Sections 20 and 25 of the Tax Agent Services (Code of Professional Conduct) Determination 2024 (Determination) require you to: 

• manage any conflicts of interest when undertaking activities for an Australian government agency (section 20)
• maintain confidentiality in dealings with Australian government agencies (section 25).

When do these obligations apply

These obligations apply from:

• 1 July 2025 – for tax practitioners with 100 or less employees
• 1 January 2025 – for other tax practitioners.

Managing conflicts of interest

When undertaking any activity in your professional capacity (whether paid or otherwise) for an Australian government agency, you must:

• take reasonable steps to identify and document any ‘material’ conflict of interest (real or apparent) you have in connection with the activity
• disclose the details of the conflict of interest you have identified and documented as soon as you become aware of the conflict
• take reasonable steps to manage, mitigate, and where appropriate and possible avoid, the conflict of interest you have identified and documented (except where the agency has expressly agreed otherwise).

This obligation is intended to assist in minimising any potential adverse impacts to Australian government agencies when a registered tax practitioner has a conflict of interest in connection with any activity they undertake for an Australian government agency.

What is a ‘material’ conflict of interest?

The test of whether a conflict of interest is ‘material’ will depend on the facts and circumstances and whether a reasonable person, having the knowledge, skill and experience of a registered tax practitioner, would expect it to be of substantial import, effect or consequence. This requires you to exercise your professional judgement, taking into account the facts and circumstances surrounding the activities you are undertaking for the government agency. A material conflict of interest may arise in circumstances, or through conduct, that may result in a potential or perceived benefit or gain to you (including financially) or to your employer, clients or other associate. A material conflict of interest may arise in situations where:

• you are engaged by a government agency to consult on proposed law reform that impacts your clients
• you misuse confidential information obtained in dealings with government where this conduct may result in a potential or perceived benefit or gain to you
• you interfere in government decision making where this conduct may result in a potential or perceived benefit or gain to you. 

Actions to take to meet this obligation

1. Identify and document any material conflict of interest

You must take reasonable steps to record any material conflict of interest relating to an activity you undertake for an Australian government agency as soon as possible and practicable after it is identified. You should keep adequate records which should contain sufficient details of the conflict of interest, including details of the materiality of the conflict.

2. Disclose details of material conflict of interest

You must disclose the details of any material conflict of interest (real or apparent) you have identified at Step 1 above to the Australian government agency as soon as you become aware of the conflict. This extends to any material conflict of interest that you are aware of relating to any activity undertaken (whether the same or different activity) or for another government agency that has been identified as part of Step 1 above. This may include any conflict of interest of any employee, associate, contractor or other relevant entity.

Details to be disclosed

 The details you disclose should be specific and meaningful to the agency, and refer to the specific activities to which the conflict relates. For example, the details to be disclosed may include, amongst others:

• the nature and extent of the conflict
• what interest, association or incentive gives rise to the conflict
• identity of those related to the conflict and the extent to which they have been involved in the services provided to the government agency
• when the conflict was first identified and actions that have been taken or are proposed to be taken to avoid the conflict or mitigate any damage arising from the conflict
• any benefit, financial or otherwise, obtained due to the conflict.

You should allow a reasonable time for the government agency to assess the effect of the conflict of interest.

3. Take reasonable steps to manage, mitigate or avoid any material conflict of interest

You must take reasonable steps to manage and mitigate any identified material conflict of interest in relation to an activity undertaken for an Australian government agency. Some examples of reasonable steps may include:

• enforcing procedures for managing, mitigating and avoiding conflicts of interest
• not allocating staff with conflicts to certain projects or tasks, or limiting their role to initial identification and analysis of issues
• having internal governance policies relating to conflicts of interest, including consequences for failing to comply with those procedures
• maintaining a conflict of interest register and information handling procedures, and using technology to limit information access to those with a legitimate need to know.

In some cases, regardless of measures you put in place, the only way to adequately manage the conflict will be to avoid it altogether. In such situations, you must decline the engagement.

Australian government agency’s discretion

Once you disclose a conflict of interest to the Australian government agency, your continued engagement in the activity will be at the agency’s discretion. The agency may consider a range of factors when considering whether to continue with the engagement, such as the nature and extent of the conflict, the steps you have taken to manage and mitigate the conflict, and the sensitive nature of the activities.

There may be circumstances where the only way the agency can obtain relevant and necessary expertise is to continue the engagement with you notwithstanding that you have a material conflict of interest. In these circumstances, the agency may provide express consent to accept the conflict of interest. 

Where the agency provides its express consent, you must manage the conflict of interest in a way that is consistent with the express consent and also your confidentiality obligation under section 25 of the Code Determination.

Maintaining confidentiality in dealings with Australian government agencies

When undertaking an activity with an Australian government agency in your professional capacity (whether paid or otherwise), you must:

• not disclose any information received (directly or indirectly) from the agency in connection with the activity to a third party*
• not use any information received (directly or indirectly) from the agency for your personal advantage or the advantage of your employee, employer, client or an associate.

The obligation is intended to protect against the unauthorised disclosure and improper use of information you obtain in relation to activities you undertake with an Australian government agency.

In addition to this obligation under section 25 of the Code Determination, the Privacy Act 1988 (Cth) sets out a number of Australian Privacy Principles which govern the use of, storage and disclosure of personal information and other conduct by organisations. For further information about these privacy principles, refer to the Office of the Australian Information Commissioner’s website.

*Note: A third party is any entity other than you (the registered tax practitioner) and the government agency.

Obligations to not disclose information

You must not disclose information you receive from an activity you undertake with an Australian government agency, subject to some exceptions.

Exceptions for disclosing information

Exceptions to this obligation include the following:

• there is a legal duty to disclose the information
• the further disclosure of the information was authorised (expressed or implied, and as reasonably concluded) by the Australian government agency and the disclosure was consistent with the agency’s authorisation.

Legal duty

Examples of circumstances where you may have a legal duty to disclose such information to a third party may include providing information to:

• the Tax Practitioners Board (TPB) under the breach reporting obligations in the Tax Agent Services Act 2009 (TASA)
• the TPB in response to a notice issued for undertaking enquiries about a tax practitioner’s conduct, including a notice issued under section 60-100 of the TASA
• a court or tribunal under a direction, order or other court process
• AUSTRAC in accordance with reporting obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006
• the Australian Taxation Office in response to a notice issued under section 353-10 in Schedule 1 to the Taxation Administration Act 1953 
• an Australian Financial Services licensee pursuant to section 912G of the Corporations Act 2001.

The TASA, including this obligation under section 25 of the Code Determination, does not affect the law relating to legal professional privilege (LPP). 

Where you consider that LPP may apply, you should seek legal advice about its application. 

Further disclosure was authorised by the agency

Some factors that can help you conclude if the further disclosure of information was authorised by the agency include:

• the further disclosure was expressly authorised or implied by the agency either in writing or otherwise to you
• comments made by the agency to you when providing the information
• the availability of the information provided to you from other sources.

You should use your professional judgement to assess whether the further disclosure of information was authorised, depending on the circumstances.

Where you intend to disclose the information to a third party, you should clearly inform the agency that such disclosure will be made and obtain the agency’s permission. This permission may be by way of a signed letter, signed consent, or other communication with the government agency. The relevant communication should outline the disclosures to be made and the entity/entities that will have access to the information disclosed.

Inadvertent disclosure

You must ensure you have appropriate arrangements to prevent any inadvertent disclosure of information. Some examples where you need to be mindful of your obligations include when:

• disposing IT equipment or mobile devices that contain data that may be accessible by third parties
• leaving information in unsecured locations
• using shredding and data disposal services
• using external service providers such as IT consultants, virtual assistants and cleaners
• virtual meetings to discuss information with third parties in attendance
• using public Wi-Fi or unsecure network when providing services for a government agency
• using unencrypted cloud storage.

Obligation to not use information for personal advantage

You must not use information you receive (directly or indirectly) from an activity you undertake with an Australian government agency in a way that may provide for a personal advantage, except in situations where:

• it is reasonable to conclude that the information received from the Australian government agency authorised by that agency to be used in a way that may provide for such a personal advantage, and
• any further use of the information was done consistently with the agency’s authorisation.

Personal advantage

Simply put, if you use any confidential information you obtain from the agency for a purpose other than for which it was intended, it would be considered to have been used for your personal interest. It is not necessary that the use of the information was likely or guaranteed to result in a personal advantage. 

This obligation imposes a strict restriction to ensure that no personal advantage is gained from using information obtained from Australian government agencies relating to activities undertaken with that agency (except where it was authorised by the agency). This obligation extends to include the use of the information for the personal advantage of an employee, employer, a client or an associate.

Further information

For detailed information about how this obligation applies, including some practical case studies, refer to TPB(I) 46/2024 Managing conflicts of interest when undertaking activities for government and maintaining confidentiality in dealings with government.

Helpful resources

• FAQs – Code Determination
• Code Determination webinar series – help shape our guidance products on ‘Upholding and promoting ethical standards’ and ‘Conflicts of interest and confidentiality with government’