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Part 4—Obtaining and handling scheme information

Part 4 Obtaining and handling scheme information

Division 1 Simplified outline of this Part

41   Simplified outline of this Part

The Secretary must keep a register of information obtained under the scheme.

The Secretary has the power to obtain information from any person if the Secretary reasonably believes the person has information relevant to the scheme.

Some scheme information will be made publicly available (mainly, the names of registrants and foreign principals and descriptions of the registrable activities being undertaken).

Other scheme information must be handled in accordance with the Privacy Act 1988 , Part 5.6 of the Criminal Code (secrecy of information) and the authorisations set out in Division 4.

Division 2 Register of scheme information

42   Secretary must keep a register

             (1)  The Secretary must keep a register of information in relation to the scheme.

             (2)  The Secretary must include on the register the following information and documents for each person who is registered in relation to a foreign principal:

                     (a)  the name of the person and the foreign principal;

                     (b)  the application for the registration and any accompanying information or documents;

                     (c)  any notices given by the person in accordance with Division 2 of Part 3 (reporting to the Secretary) and any accompanying information or documents;

                     (d)  any renewal of the registration and any accompanying information or documents;

                     (e)  a record of any other communications between the person and the Secretary;

                      (f)  any information prescribed by the rules for the purposes of paragraph 43(1)(c) in relation to registrants and not mentioned in another paragraph of this subsection;

                     (g)  any other information or documents the Secretary considers appropriate.

             (3)  The Secretary must also include the following information and documents on the register:

                     (a)  any notices given by the Secretary to a person other than a registrant under:

                              (i)  section 45 (notice requiring information to satisfy Secretary whether person is liable to register under the scheme); or

                             (ii)  section 46 (notice requiring information relevant to scheme);

                            and any responses received;

                     (b)  any information prescribed by the rules for the purposes of paragraph 43(1)(c) (other than in relation to registrants) and not mentioned in another paragraph of this subsection;

                     (c)  any other information or documents the Secretary considers appropriate.

43   Certain information to be made publicly available

             (1)  The Secretary must make available to the public, on a website, the following information in relation to each person registered in relation to a foreign principal:

                     (a)  the name of the person and the foreign principal;

                     (b)  a description of the kind of registrable activities the person undertakes on behalf of the foreign principal;

                     (c)  any other information prescribed by the rules for the purposes of this paragraph.

             (2)  Despite subsection (1), the Secretary may decide not to make particular information available to the public if the Secretary is satisfied that the information:

                     (a)  is commercially sensitive; or

                     (b)  affects national security; or

                     (c)  is of a kind prescribed by the rules for the purposes of this subsection.

Note:          A registrant who considers that information is commercially sensitive can specify this when giving the information.

             (3)  The rules may prescribe circumstances in which the Secretary is to remove publicly available information from the website.

44   Secretary may correct or update information in the register

                   The Secretary may correct or update information in the register.

Division 3 Secretary’s powers to obtain information and documents

45   Notice requiring information to satisfy Secretary whether person is liable to register under the scheme

             (1)  This section applies if:

                     (a)  the Secretary reasonably suspects that a person might be liable to register under the scheme in relation to the foreign principal; and

                     (b)  the person is not registered under the scheme in relation to that foreign principal.

             (2)  The Secretary may, by written notice given to the person, require the person:

                     (a)  to give to the Secretary, within the period and in the manner and form specified in the notice, any information that may satisfy the Secretary as to whether the person is liable to register in relation to the foreign principal; or

                     (b)  to produce to the Secretary, within the period and in the manner and form specified in the notice, any documents that may satisfy the Secretary as to whether the person is liable to register in relation to the foreign principal; or

                     (c)  to make copies of any such documents and to produce to the Secretary, within the period and in the manner specified in the notice, those copies.

Note:          It is an offence not to comply with the notice (see section 59).

             (3)  The period specified in the notice must be a period of at least 14 days after the notice is given.

             (4)  The Secretary may, on request by the person, extend the period by written notice given to the person.

             (5)  Before giving a person a notice under subsection (2), the Secretary must have regard to the costs, in complying with any requirement in the notice, that would be likely to be incurred by the person.

             (6)  Subsection (5) does not limit the matters to which regard may be had.

             (7)  The notice must set out the effect of section 60 of this Act and sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents).

46   Notice requiring information relevant to scheme

             (1)  This section applies if the Secretary reasonably believes that a person (whether or not a registrant) has information or a document that is relevant to the operation of the scheme.

             (2)  The Secretary may, by written notice given to the person, require the person:

                     (a)  to give to the Secretary, within the period and in the manner and form specified in the notice, any such information; or

                     (b)  to produce to the Secretary, within the period and in the manner specified in the notice, any such documents; or

                     (c)  to make copies of any such documents and to produce to the Secretary, within the period and in the manner specified in the notice, those copies.

Note:          It is an offence not to comply with the notice (see section 59).

             (3)  The period specified in the notice must be a period of at least 14 days after the notice is given.

             (4)  The Secretary may, on request by the person, extend the period by written notice given to the person.

             (5)  Before giving a person a notice under subsection (2), the Secretary must have regard to the costs, in complying with any requirement in the notice, that would be likely to be incurred by the person.

             (6)  Subsection (5) does not limit the matters to which regard may be had.

             (7)  The notice must set out the effect of section 60 of this Act and sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents).

47   Self-incrimination

             (1)  A person is not excused from giving information or producing a document or a copy of a document under section 45 or 46 on the ground that the information or the production of the document or copy might tend to incriminate the person or expose the person to a penalty.

             (2)  However, in the case of an individual:

                     (a)  the information given or the document or copy produced; and

                     (b)  giving the information or producing the document or copy; and

                     (c)  any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or copy;

is not admissible in evidence against the individual in criminal proceedings, other than proceedings for an offence against section 60 of this Act, or section 137.1 or 137.2 of the Criminal Code that relates to this Division (false or misleading information or documents), or in civil proceedings.

48   Copies of documents

             (1)  The Secretary may inspect a document or copy produced in compliance with a notice given under section 45 or 46 and may make and retain copies of such a document.

             (2)  The Secretary may retain possession of a copy of a document produced in compliance with a notice given under section 45 or 46.

49   Retention of documents

             (1)  The Secretary may take, and retain for as long as is necessary, possession of a document produced in compliance with a notice given under section 45 or 46.

             (2)  The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Secretary to be a true copy.

             (3)  A certified copy:

                     (a)  may be used by the Secretary if the Secretary returns possession of the original document to the person otherwise entitled to possession of it; and

                     (b)  in any case—must be received in all courts and tribunals as evidence as if it were the original.

             (4)  Until a certified copy is supplied, the Secretary must, at such times and places as he or she thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of the document.

Division 4 Communicating and dealing with scheme information

50   Scheme information

                   Information is scheme information if the information:

                     (a)  is obtained by a scheme official in the course of performing functions or exercising powers under the scheme; or

                     (b)  was information to which paragraph (a) applied and is obtained by a person by way of a communication authorised under this Division.

51   Scheme officials

Definition

             (1)  Each of the following is a scheme official :

                     (a)  the Secretary;

                     (b)  an APS employee in the Department:

                              (i)  to whom a function or power is delegated under section 67; or

                             (ii)  whose functions otherwise include functions in relation to the scheme;

                     (c)  any other person who performs functions in relation to the scheme under an agreement with the Commonwealth.

Evidentiary certificate

             (2)  The Minister may sign a certificate stating that a specified person is, or was at a specified time, a scheme official.

             (3)  For the purposes of proceedings for an offence against this Act, or against Part 7.4 of the Criminal Code (false or misleading statements) in relation to this Act, a certificate signed by the Minister under this section is prima facie evidence of the matters certified in it.

52   Authorisation—purposes of scheme

                   A scheme official may communicate or otherwise deal with scheme information:

                     (a)  for the purposes of performing functions or exercising powers under the scheme; or

                     (b)  otherwise in the course of performing the scheme official’s functions in relation to the scheme.

53   Authorisation—other purposes

             (1)  The Secretary may communicate scheme information, for a purpose specified in an item in column 1 of the table, to a person specified for that purpose in column 2 of the table.

 

Authorisation for Secretary to communicate scheme information

Item

Column 1

Communication for this purpose:

Column 2

May be made to:

1

an enforcement related activity of an enforcement body within the meaning of the Privacy Act 1988

the enforcement body

2

the protection of public revenue

any of the following that has functions in relation to the purpose:

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

(b) an Australian police force

3

the protection of security within the meaning of the Australian Security Intelligence Organisation Act 1979

any of the following that has functions in relation to the purpose:

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

(b) an Australian police force

4

a purpose prescribed by the rules

a person prescribed by the rules

             (2)  The Minister must consult the Information Commissioner before making rules for the purposes of item 4 of the table in subsection (1).

54   Authorisation—secondary communication of or dealing with information

                   A person may communicate or otherwise deal with scheme information if:

                     (a)  the person obtains the information in the person’s capacity as a person, or as an employee or official of a person, to whom information is communicated under this Division (including this section); and

                     (b)  the person communicates or otherwise deals with the information for the purposes for which the information was obtained by the person to whom it was communicated.

55   Authorisation—information publicly available

                   A person may communicate or otherwise deal with scheme information if the information has already been communicated or made available to the public with the authority of the Commonwealth (including under section 43 (certain information to be made publicly available) or 69 (annual report)).