The ATO may soon be getting more powers under a consultation paper on electronic surveillance released by the Department of Home Affairs. Among other things, the paper proposes to grant additional powers to agencies such as ATO and AUSTRAC where “a clear and compelling case is made by that agency”.

Currently, the TIA Act, Telecommunications Act, and the Criminal Code Act, contain offences and prohibitions that prevent people, including government agencies from accessing a person’s communications and information on a person’s computer or other device. Some exceptions exist where a particular agency is granted electronic surveillance powers (ie ASIO, various State Police, and Anti-corruption bodies).

In relation to AUSTRAC, the proposed power to access telecommunication data will be able to be exercised for the purposes of fulfilling its dual financial intelligence and regulatory roles to prevent money laundering and terrorism financing. For the ATO, the government indicates that the proposed additional powers will be used for “protecting public revenue from serious financial crimes”.

“With respect to the ATO, access to telecommunications data would support or, in some cases, potentially replace expensive, resource-intensive and intrusive physical surveillance operations.”

As a part of the consultation paper, the government is also seeking to broaden the definition of “communication” to include a range of information and data transmitted electronically, including:

• electronic conversations and messages between people, whether they are travelling between devices or stored by a telecommunications provider or on a person’s device or personal network (eg phone calls, emails, instant messages, video conversations, conversations via messaging apps, and draft/unsent emails or messages that sits on a carrier/carriage service provider’s server).
• an individual’s activities on the internet comprising of web-browsing history, URLs visited, use of non-messaging apps on their smart phone.
• electronic documents, files, images or other content created by an individual, regardless of whether they are transmitted to another person (eg text documents, images either saved on a computer or cloud storage).
• interactions between an individual and a machine (eg instant messages between a person and an automated system such as a chat-bot).
• interactions/signalling information between a machine and another machine (eg data generated by connected or autonomous vehicles, smart home security systems etc).

According to the paper, the government is seeking to grant ATO with additional powers as it will complement their existing investigative powers, which are already quite vast as anyone who has had dealings with the ATO already know. While the paper indicates that the additional powers will be aimed at individuals committing tax fraud, it will also be “used to exclude non-involved individuals from lines of inquiry”, meaning that if you have any association with anyone involved in an inquiry, your data could be accessed.

At this stage, the paper does not appear to contain any information or proposals on how the data accessed in the course of eliminating non-involved individuals will be used. While it touts various safeguards in regard to the access and use of private information, it is unclear what exactly these protections will be.