162Disclosure of confidential commercial information

#### 162 Disclosure of confidential commercial information (1) A person who is or has been a director, the Chief Executive Officer, or a member of the staff, of the APVMA, or is or has been a consultant to the APVMA, a mediator or arbitrator appointed under this Code, or a co‑ordinator designated for a jurisdiction, must not disclose, directly or indirectly, to another person any information about an active constituent for a proposed or existing chemical product, about a chemical product or any of its constituents, or about a label for containers for a chemical product, that: (a) the person knows to be confidential commercial information; and (b) was acquired by the person in the performance of such functions or duties or the exercise of such powers. Penalty: Imprisonment for 2 years. (1A) Subsection (1) does not apply to the extent that the person engages in the conduct in the performance of functions or duties, or the exercise of powers, under this Code. > Note: The defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3) of the Criminal Code. (2) Subsection (1) does not prohibit the disclosure of information about a constituent or a chemical product to a court in any proceeding but the court must do all things necessary to prevent disclosure of that information to any other person except for the purpose of the proceeding. (3) Despite subsection (1), a person (the authorised person) that the APVMA has authorised to act under this section may: (a) disclose confidential commercial information about an active constituent for a proposed or existing chemical product: (i) by disclosing a summary of an evaluation of the constituent made by the APVMA or by a prescribed authority or person; or (ii) for the purposes of the APVMA’s reconsideration of the approval of the constituent under Division 4 of Part 2—by disclosing the relevant particulars of the constituent; or (iii) by disclosing, subject to the conditions prescribed by the regulations, information about the toxicity of the constituent and its residues in relation to relevant organisms and ecosystems, including human beings; or (b) disclose confidential commercial information about a chemical product or any of its constituents: (i) if the product contains an active constituent that, before the registration of the product, was not contained in a chemical product registered in this or another jurisdiction under the Agvet Code, or a corresponding previous law, of the jurisdiction concerned—by disclosing a summary of an evaluation that the APVMA has made of the product; or (ii) for the purposes of the APVMA’s reconsideration of the registration of the product under Division 4 of Part 2—by disclosing the relevant particulars of the product; or (iii) by disclosing, subject to any conditions prescribed by the regulations, information about the toxicity of the product and its residues in relation to relevant organisms and ecosystems, including human beings; or (c) disclose confidential commercial information about an active constituent for a proposed or existing chemical product, or about a chemical product or any of its constituents, to: (i) the Commonwealth, a State or a Territory, or an authority of the Commonwealth, of a State or of a Territory; or (ia) the authorising party for the information; or (ii) a person who is expressly authorised to obtain the information by the authorising party for the information; or (iii) a prescribed authority or prescribed person; or (d) subject to subsection (4), disclose confidential commercial information about an active constituent for a proposed or existing chemical product, or about a chemical product or any of its constituents, to: (i) an overseas authority having similar functions to the APVMA; or (ii) a prescribed international organisation; if the authorised person thinks it is reasonable to make the disclosure and the authorising party for the information has consented to the disclosure or the authorised person has made reasonable efforts to obtain that consent. (4) An authorised person must not disclose information to an authority or organisation under paragraph (3)(d) without the consent of the authorising party for the information unless: (a) the authorised person has given to the authorising party written notice of the decision to disclose the information; and (b) a period of 28 days has elapsed since the notice was given. (6) A person who acquires information because of a disclosure under subsection (3), and any person under the control of that person, is, in respect of that information, subject to the same obligations and liabilities under subsection (1) as if that person were a person performing duties under this Code and had acquired the information in the performance of those duties. (7) Despite subsection (1), the authorised person may permit confidential commercial information about a constituent or chemical product to be disclosed to a Government, body or person: (a) for the purpose of enabling the Government, body or person to give advice to the APVMA or to another Government, body or person in accordance with section 8 of the Agricultural and Veterinary Chemicals (Administration) Act 1992; or (b) if the person is a co‑ordinator for a jurisdiction—for the purpose of enabling the co‑ordinator to make a recommendation to the APVMA in accordance with paragraph 111(1)(c). > Note: The defendant bears an evidential burden in relation to the matter in subsection (7). See subsection 13.3(3) of the Criminal Code. (8) A person who acquires information because of a disclosure under subsection (7), and any person who is or has been under the control of that person, must not disclose that information, directly or indirectly, to any person if the person disclosing the information knows that the information is confidential commercial information. Penalty: Imprisonment for 2 years. (8A) Subsection (8) does not apply to conduct engaged in with the intention of providing advice to the APVMA in accordance with section 8 of the Agricultural and Veterinary Chemicals (Administration) Act 1992 or making a recommendation to the APVMA in accordance with paragraph 111(1)(c). > Note: The defendant bears an evidential burden in relation to the matter in subsection (8A). See subsection 13.3(3) of the Criminal Code. (8B) In subsection (8), strict liability applies to the physical element of circumstance, that the disclosure was under subsection (7). > Note: For strict liability, see section 6.1 of the Criminal Code. (9) If a person who is or has been a director, the Chief Executive Officer, or a member of the staff, of the APVMA, or is or has been a consultant to the APVMA, a mediator or arbitrator appointed under this Code, or a co‑ordinator designated for a jurisdiction, has disclosed to another person, except under subsection (3) or (7), any confidential commercial information about an active constituent for a proposed or existing chemical product, or about a chemical product or any of its constituents, that was acquired by the first‑mentioned person in the performance of functions or duties, or the exercise of powers, under this Code, the other person, and any person who is or has been under the control of the other person, must not disclose that information, directly or indirectly, to any person if the person disclosing the information knows that the information is confidential commercial information. Penalty: Imprisonment for 2 years. (9A) In subsection (9), strict liability applies to the physical elements of circumstance, that: (a) the acquisition of the information by the first‑mentioned person was in the performance of functions or duties, or the exercise of powers, under this Code; and (b) the disclosure mentioned first in that subsection was made other than under subsection (3) or (7). > Note: For strict liability, see section 6.1 of the Criminal Code. (10) The powers conferred by subsection (7) are in addition to, and do not prejudice, the powers conferred by subsection (3). (11) A notice published under section 8H or 8J, paragraph 45A(1)(b) or section 47C must not contain any confidential commercial information about an active constituent for a proposed or existing chemical product or about a chemical product or any of its constituents. (12) This section does not preclude the institution of an action or other civil proceeding against a person in respect of the disclosure, or the proposed, threatened or likely disclosure, by that person of confidential commercial information about an active constituent for a proposed or existing chemical product, or about a chemical product or any of its constituents. (13) A reference in this section to information about an active constituent for a proposed or existing chemical product, or about a chemical product, includes a reference to the fact that: (a) an application has been made for approval of the constituent or registration of the product; or (b) an application has been made for a permit in respect of the constituent or product, if the making of the application is confidential commercial information. (13A) A reference in this section to information about: (a) an active constituent for a proposed or existing chemical product; or (b) a chemical product; or (c) any of the constituents of a chemical product; or (d) a label for containers for a chemical product; includes a reference to information about any substance or thing that was at any time such an active constituent, such a chemical product, such a constituent of a chemical product or such a label, as the case may be. (14) In this section: > court includes a tribunal, authority or person having power to require the production of documents or the answering of questions. > disclose, in relation to information, means give or communicate in any way.