Legal Unit
Tax Practitioners Board
GPO Box 1620
Sydney NSW 2001
GV
Phone:
1300 362 829
Email:
xxx@xxx.xxx.xx
Website:
www.tpb.gov.au
14 August 2024
By email only: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear GV,
Your freedom of information request to the Tax Practitioners Board
1. I refer to your request under the
Freedom of Information Act 1982 (
FOI Act) to the
Tax Practitioners Board (
the Board) on 15 July 2024 (
FOI request).
2. On 15 July 2024, you specifically requested access to
“…minutes of meetings, briefs, and file notes relevant to the following matters
related to the Tax Agent Services (Code of Professional Conduct)
Determination 2024:
1) The decision to not conduct consultations with professional bodies in the
accounting and tax industries;
2) Consultations with the TPB by Minister Jones (or his office) in respect of the
determination;
3) Impact of the determination on the tax industry in Australia;
4) Guidance products to be prepared for tax agents bound by changes to the
Code of Professional Conduct.”
3. I am an officer authorised under section 23 of the FOI Act to make decisions
regarding access to documents. My decision and the reasons for that decision are
outlined below.
Decision
4. The Board has conducted a search of its records for documents which fall within
the scope of your request.
5. I have decided, pursuant to section 11A of the FOI Act, to grant you access to part
of the documents requested, specifically those that are characterised by the fourth
category of your FOI request.
6. Access to those documents has been deferred under section 21 of the FOI Act.
The complete schedule of documents considered under this FOI request will be
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provided to you, along with copies of the documents to which access has been
granted, at a later date in time, in accordance with my reasoning below.
7. I also note that some documents within the scope of your FOI request could not be
found or do not exist. The Board was unable to locate any documents which would
fall within categories one, two or three of your FOI request. Therefore, I refuse
access to those documents to the extent that section 24A of the FOI Act applies.
8. In making my decision, I referred to the following:
a. the terms of your FOI request;
b. the content of the identified documents that fall within the scope of your FOI
request;
c. the relevant provisions of the FOI Act;
d. the guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (
FOI Guidelines); and
e. the relevant provisions of the
Tax Agent Services Act 2009 (
TASA).
9. The reasons for my decision are set out below.
Reasons for decision
Section 21 – Deferment of access
10. Section 21 of the FOI Act states:
(1) An agency which, or a Minister who, receives a request may defer the
provision of access to the document concerned:
(a) if the publication of the document concerned is required by law until
the expiration of the period within which the document is required to
be published; or
(b) if the document concerned has been prepared for presentation to
Parliament or for the purpose of being made available to a particular
person or body or with the intention that it should be so made available
until the expiration of a reasonable period after its preparation for it to
be so presented or made available; or
(c) if the premature release of the document concerned would be contrary
to the public interest until the occurrence of any event after which or
the expiration of any period of time beyond which the release of the
document would not be contrary to the public interest; or
(d) if a Minister considers that the document concerned is of such general
public interest that the Parliament should be informed of the contents
of the document before the document is otherwise made public until
the expiration of 5 sitting days of either House of the Parliament.
(2) Where the provision of access to a document is deferred in accordance with
subsection (1), the agency or Minister shall, in informing the applicant of the
reasons for the decision, indicate, as far as practicable, the period for which
the deferment will operate.
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link to page 3 link to page 3 link to page 3 link to page 3
11. Under category four of your FOI request, you have requested access to
“minutes
of meetings, briefs, and file notes relevant to… [g]uidance products to be prepared
for tax agents bound by changes to the Code of Professional Conduct”.
12. Although I grant access to those documents under section 11A of the FOI Act, I
consider it necessary to defer access to those documents pursuant to paragraph
21(1)(c) of the FOI Act, by reason that their release would be contrary to the public
interest at this time.
Public interest
13. The Board has a critical role in protecting consumers by regulating the provision of
tax agent services within Australia. In addition to its investigative and enforcement
functions, the Board, on behalf of the Government, publishes official guidance on
the interpretation and operation of the
Tax Agent Services Act 2009 (
TASA), and
legislative instruments formed under the TASA.
14. The Ministerial power under section 30-12 of the TASA has been used for the first
time to publish the Tax Agent Services (Code of Professional Conduct)
Determination 2024 (the Determination)
.1
15. The Board is currently in the process of drafting guidance documents in relation to
the Determination
.2 Commencing from early August, the Board will be seeking
public consultation on the Board’s draft guidance for specific provisions within the
Determination. The public consultation process is expected to finalise in early
October, with all guidance products being released in early November.
16. To date, there has been significant public interest in the Determination, and this will
continue through the public consultation process for the Board’s draft guidance in
relation to the Determination. Given the importance of the Board’s guidance in
interpreting and applying the TASA and other legislative instruments, it is critical
that the process of receiving feedback for the drafting of that guidance is properly
and fairly managed. This ensures that the Board’s guidance materials are
consistent and reliable.
17. Therefore, I consider that the release of documents at this time under this FOI
request is contrary to the public interest in that it would likely interfere with the
proper and orderly conduct of genuine public participation in the publicly available
consultation process currently underway for the draft guidance products.
18. Accordingly, it is my decision to defer the release of the documents until after the
occurrence of an event, beyond which the release of the documents would no
longer be contrary to the public interest.
Period of deferment
19. The release of the documents is deferred until after the publication of all guidance
products in relation to the Determination, this being the event referred to above in
paragraph 18.
1 TPB Media Release on the use of the Ministerial power to publish the Determination:
https://www.tpb.gov.au/new-code-determination-lifts-professional-standards-tax-practitioners. 2 TPB Communique on the Tax Practitioner Governance and Standards Forum and
Consultative Forum
: https://www.tpb.gov.au/tax-practitioner-governance-and-standards-
forum-and-consultative-forum-24-july-2024.
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Section 24A – Requests may be refused if documents cannot be found, do not exist or
have not been received
20. A thorough and comprehensive search of the Board’s records was undertaken to
locate documents that fall within each of the four specified categories of documents
that you refer to in your FOI request.
21. Section 24A(1) of the FOI Act states:
(1) An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency's or Minister's possession but cannot be found; or
(ii) does not exist.
22. I am satisfied that all reasonable steps have been taken to find other documents
that would fall within categories one, two and three of your FOI request, and that
those documents cannot be found or do not exist.
23. Accordingly, I must refuse your request for access to those documents in
accordance with subsection 24A(1) of the FOI Act.
Your review rights
24. Please refer to the
enclosed ‘Notice of Rights of Review’ for further information about
your review rights in relation to this decision regarding your FOI request.
Further assistance and information
25. Please note that under section 70-35 of the TASA, the Board is not obliged to disclose
official information to a court.
26. If you have any queries in relation to this decision, please do not hesitate to contact
the Board’s Legal Unit by email at
xxx@xxx.xxx.xx.
Yours sincerely,
Legal Officer
Tax Practitioners Board
Encl:
1. Notice of Rights of Review
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