34Secrecy

#### 34 Secrecy Offence—unauthorised disclosure of information acquired under this Act (1) Subject to subsection (1A), a person who is an IGIS official, or former IGIS official, must not, either directly or indirectly, except in the performance of his or her functions or duties or in the exercise of his or her powers under this Act or the Public Interest Disclosure Act 2013: (a) make a record of, or divulge or communicate to any person or to a court, any information or document acquired under this Act by reason of the person holding, or acting in, that office; or (b) make use of any such information or document. Penalty: Imprisonment for 2 years or 50 penalty units, or both. Offence—unauthorised disclosure of information acquired under the Freedom of Information Act 1982 (1AA) Subject to subsection (1A), a person who is an IGIS official, or former IGIS official, must not, either directly or indirectly, except in the performance of his or her functions or duties or in the exercise of his or her powers under Division 9 of Part VII or section 60A of the Freedom of Information Act 1982: (a) make a record of, or divulge or communicate to any person or to a court, any information or document acquired under that Division or section by reason of the person holding, or acting in, that office; or (b) make use of any such information or document. Penalty: Imprisonment for 2 years or 50 penalty units, or both. Offence—unauthorised disclosure of information acquired under the Archives Act 1983 (1AB) Subject to subsection (1A), a person who is an IGIS official, or former IGIS official, must not, either directly or indirectly, except in the performance of his or her functions or duties or in the exercise of his or her powers under section 50A of the Archives Act 1983: (a) make a record of, or divulge or communicate to any person or to a court, any information or document acquired under that section by reason of the person holding, or acting in, that office; or (b) make use of any such information or document. Penalty: Imprisonment for 2 years or 50 penalty units, or both. Exception (1A) Subsections (1), (1AA) and (1AB) do not apply if the Inspector‑General: (a) believed on reasonable grounds that the making of the record, or the divulging, communicating or use of the information or document (the conduct) by the person mentioned in the subsection is necessary for the purpose of preserving the well‑being or safety of another person; and (b) authorised the person mentioned in the subsection to engage in the conduct for that purpose. Dealing with offence as indictable or summary offence (2) An offence against subsection (1), (1AA) or (1AB) is an indictable offence. (3) Notwithstanding that an offence against subsection (1), (1AA) or (1AB) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is appropriate to do so and the defendant and the prosecutor consent. (4) If, in accordance with subsection (3), a court of summary jurisdiction convicts a person of an offence against subsection (1), (1AA) or (1AB), the penalty that the court may impose is imprisonment for a period not exceeding 12 months or a fine not exceeding 20 penalty units, or both. Limitation on disclosures to courts (5) A person who is an IGIS official, or former IGIS official, must not be required to: (a) produce in a court any document of which the person has custody, or to which the person has access, because the person is performing functions or duties or exercising powers under this Act, Division 9 of Part VII or section 60A of the Freedom of Information Act 1982 or section 50A of the Archives Act 1983; or (b) divulge or communicate to a court any information obtained by the person because the person is performing those functions or duties or exercising those powers; except if it is necessary to do so: (ba) if the person has custody of, or access to, the document because the person is performing functions or duties or exercising powers under this Act—for the purposes of this Act; and (bb) if the person has custody of, or access to, the document because the person is performing functions or duties or exercising powers under Division 9 of Part VII of the Freedom of Information Act 1982—for the purposes of that Division; and (bc) if the person has custody of, or access to, the document because the person is performing functions or duties or exercising powers under section 60A of the Freedom of Information Act 1982—for the purposes of that section; and (bd) if the person has custody of, or access to, the document because the person is performing functions or duties or exercising powers under section 50A of the Archives Act 1983—for the purposes of that section; and (c) if the information is obtained by the person because the person is performing functions or duties or exercising powers under this Act: (i) unless subparagraph (ii) applies—for the purposes of this Act; or (ii) if the information is obtained for the purposes of an investigation by the Inspector‑General under the Public Interest Disclosure Act 2013—for the purposes of that Act; and (ca) if the information is obtained by the person because the person is performing functions or duties or exercising powers under Division 9 of Part VII of the Freedom of Information Act 1982—for the purposes of that Division; and (d) if the information is obtained by the person because the person is performing functions or duties or exercising powers under section 60A of the Freedom of Information Act 1982—for the purposes of that section; and (e) if the information is obtained by the person because the person is performing functions or duties or exercising powers under section 50A of the Archives Act 1983—for the purposes of that section. Section generally to apply despite other laws (5A) This section applies despite any other provision of a law of the Commonwealth unless that provision manifests a clear intention to apply despite this section (for example, by explicitly authorising or requiring an IGIS official to use or disclose information). > Note: A requirement in a law of the Commonwealth that applies generally to an APS employee, and does not refer explicitly to an IGIS official, would not manifest a clear intention to apply despite this section. (5B) This section applies despite any provision of a law of a State or Territory. Definitions for this section (6) 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.