SUPERANNUATION CONTRIBUTIONS TAX (MEMBERS OF CONSTITUTIONALLY PROTECTED SUPERANNUATION FUNDS) ASSESSMENT AND COLLECTION ACT 1997 No. 185, 1997 - SECT 28 Secrecy

SUPERANNUATION CONTRIBUTIONS TAX (MEMBERS OF CONSTITUTIONALLY PROTECTED SUPERANNUATION FUNDS) ASSESSMENT AND COLLECTION ACT 1997 No. 185, 1997 - SECT 28

(1) In this section:

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

person to whom this section applies means a person who is or has been:

(a) the Commissioner, a Second Commissioner or a Deputy Commissioner; or

(b) an officer or employee of the branch of the Australian Public Service under the direct control of the Commissioner; or

(c) otherwise appointed or employed by, or a provider of services for, the Commonwealth.

protected document means a document that:

(a) contains information about a person; and

(b) is obtained or made by a person to whom this section applies in the course of, or because of, the person's duties under or in relation to this Act.

(a) concerns a person; and

(b) is disclosed to, or obtained by, a person to whom this section applies in the course of, or because of, the person's duties under or in relation to this Act.

(2) A person to whom this section applies must not:

(a) make a record of any protected information; or

(b) whether directly or indirectly, divulge or communicate to a person any protected information about another person;

(c) under or for the purposes of this Act; or

(d) in the performance of duties, as a person to whom this section applies, under or in relation to this Act.

Penalty: Imprisonment for 2 years.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose in respect of an offence an appropriate fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on an individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act. If a body corporate is convicted of an offence, subsection 4B(3) of that Act allows a court to impose a fine that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.

(3) Subsection (2) does not prohibit the Commissioner, a Second Commissioner or a Deputy Commissioner, or a person authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner, from divulging or communicating any protected information to a person performing, as a person to whom this section applies, duties under or in relation to an Act of which the Commissioner has the general administration, or under regulations made under such an Act, for the purpose of enabling the person to perform the duties.

Divulging of information to Minister

(4) A person divulges or communicates protected information to a person in contravention of subsection (2) if the person divulges or communicates the information to a Minister.

Court may not require information or documents

(5) A person to whom this section applies is not required:

(a) to divulge or communicate protected information to a court; or

(b) to produce a protected document in court;

Information may be divulged to persons performing duties under this Act

(6) Nothing in this or any other Act of which the Commissioner has the general administration prohibits the Commissioner, a Second Commissioner or a Deputy Commissioner, or a person authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner, from divulging or communicating any information to a person performing, as a person to whom this section applies, duties under or in relation to this Act for the purpose of enabling the person to perform the duties.

Information may be divulged to court for purposes of this Act

(7) Nothing in this or any other Act of which the Commissioner has the general administration prohibits the Commissioner, a Second Commissioner, a Deputy Commissioner, or a person authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner, from:

(a) divulging or communicating to a court any information obtained under or for the purposes of such an Act; or

(b) producing in court a document obtained or made under or for the purposes of such an Act;

Information may be divulged to Insurance and Superannuation Commissioner

(8) Nothing in this section prohibits the Commissioner, a Second Commissioner or a Deputy Commissioner, or a person authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner, from divulging or communicating any protected information to the Insurance and Superannuation Commissioner, for the purpose of the administration of the Superannuation Industry (Supervision) Act 1993 .

Note: In a prosecution for an offence against subsection (2), the defendant bears an evidential burden in relation to the matters in paragraphs (2)(c) and (d) and subsections (3), (6), (7) and (8) (see subsection 13.3(3) of the Criminal Code ).

(9) A person to whom this section applies must, if and when required by the Commissioner, a Second Commissioner or a Deputy Commissioner to do so, make an oath or declaration, in a manner and form determined by the Commissioner in writing, to maintain secrecy in accordance with this section.