(3) The Registrar may substitute a decision for a decision (the initial decision) the making of which is assisted by the operation of such a process under an arrangement under subsection (1) if the Registrar is satisfied that the initial decision is incorrect.
212G Liability for damages
None of the following:
(a) the Minister;
(b) the Registrar;
(c) if the Registrar is a Commonwealth body that has members—a member of the Registrar;
(d) a member of the staff of the Registrar;
(e) a person who is, or is a member of or a member of the staff of, a delegate of the Registrar;
(f) a person who is authorised to perform or exercise a function or power of, or on behalf of, the Registrar;
(g) an APS employee, or an officer or employee of a Commonwealth body, whose services are made available to the Registrar in connection with the performance or exercise of any of the Registrar’s functions or powers;
is liable to an action or other proceeding for damages for or in relation to an act done, or omitted to be done, in good faith in performance or purported performance of any function, or in exercise or purported exercise of any power, conferred or expressed to be conferred by or under this Part.
Subdivision B—How the Registrar is to perform and exercise functions and powers
212H Data standards
(1) The Registrar may, by legislative instrument, make data standards on matters relating to the performance of the Registrar’s functions and the exercise of the Registrar’s powers under this Act.
(2) Without limiting subsection (1), the data standards may provide for any of the following:
(a) what information may be collected for the purposes of the performance of the Registrar’s functions and the exercise of the Registrar’s powers under this Act;
(b) how such information may be collected;
(c) the manner and form in which such information is given to the Registrar;
(d) when information is to be given to the Registrar;
(e) how information held by the Registrar is to be authenticated, verified or validated;
(f) how information held by the Registrar is to be stored;
(g) correction of information held by the Registrar;
(h) the manner and form of communication between the Registrar and persons who give information to the Registrar or seek to access information held by the Registrar;
(i) integrating or linking information held by the Registrar.
(3) Without limiting subsection (1), the data standards may provide differently in relation to different functions or powers of the Registrar.
(a) a Commonwealth body (the new Registrar) is appointed as the Registrar with particular functions or powers under this Act; and
(b) immediately before that appointment, another Commonwealth body was the Registrar with those functions or powers; and
(c) the new Registrar does not have data standards that would apply to those functions or powers;
any data standards applying to those functions or powers immediately before that appointment continue to apply until the new Registrar makes data standards that apply to those functions or powers, or amends its existing data standards to apply to those functions or powers.
212J Giving information to the Registrar
(1) Without limiting section 212H, the data standards may provide that information is to be given to the Registrar in electronic form, or any other specified form.
(2) A requirement under this Act that information is to be provided to the Registrar in a particular form or manner (however described), including a requirement:
(a) that the information is to be “lodged” or “furnished”; and
(b) that the information is to be “written” or “in writing”; and
(c) that a “copy” of a document containing the information is to be provided;
is not taken to restrict by implication what the data standards may provide under subsection (1) in relation to that information.
212K How the Registrar is to perform and exercise functions and powers
(1) The Registrar must perform its functions and exercise its powers under this Act in accordance with:
(a) the data standards; or
(b) if there are no data standards that apply to particular functions or powers—any requirement relating to those functions or powers as in force immediately before those functions or powers became functions or powers of the Registrar.
(2) This section does not affect the application to the Registrar of any other law of the Commonwealth.
Subdivision C—Disclosure of information
212L Disclosure framework
(1) The Registrar may, by legislative instrument, make a disclosure framework relating to disclosing protected information.
(2) Without limiting subsection (1), the disclosure framework may provide for any of the following:
(a) circumstances in which information must not be disclosed without the consent of the person to whom it relates;
(b) circumstances in which de‑identified information may be disclosed;
(c) circumstances in which information may be disclosed to the general public;
(d) circumstances in which confidentiality agreements are required for the disclosure of information;
(e) imposing conditions on disclosure of information.
(3) Without limiting subsection (1), the disclosure framework may provide differently in relation to different functions or powers of the Registrar under this Act.
(4) A person commits an offence if:
(a) the person is a party to a confidentiality agreement of a kind mentioned in paragraph (2)(d); and
(b) the person fails to comply with the confidentiality agreement.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
(5) The disclosure framework must not provide for disclosure of protected information unless the Registrar is satisfied that the benefits of the disclosure would outweigh the risks of the disclosure (taking into account any mitigation of those risks in accordance with the disclosure framework).
(6) However, subsection (5) does not apply to the extent that the disclosure framework deals with a matter in accordance with a direction under section 212D.
(7) If:
(a) a Commonwealth body (the new Registrar) is appointed as the Registrar with particular functions or powers under this Act; and
(b) immediately before that appointment, another Commonwealth body was the Registrar with those functions or powers; and
(c) the new Registrar does not have a disclosure framework that would apply to those functions or powers;
the disclosure framework applying to those functions or powers immediately before that appointment continues to apply until the new Registrar makes a disclosure framework that applies to those functions or powers, or amends its existing disclosure framework to apply to those functions or powers.
212M Protection of confidentiality of protected information
(1) A person (the first person) commits an offence if:
(a) the first person is, or has been, in official employment; and
(b) the first person makes a record of information, or discloses information to another person; and
(c) the information is protected information that was obtained by the first person in the course of the first person’s official employment.
Penalty: Imprisonment for 2 years.
(2) However, subsection (1) does not apply if the recording or disclosure is authorised by subsection (3).
(3) The recording or disclosure is authorised by this subsection if:
(a) the recording or disclosure is for the purposes of this Part; or
(b) the recording or disclosure happens in the course of the performance of the duties of the first person’s official employment; or
(c) in the case of a disclosure—the disclosure is to another person for use, in the course of the performance of the duties of the other person’s official employment, in relation to the performance or exercise of the functions or powers of a government entity; or
(d) in the case of a disclosure to another person who is an employee of a State, a Territory or an authority of a State or Territory—the disclosure:
(i) is to the other person for use, in the course of the performance of the duties of that employment, in relation to the performance or exercise of the functions or powers of a government entity; and
(ii) is in accordance with an agreement, about regulating the provision of credit, between the Commonwealth, the States, the Australian Capital Territory and the Northern Territory; or
(e) in the case of a disclosure—each person to whom the information relates consents to the disclosure; or
(f) in the case of a disclosure—the disclosure is in accordance with the disclosure framework.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3): see subsection 13.3(3) of the Criminal Code.
212N Authorisation of recording or disclosure
(1) A person is not liable to any proceedings for contravening a secrecy provision in respect of a recording or disclosure authorised under subsection 212M(3), unless the secrecy provision is a designated secrecy provision.
(2) A secrecy provision is a provision that:
(a) is a provision of a law of the Commonwealth (other than this Act); and
(b) prohibits or regulates the use or disclosure of information.
(3) A designated secrecy provision is any of the following:
(a) sections 18 to 18B, 92 and 92A of the Australian Security Intelligence Organisation Act 1979;
(b) section 34 of the Inspector‑General of Intelligence and Security Act 1986;
(c) sections 39 to 41 of the Intelligence Services Act 2001;
(d) section 8WB of the Taxation Administration Act 1953;
(e) a provision of a law of the Commonwealth prescribed by rules made for the purposes of this paragraph under section 212U;
(f) a provision of a law of the Commonwealth of a kind prescribed by rules made for the purposes of this paragraph under section 212U.
212P Preventing disclosure of particular protected information
(1) If:
(a) a person applies to the Registrar for particular protected information relating to the person not to be disclosed; and
(b) the Registrar is satisfied that it is not appropriate to disclose that information;
a disclosure of that information is taken, for the purposes of this Act, not to be in accordance with the disclosure framework.
(2) Without limiting section 212L, the disclosure framework may provide for:
(a) how applications referred to in paragraph (1)(a) are to be made; and
(b) how those applications are to be decided.
212Q Authorisation for purposes of Privacy Act
A disclosure of personal information (within the meaning of the Privacy Act 1988) is taken to be authorised by law for the purposes of paragraph 6.2(b) of Schedule 1 to that Act if:
(a) the information is protected information; and
(b) the disclosure is authorised by subsection 212M(3) of this Act.
212R Disclosure to a court
A person is not to be required:
(a) to produce to a court any document that:
(i) contains protected information; and
(ii) was made or given under, or for the purposes of, this Act; and
(iii) was obtained by the person in the course of the person’s official employment; or
(b) to disclose to a court any protected information that the person obtained in the course of the person’s official employment;
unless the production or disclosure is necessary for the purpose of giving effect to a taxation law or an Australian business law.
Subdivision D—Miscellaneous
212S Extracts of information to be admissible in evidence
(1) In any proceedings, a document, or a copy of a document, that purports (irrespective of the form of wording used) to be an extract of information held by the Registrar under, or for the purposes of, this Act:
(a) is proof, in the absence of evidence to the contrary, of information that is stated in it and that purports to be held by the Registrar; and
(b) is admissible without any further proof of, or the production of, the original;
if it does not appear to the Court to have been revised or tampered with in a way that affects, or is likely to affect, the information.
(2) The Registrar may give a person a certified copy of, or extract from, the information held by the Registrar under, or for the purposes of, this Act on payment of the fee (if any) prescribed by rules made under section 212U.
(3) In any proceedings, the certified copy:
(a) is prima facie evidence of information that is stated in it and that purports to be held by the Registrar under, or for the purposes of, this Act; and
(b) is admissible without any further proof of, or the production of, the original.
(4) This section does not limit the manner in which evidence may be adduced, or the admissibility of evidence, under the Evidence Act 1995.
212T Annual report
Each annual report by the Registrar for a period must include information about the performance of the Registrar’s functions and exercise of the Registrar’s powers under, or for the purposes of, this Act during that period.
212U Rules
(1) The Minister may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Part to be prescribed by rules made under this section; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.
(2) To avoid doubt, rules made under this section may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
Division 2—Registers relating to credit activities
213 Credit registers
ASIC must establish and maintain credit registers
(1) ASIC must establish and maintain one or more registers (the credit registers) relating to credit activities.
How credit registers are to be maintained
(2) The regulations may prescribe the way in which the credit registers must be established or maintained, including the details that ASIC must enter in the credit registers in relation to the following persons:
(a) licensees;
(b) persons registered to engage in credit activities under the Transitional Act;
(c) credit representatives of licensees or persons registered to engage in credit activities under the Transitional Act;
(d) persons against whom a banning order or disqualification order is made under Part 2‑4;
(e) persons who are banned from engaging in a credit activity under a law of a State or Territory;
(f) any other persons prescribed by the regulations.
(3) Without limiting subsection (2), the credit registers:
(a) may be maintained in an electronic form; and
(b) may be maintained as part of, or together with, any register in relation to financial services maintained under section 922A of the Corporations Act 2001.
Credit register is not a legislative instrument
(4) A credit register established under this section is not a legislative instrument.
214 Inspection and public availability of credit registers
(1) A person may inspect the credit registers and may make copies of, or take extracts from, them.
(2) ASIC may make the credit registers, or any part of them, available to the public on its website or by other means.
(3) Any disclosure necessary for the purposes of this section is authorised by this section.
Part 5‑2—Documents lodged with ASIC or required by this Act
Division 1—Introduction
215 Guide to this Part
This Part deals with the lodging of documents with ASIC. It also has offences relating to making false statements in documents.
Division 2 deals with how documents are lodged with ASIC and the approved forms in which the documents must be lodged. It also deals with ASIC’s power to refuse to receive documents (in which case, the documents will not be treated as having been lodged with ASIC).
Division 3 deals with ASIC’s register of documents that have been lodged with ASIC.
Division 4 has other provisions relating to documents (such as offences for making false statements in documents lodged with ASIC or required for the purposes of this Act).
Division 2—Lodgment of documents with ASIC
216 When documents are lodged with ASIC
(1) A document is lodged with ASIC under this Act if the document:
(a) is transmitted to ASIC in an electronic format approved by ASIC; or
(b) if ASIC approves another manner for the lodgment of a document with ASIC—is given to ASIC in that manner.
(2) However, a document is not lodged with ASIC under this Act if ASIC refuses to receive the document under subsection 218(1).
Note: Subsection 232(3) provides for when a compliance certificate under section 53 is taken not to be lodged with ASIC.
(3) If a document is lodged with ASIC, then any other material that is lodged with the document as required by this Act or an approved form is taken to be included in that document.
Note: For example, this subsection means that a person will contravene section 225 if the person makes a false or misleading statement in the other material.
217 Approved forms for documents to be lodged with ASIC
(1) A document that this Act requires to be lodged with ASIC in an approved form must, if ASIC has approved a form for the document:
(a) be in the approved form; and
(b) include the information, statements, explanations or other matters required by the form; and
(c) be accompanied by any other material required by the form.
(2) If:
(a) this Act requires a document to be lodged with ASIC in an approved form; and
(b) a provision of this Act either specifies, or provides for regulations to prescribe, information, statements, explanations or other matters that must be included in the document, or other material that must accompany the document;
that other provision is not taken to exclude or limit the operation of subsection (1) in relation to the approved form (and so the approved form may also require information etc. to be included in the form or material to accompany the form).