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Australian Border Force Bill 2015

Part 6 Secrecy and disclosure provisions

   

41   Simplified outline of this Part

•      An entrusted person must not make a record of or disclose protected information unless the making of the record or disclosure is authorised by a provision of this Part, is in the course of the person’s employment or service as an entrusted person or is required or authorised by law or by an order or direction of a court or tribunal.

42   Secrecy

             (1)  A person commits an offence if:

                     (a)  the person is, or has been, an entrusted person; and

                     (b)  the person makes a record of, or discloses, information; and

                     (c)  the information is protected information.

Penalty:  Imprisonment for 2 years.

Exception

             (2)  Subsection (1) does not apply if:

                     (a)  the making of the record or disclosure is authorised by section 43, 44, 45, 47, 48 or 49; or

                     (b)  the making of the record or disclosure is in the course of the person’s employment or service as an entrusted person; or

                     (c)  the making of the record or disclosure is required or authorised by or under a law of the Commonwealth, a State or a Territory; or

                     (d)  the making of the record or disclosure is required by an order or direction of a court or tribunal.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

Geographical jurisdiction

             (3)  Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1).

43   Records or disclosure for the purposes of this Act or the Law Enforcement Integrity Commissioner Act 2006

                   An entrusted person may make a record of, or disclose, protected information if:

                     (a)  the making of the record, or disclosure, is for the purposes of this Act or a legislative instrument under this Act; or

                     (b)  the making of the record, or disclosure, is for the purposes of the Law Enforcement Integrity Commissioner Act 2006 or regulations under that Act.

44   Disclosure to certain bodies and persons

Protected information that is not personal information

             (1)  An entrusted person authorised under subsection (3) may disclose protected information, or a class of protected information, that does not contain personal information, to a body or person mentioned in subsection (4) if:

                     (a)  the Secretary is satisfied that the information will enable or assist that body or person to perform or exercise any of the functions, duties or powers of that body or person; and

                     (b)  if, under subsection (6), that body or person is required to comply with a condition before the disclosure of the information—that body or person has complied with that condition.

Protected information that is personal information

             (2)  An entrusted person authorised under subsection (3) may disclose protected information, or a class of protected information, that contains personal information, to a body or person mentioned in subsection (4) for a purpose mentioned in section 46 if:

                     (a)  the Secretary is satisfied that the information will enable or assist that body or person to perform or exercise any of the functions, duties or powers of that body or person; and

                     (b)  the Secretary is satisfied that the disclosure of the information to that body or person is necessary for the purpose mentioned in section 46; and

                     (c)  if, under subsection (6), that body or person is required to comply with a condition before the disclosure of the information—that body or person has complied with that condition; and

                     (d)  in relation to a class of protected information—that body or person is prescribed in the rules and that class of information is prescribed in the rules as a class of information that may be disclosed to that body or person.

Authorisation

             (3)  The Secretary may, by writing, authorise an entrusted person for the purposes of subsections (1) and (2).

Bodies and persons

             (4)  For the purposes of subsections (1) and (2), the bodies and persons are the following:

                     (a)  a Department, agency or authority of the Commonwealth, a State or a Territory;

                     (b)  the Australian Federal Police;

                     (c)  a police force or police service of a State or Territory;

                     (d)  a coroner;

                     (e)  any other person who holds an office or appointment under a law of the Commonwealth, a State or a Territory;

                      (f)  any other body or person prescribed by the rules for the purposes of this paragraph.

             (5)  Paragraph (4)(f) does not apply in relation to a foreign country, an agency or authority of a foreign country or a public international organisation.

Conditions

             (6)  The Secretary may, by writing, impose conditions to be complied with by a body or person:

                     (a)  before protected information is disclosed to that body or person under subsection (1) or (2); or

                     (b)  in relation to protected information disclosed to that body or person under subsection (1) or (2).

Instruments are not legislative instruments

             (7)  An instrument under subsection (3) or (6) is not a legislative instrument.

45   Disclosure in accordance with agreements

Protected information that is not personal information

             (1)  An entrusted person authorised under subsection (3) may disclose protected information, or a class of protected information, that does not contain personal information, to a foreign country, an agency or authority of a foreign country or a public international organisation if:

                     (a)  the Secretary is satisfied that the information will be used in accordance with an agreement to which subsection (4) applies; and

                     (b)  that foreign country, agency, authority or organisation has undertaken not to use or further disclose the information except in accordance with the agreement or otherwise as required or authorised by law.

Protected information that is personal information

             (2)  An entrusted person authorised under subsection (3) may disclose protected information, or a class of protected information, that contains personal information, to a foreign country, an agency or authority of a foreign country or a public international organisation for a purpose mentioned in section 46 if:

                     (a)  the Secretary is satisfied that the information will be used in accordance with an agreement to which subsection (4) applies; and

                     (b)  the Secretary is satisfied that the disclosure of that information to that foreign country, agency, authority or organisation is necessary for the purpose mentioned in section 46; and

                     (c)  that foreign country, agency, authority or organisation has undertaken not to use or further disclose the information except in accordance with the agreement or otherwise as required or authorised by law; and

                     (d)  in relation to a class of protected information—that foreign country, agency, authority or organisation is prescribed in the rules and that class of information is prescribed in the rules as a class of information that may be disclosed to that foreign country, agency, authority or organisation.

Authorisation

             (3)  The Secretary may, by writing, authorise an entrusted person for the purposes of subsections (1) and (2).

Agreements

             (4)  This subsection applies to an agreement that is in force between:

                     (a)  the Commonwealth or an agency or authority of the Commonwealth; and

                     (b)  one or more of the following:

                              (i)  a foreign country;

                             (ii)  an agency or authority of a foreign country;

                            (iii)  a public international organisation.

Conditions

             (5)  The Secretary may, by writing, impose conditions to be complied with by a foreign country, an agency or authority of a foreign country or a public international organisation in relation to protected information disclosed to it under subsection (1) or (2).

Instruments are not legislative instruments

             (6)  An instrument under subsection (3) or (5) is not a legislative instrument.

46   Permitted purposes

                   For the purposes of sections 44 and 45, the purposes are the following:

                     (a)  the administration or enforcement of a law of the Commonwealth, a State, a Territory or a foreign country that relates to:

                              (i)  criminal law; or

                             (ii)  a law imposing a pecuniary penalty or providing for the forfeiture of property;

                     (b)  in relation to a law referred to in paragraph (a), the prevention of crime, or the detection or analysis of criminal conduct, in respect of that law;

                     (c)  assisting a coronial inquiry, coronial investigation or coronial inquest under a law of the Commonwealth, a State or a Territory;

                     (d)  a purpose relating to the protection of public health, or the prevention or elimination of risks to the life or safety of an individual or a group of individuals;

                     (e)  the collection and verification of statistics for the purposes of the Census and Statistics Act 1905 or the performance of the functions of the Australian Bureau of Statistics as set out in section 6 of the Australian Bureau of Statistics Act 1975 ;

                      (f)  the protection of the public revenue of the Commonwealth, a State, a Territory or a foreign country;

                     (g)  a purpose relating to matters covered by the Customs Act 1901 , the Migration Act 1958 , the Maritime Powers Act 2013 , the Australian Citizenship Act 2007 , the Immigration (Guardianship of Children) Act 1946 or the Education Services for Overseas Students Act 2000 ;

                     (h)  any of the following:

                              (i)  assisting in establishing the identity of a particular person;

                             (ii)  establishing whether or not a particular person is or was an Australian citizen at a particular time or in a particular period;

                            (iii)  establishing whether or not a particular person is or was the holder of a particular kind or class of visa under the Migration Act 1958 at a particular time or in a particular period;

                      (i)  a purpose relating to immigration, quarantine or border control between Australia and a foreign country;

                      (j)  the provision of services to persons who are not Australian citizens;

                     (k)  a purpose relating to the performance of functions under section 17 of the Australian Security Intelligence Organisation Act 1979 ;

                      (l)  a purpose relating to the performance of functions under section 6 of the Intelligence Services Act 2001 ;

                    (m)  the administration of the National Anti-Doping Scheme (within the meaning of the Australian Sports Anti-Doping Authority Act 2006 );

                     (n)  the administration or enforcement of laws with respect to commerce:

                              (i)  between a State and another State; or

                             (ii)  between a State and a Territory; or

                            (iii)  between a Territory and another Territory; or

                            (iv)  between Australia and another country; or

                             (v)  within a State or Territory;

                     (o)  a purpose prescribed by the rules.

47   Disclosure with consent

                   An entrusted person may disclose protected information that relates to the affairs of a person or body if:

                     (a)  the person or body has consented to the disclosure; and

                     (b)  the disclosure is in accordance with that consent.

48   Disclosure to reduce threat to life or health

                   An entrusted person may disclose protected information if:

                     (a)  the entrusted person reasonably believes that the disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual; and

                     (b)  the disclosure is for the purposes of preventing or lessening that threat.

49   Disclosure of publicly available information

                   An entrusted person may disclose protected information if it has already been lawfully made available to the public.

50   Exceptions operate independently

                   Sections 43, 44, 45, 47, 48 and 49 do not limit each other.

51   Interaction with Privacy Act

                   For the purposes of the Privacy Act 1988 :

                     (a)  the making of a record, in accordance with section 43, of protected information, to the extent that the protected information contains personal information, is taken to be a use that is authorised by this Act; and

                     (b)  the disclosure, in accordance with section 43, 44, 45, 47, 48 or 49, of protected information, to the extent that the protected information contains personal information, is taken to be a disclosure that is authorised by this Act.