Table of Contents
Australian FATCA Implementation
Potential topics to research & discuss: concept of IGA, process of introducing FATCA within Australia (including summary of any public / parlimentary debate , required changes to Australian law, etc.
Parlimentary Review & Legislation
Government consideration of FATCA in Australia was rushed. As such, it is debatable whether the FATCA IGA was properly analysed and debated before being implemented, particularly from the impacted individual's point of view. Clearly, Australian businesses had much to lose and mobilised the business lobby resources to push the required FATCA changes through.
The Australian Government was forced to have the IGA and associated legislation in place by the imposed US legislated FATCA deadline of 1 July 2014. Given the potential material financial penalties faced by impacted Australian businesses, the Parliamentary Committee on Treaties was urged to expedite consideration of the FATCA IGA by the (then) Australian Treasurer, Joe Hockey. In May 2014, the Parliamentary Committee on Treaties recommended that binding treaty action be taken despite concerns, stating1):
"The Committee, despite reservations about the Agreement, appreciates that it makes the best of a less than satisfactory situation."
No Privacy Impact Assessment (PIA) was done on the FATCA implementing legislation even though recommended by the Privacy Commissioner, Office of the Australian Information Commissioner (OAIC) - Item 26 of OAIC Submission to Treasury on Intergovernmental agreement to implement FATCA. Correspondence with Treasury as part of an unsuccessful FOI request, clarified that OAIC’s submission only suggested that Treasury complete a PIA on FATCA meaning there was therefore no legal requirement for Treasury to do-so. However, the privacy implications and the OAIC’s submission were subsequently discussed in the Regulation Impact Statement prepared by Treasury.
When looking at Privacy impact of FATCA, we should also be looking at CRS as similar privacy concerns exist. The Explanatory Memorandum includes a section on Human Rights which talks about privacy, but nothing from the Privacy Commissioner.
- Per Office of Best Practice Regulation “given the significance of FATCA, a post-implementation review will be required within five years” (presumably in 2019). Reference: ( Post-implementation reviews Guidance Note )