191Secrecy

#### 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.