New whistleblower laws commenced on 1 July 2024. These laws extend whistleblower protections to individuals who ‘blow the whistle’ about a related entity to us, where they believe the information may assist us in performing our functions or duties under the Tax Agent Services Act 2009 (TASA). 

Previously, there was no protection for individuals if they disclosed information to us. They were also exposed to significant personal and financial risk. The latest reforms will now protect eligible whistleblowers when they disclose information about an entity to us (or to the Commissioner of Taxation).

One of the conditions for qualifying for whistleblower protection is to be an ‘eligible whistleblower’. As there is no existing relationship between you and the potential client, you would not be considered an eligible whistleblower. Under the legislation, you must be an individual who supplies a service to the entity (such as a tax agent service) to be considered an eligible whistleblower.

To be eligible for whistleblower protection you must be an individual who is, or has been, in a relationship with the entity you are disclosing information about. This includes:

• an officer (including a director) of the entity
• an employee of the entity
• an individual who supplies services or goods to the entity (such as a registered tax agent or BAS agent)
• an employee of a person that supplies services or goods to the entity
• an associate of the entity
• a spouse, child or dependent of an individual referred to above, or a dependent of an individual's spouse
• an individual prescribed by the Taxation Administration Regulations 2017 in relation to the entity.

To qualify for whistleblower protection, you must meet certain conditions. You must:

• be an eligible whistleblower
• make the disclosure of information to us (or to the Commissioner of Taxation)
• consider that the information you provide may assist us to perform our functions or duties under the TASA in relation to the entity or an associate of the entity.

Prior to making a disclosure, you may wish to consider seeking independent legal advice to confirm whether you are an eligible whistleblower and can qualify for whistleblower protection.

To find out more about what an eligible whistleblower is, refer to our guidance.

If you are not an eligible whistleblower, you can still qualify for protection as an individual if you make a disclosure to:

• a legal practitioner (for the purpose of obtaining legal advice or legal representation in relation to the operation of the whistleblower laws)
• a medical practitioner or psychologist (for the purpose of obtaining medical or psychiatric care, treatment or counselling, including psychological counselling)
• an entity prescribed by the regulations.

In our view, a person would not be successful in seeking information about a complainant through the Freedom of Information Act 1982 (FOI Act).

Section 37(1) of the FOI Act states:

1. A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
2. prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;
3. disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non‑existence of a confidential source of information, in relation to the enforcement or administration of the law; or
4. endanger the life or physical safety of any person.

An FOI request for documents containing information about a complainant could be resisted on this ground. 

To make a disclosure to us, simply complete our online complaints form.

You can make a disclosure to us if you consider the information may assist us in performing our functions or duties under the TASA in relation to the entity or an associate of the entity.

There are also other options available if you want to disclose information about a related entity and be protected by the whistleblower laws. This includes making a disclosure to:

• the Commissioner of Taxation, if you consider that the information may assist the Commissioner to perform their functions or duties under a taxation law in relation to the entity or an associate of the entity
• an eligible recipient in relation to the entity, such as a registered tax agent, BAS agent or internal auditor of the entity, if you:
  • have reasonable grounds to suspect the information indicates misconduct, or an improper state of affairs or circumstances, in relation to the tax affairs of the entity or an associate of the entity, and
  • consider the information may assist the eligible recipient to perform their functions or duties in relation to the tax affairs of the entity or an associate of the entity.

The new whistleblower laws commenced from 1 July 2024, so it applies to disclosures made to the TPB from this date. The laws do not apply retrospectively.

It is illegal for the tax practitioner to disclose the identity of the eligible whistleblower to others or disclose any information that is likely to lead to the whistleblower’s identification. Only the eligible whistleblower themselves can consent to sharing their identity. You are required to take all reasonable steps to reduce the risk that the eligible whistleblower’s identity will be revealed.

You cannot disclose any information relating to the client’s affairs to the new tax agent without the client’s permission or a legal duty to do so. It will be for the new tax agent to ascertain whether the deductions claimed are lawful. You are, however, able to advise the ATO of this matter if you consider that the information may assist the Commissioner of Taxation to perform their functions or duties under a taxation law in relation to the client, noting that you had a previous relationship with the client and you are eligible for whistleblower protections. This will not contravene the Code, in particular Code item 6 which relates to confidentiality of information relating to a client’s affairs.