43Secrecy

##### 43 Secrecy (1) A prescribed person shall not, either directly or indirectly: (a) make a record of, or divulge or communicate to any person, information acquired in or in connection with the performance of his or her duties or functions, or the exercise of his or her powers, under or in connection with this Act, being information in relation to which subsection (3) applies in relation to the prescribed person; or (b) produce to any person a document supplied to, lodged with or otherwise acquired by the Commission for the purposes of this Act, except a document made available to the public by the Commission under this Act. Penalty: 10 penalty units. > Note 1: The penalty is a maximum penalty (see section 4D of the Crimes Act 1914). If a body corporate is convicted of the offence, a court may impose a fine not more than 5 times the maximum fine that the court could impose (see subsection 4B(3) of the Crimes Act 1914). Penalty units are defined in section 4AA of the Crimes Act 1914. > Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (1A) Subsection (1) does not apply in relation to anything done by a person in or in connection with the performance of a duty or function under or in connection with this Act or the Trade Practices Act 1974. > Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code). (2) Except where it is necessary to do so for the purposes of this Act or the Trade Practices Act 1974: (a) a prescribed person shall not be required to divulge or communicate to a court any information in relation to which subsection (3) applies in relation to the prescribed person; and (b) a person shall not be required to produce in a court a document in relation to which paragraph (1)(b) applies. (3) This subsection applies in relation to information in relation to a prescribed person if, and only if: (a) the information was disclosed to the prescribed person by a person, or was obtained by the prescribed person from a person, for the purposes of this Act or as permitted by section 51; or (b) the information was divulged or communicated to the prescribed person by another prescribed person and this subsection applies in relation to the information in relation to the other prescribed person; and the information has not been made available to the public by the Commission pursuant to a provision of this Act and is not information contained in oral evidence given in public at the hearing of an inquiry. (4) In this section: > court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. > prescribed person means a person who: (a) is or has been: (i) a member or associate member; or (ii) a member of the staff of the Commission; or (iii) an officer or employee as defined in subsection 7(1) of the Public Service Act 1922; or (iv) appointed or engaged under the Public Service Act 1999; or (b) has been a member or associate member of the Prices Surveillance Authority that ceased to exist on the commencement of Part 3 of the Competition Policy Reform Act 1995, or an associate member of that Authority; or (c) has been engaged by that Authority under subsection 42(1) of this Act, as in force at any time before the commencement of section 77 of the Competition Policy Reform Act 1995. > produce includes permit access to.