92Secrecy

92 Secrecy (1) This section applies to— (a) every person who is or has been a commissioner, an officer of the commission, a member of a review committee or a member of a consultative committee; and (b) a person who is or has been— (i) a prescribed person or an assistant; or (ii) the auditor-general, or a person acting under the direction or authority of the auditor-general, in relation to a performance audit or special financial audit of the commission under the Auditor-General Act 1996. (2) A person to whom this section applies shall not, either directly or indirectly, except for this Act, the Auditor-General Act 1996 or an inquiry— (a) make a record of, or divulge or communicate to any person, any information concerning the affairs of another person acquired by the person to whom this section applies by reason of their office or employment under or for this Act or in the exercise of a function under this Act or in the course of an inquiry; or (b) produce to any person a document relating to the affairs of another person furnished for this Act or in the course of an inquiry. Maximum penalty: 50 penalty units, imprisonment for 6 months or both. (3) Subject to section 39B, a person to whom this section applies shall not be required to produce before a court any document relating to the affairs of another person of which the person to whom this section applies has the custody, or to which they have access, by virtue of their office or employment under or for this Act or in the exercise of a function under this Act, or to divulge or to communicate to any court any information concerning the affairs of another person obtained by the person to whom this section applies by reason of such an officer or employment or in the exercise of such a function. (4) Nothing in this section shall operate so as to prohibit a prescribed person from referring in a report furnished under part 12 (Inquiry relating to affairs of commission) to information acquired in the course of an inquiry if the reference does not reveal the identity of an applicant for legal assistance, a person to whom legal assistance is being or was provided or any other party or prospective party to litigation. (5) Subsection (3) does not apply if the court considers that it is necessary in the interests of justice that the document be produced or the information be divulged or communicated. (6) This section does not affect any law or any rule of practice or procedure relating to the discovery of documents in a proceeding in respect of which legal assistance is provided to a person under this Act. (7) In this section: assistant—see section 84A. court includes tribunal. inquiry—see section 84A. prescribed person—see section 84A. 92AA Exceptions to secrecy provisions (1) Sections 13 and 92 do not apply to the divulgence or communication of information, or the production of a document concerning the affairs of a person (a disclosure)— (a) for the purpose of facilitating the investigation or prosecution of an offence against this Act; or (b) with the express or implied consent of the person; or (c) in response to a subpoena under the ACT Civil and Administrative Tribunal Act 2008, section 41 (Powers in relation to witnesses etc) in relation to an application to the ACAT under the Legal Profession Act 2006. (2) Section 92 does not apply to the disclosure made to a Commonwealth entity if— (a) the disclosure is for the purpose of complying with a national agreement in relation to the provision of legal assistance services; and Example National Legal Assistance Partnership 2020-2025 (b) the disclosure is authorised, in writing, by the chief executive officer under the disclosure guidelines; and (c) the chief executive officer is satisfied that the Commonwealth entity to which the disclosure is made is required to apply the Australian privacy principles in relation to the disclosed material; and (d) for divulgence or communication of information—the disclosure relates only to information collected on or after 1 July 2021; and (e) for production of a document—the document was produced on or after 1 July 2021. (3) Section 92 does not apply to the disclosure made to an entity if— (a) the disclosure is for the purpose of conducting research in relation to improving access to justice or the provision of legal assistance services; and (b) the disclosure is authorised, in writing, by the chief executive officer under the disclosure guidelines; and (c) for the disclosure to a Commonwealth entity—the chief executive officer is satisfied that the Commonwealth entity is required to apply the Australian privacy principles in relation to the disclosed material; and (d) for divulgence or communication of information—the disclosure relates only to information collected on or after 1 July 2021; and (e) for production of a document—the document was produced on or after 1 July 2021. (4) The Minister may make guidelines about how the chief executive officer authorises the disclosure of information for this section. (5) A disclosure guideline is a disallowable instrument. (6) In this section: Australian privacy principles means the principles set out in the Privacy Act 1988 (Cwlth), schedule 1. Commonwealth entity— (a) includes a Commonwealth department; and (b) includes the Australian Bureau of Statistics; but (c) does not include an entity carrying out work for the Commonwealth under a contract. disclosure guidelines—see subsection (4).