78Secrecy

#### 78 Secrecy (1) In this section: > Commissioner includes a Second Commissioner of Taxation and a Deputy Commissioner of Taxation. > officer means a person: (a) who is or has been appointed or employed by the Commonwealth and who, because of the appointment or employment or in the course of the performance of the duties of the appointment or in the course of the employment, may acquire or has acquired confidential information; (b) to whom powers or functions have been delegated by the Commissioner and who, because of, or in the course of the exercise of powers or the performance of functions under, the delegation, may acquire or has acquired confidential information; or (c) who is or has been an officer of, or employed by, an institution and who, because of the office or employment or in the course of the performance of the duties of the office or in the course of the employment, may acquire or has acquired confidential information. (2) A reference in this section to the acquisition by a person of confidential information is a reference to the acquisition of information in relation to the affairs of another person disclosed or obtained under or for the purposes of this Chapter. (3) For the purposes of this section, a person who, although not appointed or employed by the Commonwealth, performs services for the Commonwealth shall be taken to be employed by the Commonwealth. (4) An officer who, either directly or indirectly, and either while the person is, or after the person ceases to be, an officer: (a) makes a record of any information in relation to the affairs of a second person; or (b) divulges or communicates to a second person any information in relation to the affairs of a third person; being information disclosed or obtained under or for the purposes of this Chapter and acquired by the person: (c) because of the person’s appointment or employment by the Commonwealth or in the course of such employment; (d) because of the delegation to the person of powers or functions by the Commissioner or in the course of the exercise of such powers or performance of such functions; or (e) because of the person’s office in or employment by an institution or in the course of the performance of the duties of such an office or in the course of such employment; as the case may be, is guilty of an offence punishable on conviction by a fine not exceeding $10,000 or imprisonment for a period not exceeding 2 years, or both. (4A) Subsection (4) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, for the purposes of this Chapter or in the performance of the person’s duties as an officer. > Note: A defendant bears an evidential burden in relation to the matters in subsection (4A), see subsection 13.3(3) of the Criminal Code. (4B) For the purposes of an offence against subsection (4), strict liability applies to the physical element of circumstance, that the information was disclosed or obtained under or for the purposes of this Chapter. > Note: For strict liability, see section 6.1 of the Criminal Code. (5) Except when it is necessary to do so for the purpose of carrying into effect the provisions of this Chapter, an officer shall not be required: (a) to produce in court any document made or given under or for the purposes of this Chapter; or (b) to divulge or communicate to a court a matter or thing in relation to information disclosed or obtained under or for the purposes of this Chapter; being a document or information acquired by the person: (c) because of the person’s appointment or employment by the Commonwealth or in the course of such employment; (d) because of the delegation to the person of powers or functions by the Commissioner or in the course of the exercise of such powers or the performance of such functions; or (e) because of the person’s office in or employment by an institution or in the course of the performance of the duties of such an office or in the course of such employment; as the case may be. (6) Nothing in subsection (4) shall be taken to prohibit the Commissioner, or a person authorised by the Commissioner, from communicating any information to the Administrative Review Tribunal in connection with proceedings under this Act or any Act of which the Commissioner of Taxation has the general administration. (7) Nothing in an Act of which the Commissioner of Taxation has the general administration shall be taken to prohibit the Commissioner, or a person authorised by the Commissioner, from communicating any information to a person performing, as an officer, duties arising under this Chapter for the purpose of enabling the person to perform those duties. (8) Nothing in subsection (4) shall be taken to prohibit a person referred to in paragraph (a) or (b) of the definition of officer in subsection (1) from communicating any information to an officer of the Department for the purpose of the provision by that officer of assistance to the person in the performance of duties arising under this Chapter. (9) For the purposes of subsection (4), an officer shall be taken to have communicated information to another person in contravention of that subsection if the officer communicates the information to any Minister. (10) An officer shall, if and when required by the Commissioner to do so, make an oath or declaration, in a manner and form specified by the Commissioner in writing, to maintain secrecy in accordance with the provisions of this section.