provide their own tax file number. Consistent with subsection 7(3) of the Privacy (Tax File Number) Rule 2015 issued under section 17 of the Privacy Act 1988, it is not the intention to require a visa applicant, visa holder or former holder to provide their tax file number.
35. … [The change] does not by itself require the visa applicant, visa holder or former holder to provide their tax file number to the sponsor or nominator.
36. … It is not the intention that a person who receives a request under new subsection 506B(1) be required to obtain the requested tax file number if they do not hold it…
Consequences of disclosure to the Department
New s 506B(3) reads as follows:
A person to whom a request is made under subsection (1) who is lawfully in possession of the tax file number may disclose the tax file number in accordance with the request.
Paragraph 36 of the memorandum starts as follows:
New subsection 506B(3) ensures that a person to whom a request is given under new subsection 506B(1) can lawfully disclose the requested tax file number to the Department if they lawfully hold the tax file number…
The exception to the legislative authorisation of disclosure is where an employer has obtained a tax file number unlawfully.
Consequences of disclosure by the Department
New s 506B(7) allows an officer to disclose a tax file number provided under the new section for purposes to be prescribed by regulations. What is not clear is whom an officer can disclose it to. Further, it will be interesting to see whether the purposes of disclosure by the Department to be prescribed by regulations, if any, are ultra vires the Act. For instance, would not a disclosure through an open (ie which does not require password) internet website be considered ultra vires the Act?
Disclaimer: the above is a mere tentative analysis of Part 3 of the Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018 and might not reflect how the Department, the AAT or the courts interpret those changes. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.