Outgoing tax commissioner Chris Jordan seems to want employees of the Australian Taxation Office to behave more like cops.
“We cannot allow people to live off money that’s not theirs,” he said last week in his Press Club address. Jordan went on to highlight the threat of cyberattacks, the failure of self-managed super funds, and finally, that the ATO should be given criminal law enforcement powers.
But as one of Australia’s most formidable agencies, there’s a significant information asymmetry and power imbalance between people and the tax office. What might it mean to equip the ATO with further data access and surveillance powers akin to law enforcement?
The ATO already has a set of potent powers at its disposal. Once you’re accused of tax fraud, the agency can forcibly enter your home and search for documents (without a warrant!) and can issue “garnishee” notices to redirect funds from your account. If the ATO makes a mistake, the onus of proof is on you.
All of this and more came under fire following a 2018 Four Corners investigation that — with the help of ex-debt collector Richard Boyle, who, six years on, is still waiting to see if Australia’s meagre whistleblower protections will protect him — exposed a toxic culture and punitive tactics directed at small businesses and individuals. This year the ATO is once again attracting criticism for the controversial “robotax” scheme to excavate decades-old debts to the confusion and despair of tens of thousands of Australians. Equipping the ATO with additional powers won’t make these problems go away; it could make them worse.
Jordan’s comments aren’t the first time the ATO has flirted with growing its might. The year before it was accused of misusing its powers, an inquiry recommended the ATO be designated as a law enforcement agency, lamenting that, unlike police, the tax office isn’t allowed to use covert listening devices (heaven forbid) or compel information from banks and other third parties. Instead, it must rely on its partnership with the federal police (AFP). Worryingly, it also suggested the ATO should scrape social media sites to go after people whose posts don’t match up with their tax return.
Law enforcement agencies are afforded an astonishing array of powers in Australia’s electronic surveillance framework, as well as a suite of exemptions from privacy law for “enforcement-related activities”. For more than a decade the ATO has been advocating for an exemption from certain privacy principles and has repeatedly attempted to join the list of agencies able to obtain warrant-free access to telecommunications metadata.
But a thirst for additional powers isn’t enough to justify them. Given the risks to human rights, surveillance powers must be strictly limited, and when employed, done so in ways that are necessary, proportionate and with robust oversight. As highlighted by the Law Council in 2022, the necessity of conferring such power onto the ATO hasn’t been established.
None of this is happening in isolation — it sits within the context of Australia’s expanding surveillance regime. It was only in 2018 that Australia passed the Assistance and Access Act, empowering law enforcement to intercept and monitor encrypted communications. Does the ATO want those powers too? The Identify and Disrupt Act in 2021 went even further, enabling surveillance of entire networks by the AFP and Australian Criminal Intelligence Commission (ACIC).
The ATO isn’t alone in its quest to act like a police force. Services Australia has also taken an increasingly punitive, surveillance-based approach to social security. Through contracts with Israeli spyware company Cellebrite, the department can extract data from people’s devices to conduct investigations, including to check up on Centrelink users’ relationship status. Services Australia has also provided the spyware to other government departments. The commissioner’s comments form part of a worrying trend of government agencies losing sight of their purpose and becoming enamoured by data accumulation and the disciplinary power of digital surveillance.
The actual police already have powers that go far beyond what many consider to be justifiable — we ought to be considering whether such surveillance is reasonable, proportionate or necessary at all, rather than seeking to expand and entrench it further.
While there are evolving challenges that government agencies need to adapt and respond to, this ought to beg the question: what if solutions to modern governance problems looked like something other than a relentless march toward more data, more surveillance and more policing?
