TalkTax

Inland Revenue have released a draft standard practice statement (ED0117) on the recording of interviews (either voluntary or under section 19 of the Tax Administration Act 1994 (TAA)).

The practice statement provides that Inland Revenue will advise the taxpayer when it is intended that an interview will be recorded. Compulsory interviews under section 19 of the TAA will always be recorded (consent is not required), whereas voluntary interviews will only be recorded with the consent and cooperation of the interviewee. Inland Revenue have specifically stated there will be no secret recording of interviews. In most cases, upon request to Inland Revenue, the interviewee will be provided with a copy of the recording (written, audio or visual).  Inland Revenue will withhold a copy of the recording where there is reason to suspect that providing a copy is likely to “prejudice the maintenance of the law”.

The bulk of the contents of the draft standard practice statement are of no surprise. What is of interest is Inland Revenue’s statement that no secret recordings will occur. Information privacy principles allow for the collection of personal information by an agency. While such collection cannot breach the privacy principles, there is prima facie no requirement for consent before the recording of such information.

This was made clear in the Court of Appeal decision in Harder v Proceedings Commissioner [2000] 3 NZLR 80, which concerned the effect of the Privacy Act 1993 on secret tape recordings of a conversation between a legal practitioner and the party opposing his client. The majority of the Court in Harder found that secretly recording a telephone conversation did not breach privacy Principles 3 and 4 in the Privacy Act 1993. The Court found that secretly recording a telephone conversation does not automatically breach Principle 3 because the Principle is concerned with the collection of the information, not the manner in which it is collected. Accordingly, it is enough that a person knows that information is being collected; they do not necessarily have to know about the manner in which it is being collected.

The Inland Revenue could, in the absence of this statement of practice, secretly record interviews without breaching the Privacy Act 1993.