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ABORIGINAL AND TORRES STRAIT ISLANDER ACT 2005 - SECT 191 Secrecy

ABORIGINAL AND TORRES STRAIT ISLANDER ACT 2005 - SECT 191

Secrecy

  (1)   This section applies to a person:

  (a)   who is or has been an Indigenous Business Australia Director or acting Indigenous Business Australia Director;

  (b)   who is or has been the Indigenous Business Australia Chief Executive Officer or an acting Indigenous Business Australia Chief Executive Officer ;

  (c)   who is or has been employed or engaged under section   175 or 178;

  (d)   who is performing, or who has performed, duties on behalf of Indigenous Business Australia pursuant to an arrangement under section   176; or

  (e)   whose services are being or have been made available to Indigenous Business Australia pursuant to an arrangement under section   177.

  (2)   Subject to this section, a person to whom this section applies shall not, either directly or indirectly, except for the purposes of this Act, or of a prosecution for an offence against this Act:

  (a)   make a record of, or divulge or communicate to any person, any information concerning the affairs of another person acquired by the first - mentioned person in the performance of duties for the purposes of this Act; or

  (b)   produce to any person a document relating to the affairs of another person furnished for the purposes of this Act.

Penalty:   50 penalty units.

Exception--housing or business loans

  (2A)   It is a defence to a prosecution for contravening subsection   ( 2), if:

  (a)   in relation to a prosecution for divulging information to a person or body:

  (i)   the information relates either to a housing loan or a business loan made, or treated as having been made, by Indigenous Business Australia or to a grant made, or treated as having been made, by Indigenous Business Australia, in relation to a housing loan or a business loan; and

  (ii)   the information was communicated to a person authorised in writing by the person to whose affairs the document relates to receive the information; or

  (b)   in relation to a prosecution for producing a document to a person or body:

  (i)   the document relates either to a housing loan or a business loan made, or treated as having been made, by Indigenous Business Australia or to a grant made, or treated as having been made, by Indigenous Business Australia, in relation to a housing loan or a business loan; and

  (ii)   the document was produced to a person authorised in writing by the person to whose affairs the document relates to receive the document.

Note:   A defendant bears an evidential burden in relation to the matter in subsection   ( 2A) (see subsection   13.3(3) of the Criminal Code ).

Exception--Indigenous Business Australia Chief Executive Officer

  (2B)   Despite subsection   ( 2), the Indigenous Business Australia Chief Executive Officer may divulge or communicate information, or produce a document, to the Secretary of the Department for the purposes of the Department.

Note:   A defendant bears an evidential burden in relation to the matter in subsection   ( 2B): see subsection   13.3(3) of the Criminal Code .

  (2C)   In exercising a power under subsection   ( 2B), the Indigenous Business Australia Chief Executive Officer must act in accordance with any guidelines in force under section   191AA.

Exception--public interest

  (2D)   Despite subsection   ( 2), the Indigenous Business Australia Chief Executive Officer may, if he or she determines in writing that it is necessary in the public interest, divulge or communicate information, or produce a document, to specified persons for specified purposes.

Note:   A defendant bears an evidential burden in relation to the matter in subsection   ( 2D): see subsection   13.3(3) of the Criminal Code .

  (2E)   In making determinations under subsection   ( 2D), the Indigenous Business Australia Chief Executive Officer must act in accordance with any guidelines in force under section   191AA.

  (2F)   A determination under subsection   ( 2D) is not a legislative instrument.

Exception--consent

  (2G)   Despite subsection   ( 2), a person may:

  (a)   divulge or communicate information to a person authorised in writing, by the person to whose affairs the information relates, to receive the information; or

  (b)   produce a document to a person authorised in writing, by the person to whose affairs the document relates, to receive the document.

Note:   A defendant bears an evidential burden in relation to the matter in subsection   ( 2G): see subsection   13.3(3) of the Criminal Code .

Exception--information already publicly available

  (2H)   Despite subsection   ( 2), a person may:

  (a)   make a record of information, if the information is already publicly available; or

  (b)   divulge or communicate information to a person, if the information is already publicly available; or

  (c)   produce a document to a person, if the information contained in the document is already publicly available.

Note:   A defendant bears an evidential burden in relation to the matter in subsection   ( 2H): see subsection   13.3(3) of the Criminal Code .

Exception--making records

  (2J)   Despite subsection   ( 2), a person may make a record of information in connection with the exercise of a power under subsection   ( 2B), (2D) or (2G).

Note:   A defendant bears an evidential burden in relation to the matter in subsection   ( 2J): see subsection   13.3(3) of the Criminal Code .

Divulging or communicating information to courts

  (3)   A person to whom this section applies shall not be required to divulge or communicate to a court any information referred to in subsection   ( 2) or to produce in a court any document referred to in that subsection, except when it is necessary to do so for the purposes of this Act, or of a prosecution for an offence against this Act.

Definitions

  (4)   A reference in this section to an offence against this Act includes a reference to:

  (a)   an offence against section   6 of the Crimes Act 1914 ; or

  (aa)   an offence against section   11.1, 11.4 or 11.5 of the Criminal Code ; or

  (b)   an offence against section   134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code ;

where the offence relates to this Act.

  (5)   In this section:

"court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

"produce" includes permit access to.

"this Act" includes the regulations.