Obstruction of Commissioner or an Authorised Officer

– section 88 of the Taxation Administration Act 1997
Officer
This charge is generally laid in situations where a person or corporation hinders or obstructs the Tax Department or fails to provide information when requested.
Examples of Obstruction of Commissioner or an Authorised Officer
  • You are suspected of cheating on your tax. An authorised officer orders that you give them the password to your computer which contains relevant information. Assuming they provided you with proper notice, and they were exercising their power lawfully, you would be committing an offence if you refused to provide your password.
Questions in cases like this
  • Was it a Commissioner or authorised officer? Did they identify themselves as such?
  • Was the Commissioner/authorised officer exercising power under the Act? Were they exercising this power lawfully?
  • Did you prevent or obstruct the Commissioner/authorised officer from exercising their power?
What are some of the possible defences to Obstruction of Commissioner or an Authorised Officer?

Defences to this charge can include a factual dispute or a reasonable reason for not providing the information required. Lack of intent and the concept of beyond reasonable doubt may also be used.

You should ring us and discuss your case if you have been charged.

Deciding on whether to plead guilty or not has consequences for you and should be made after proper discussion with a criminal lawyer.

Maximum penalty and court that deals with this charge

Obstruction of Commissioner or an Authorised officer is the sort of charge regularly heard in the Magistrates’ Court.

Legislation

The legislation for this offence can be found in section 88 of Taxation Administration Act 1997 (‘the Act’).

Elements of the offence

The prosecution must prove the following beyond reasonable doubt:

  1. The accused prevented the Commissioner or an authorised officer from exercising a function under Part 9 Division 2 of the Act; OR
  2. The accused hinder or obstructed the Commissioner or an authorised officer in the exercise of that function, OR
  3. Without reasonable excuse, the accused refused or failed to comply with a requirement made or to answer a question of an authorised officer asked in accordance with section 81(1) or 86.

Note that the prosecution is only required to prove one out of these three forms of the offence.

    1. Did the accused prevent a Commissioner/authorised officer from exercising a function?
      Commissioner is defined under the Act as the Commissioner of State Revenue employed under Part 3 of the Public Administration Act 2004.

      Authorised officer means the Commissioner or a person appointed as an authorised officer under section 70(2).

      In order to satisfy this element, the prosecution need to prove that the accused prevented the authorised officer from exercising a function under Part 9 Division 2 of the Act. These functions include using and inspecting documents, seizing electronic equipment, conducting searches of premises and accessing records. The Commissioner’s investigative powers are outlined in detail in the Act.

      “Was the authorised officer exercising power under the Act?”

      Call Doogue + George

      There are many ways an accused may prevent a Commissioner or authorised officer from exercising a function. Notably, an accused is not guilty of an offence arising from the entry of an authorised officer onto premises unless the court hearing the charge is satisfied that, at the material time, the authorised officer:

      1. Identified himself or herself as an authorised officer; and
      2. Warned the person that a failure or refusal to comply with the requirement may constitute an offence.1

      Therefore, the accused would not be guilty of an offence under this section if an authorised officer entered their premises and failed to inform the accused that they are an authorised officer.

    2. OR: Did the accused hinder or obstruct the Commissioner/authorised officer in the exercise of that function?
      This is the same as above. Hindering or obstructing a Commissioner or authorised officer is usually a more aggravated version of the offence, as it implies more deliberate action on behalf of the accused.
    3. OR: Did the accused fail to comply with requirements under section 81(1) or 86?
      This is also largely the same as above.

      According to section 81(1), if:

      1. a thing found at premises that an authorised officer has entered under section 76 is or includes a disk, tape or other device for storage of information; and
      2. equipment at the premises may be used with the disk, tape or other storage device; and
      3. the authorised officer believes on reasonable grounds that the information stored on the disk, tape or other storage device is relevant to the administration of a taxation law…

      …the authorised officer or an assistant of the authorised officer may operate, or may require the occupier or an employee of the occupier to operate, the equipment to access the information.2

      Therefore, if an accused refuses to operate equipment to allow the authorised officer to access the information contained therein, the accused will be committing an offence.

      According to section 86, an authorised officer who:

      1. exercises a power of entry under Part 9 Division 2 of the Act; and
      2. produces his or her identity card for inspection by a person—

      …may, to the extent that it is reasonably necessary to do so for the administration or execution of a taxation law, require the person to:

      • answer a question
      • give information to the authorised officer
      • produce or provide documents or things to the authorised officer and
      • to give reasonable assistance to the authorised officer3

      Therefore, if an accused refuses to answer a question or give information or even give reasonable assistance to the authorised officer, they will be committing an offence.

      Whether or not an accused has a ‘reasonable excuse’ for failing to comply with this section will be a matter of fact.

Penalties for this offence

FineThe maximum penalty for this offence is:

      • 500 penalty units in the case of a body corporate;
      • 100 penalty units in any other case.

If the offence was committed by a body corporate, an officer of the body corporate also commits an offence if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.4



[1] Section 88 Subsection 2 of the Taxation Administration Act 1997.
[2] Section 81 Subsection 1 of the Taxation Administration Act 1997.
[3] Section 86 of the Taxation Administration Act 1997.
[4] Section 130B of the Taxation Administration Act 1997.