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Part 9—Other matters

Part 9 Other matters

   

69   Delegation

Delegation by the Commission

             (1)  The Commission may, in writing, delegate all or any of its functions or powers under this Act to:

                     (a)  the Commissioner or another member of the Commission; or

                     (b)  a member of the staff of the Commission; or

                     (c)  any other person or body of persons.

Note:          Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

Delegation by the Commissioner

             (2)  The Commissioner may, in writing, delegate all or any of the Commissioner’s functions or powers under this Act to:

                     (a)  a member of the staff of the Commission approved by the Commission; or

                     (b)  any other person or body of persons approved by the Commission.

Note:          Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

Delegate must comply with directions of delegator

             (3)  In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the delegator.

70   Liability of persons involved in unlawful conduct

             (1)  A person must not do any of the following in relation to conduct that is unlawful under Part 4:

                     (a)  attempt to engage in that conduct;

                     (b)  aid, abet, counsel or procure that conduct;

                     (c)  induce (by threats, promises or otherwise) that conduct;

                     (d)  be in any way, directly or indirectly, knowingly concerned in, or party to, that conduct;

                     (e)  conspire with others to engage in, or effect, that conduct.

             (2)  A person who contravenes subsection (1) in relation to conduct that is unlawful under Part 4 is taken, for the purposes of this Act, to have engaged in the conduct.

71   Conduct by representatives

             (1)  Any conduct engaged in on behalf of a person by a representative of the person within the scope of actual or apparent authority is taken to have been engaged in also by the person, unless the person establishes that the person took reasonable precautions and exercised due diligence to avoid the conduct.

             (2)  If it is necessary to establish the state of mind of a person in relation to particular conduct, it is sufficient to show:

                     (a)  that the conduct was engaged in by a representative of the person within the scope of actual or apparent authority; and

                     (b)  that the representative had that state of mind.

             (3)  A reference in subsection (2) to the state of mind of a representative of a person includes a reference to:

                     (a)  the representative’s knowledge, intention, opinion, belief or purpose; and

                     (b)  the representative’s reasons for the intention, opinion, belief or purpose.

             (4)  In this section:

representative of a person means:

                     (a)  if the person is a body corporate—a director, employee or agent of the body corporate; or

                     (b)  if the person is a body politic—an employee or agent of the body politic; or

                     (c)  if the person is an individual—an employee or agent of the individual.

             (5)  This section does not apply to proceedings for an offence against Part 5.

72   Protection from civil actions

             (1)  Subsection (2) applies to:

                     (a)  the Commission; and

                     (b)  the Commissioner or another member of the Commission; and

                     (c)  a person acting for or on behalf of:

                              (i)  the Commission; or

                             (ii)  the Commissioner or another member of the Commission.

             (2)  A person mentioned in subsection (1) is not liable to an action or other proceeding for damages for or in relation to conduct engaged in in good faith:

                     (a)  in the performance, or purported performance, of any function conferred on the Commission by this Act; or

                     (b)  in the exercise, or purported exercise, of any power conferred on the Commission by this Act.

             (3)  Subsection (4) applies if a submission has been made, or a document, information or evidence has been given, to the Commission or to a person acting for or on behalf of the Commission.

             (4)  A person is not liable to an action, suit or proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that the submission was made or the document, information or evidence was given.

             (5)  This section is subject to section 67 (about compensation for acquisition of property).

73   No right of action unless expressly provided

                   Except as expressly provided in this Act, nothing in this Act confers any right of action in relation to conduct that:

                     (a)  is unlawful under a provision of Part 4; or

                     (b)  is an offence against a provision of Part 5.

74   Non-disclosure of protected information

             (1)  A person commits an offence if the person:

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

                     (b)  has acquired protected information in the person’s capacity as an entrusted person; and

                     (c)  discloses the information to another person.

Penalty:  Imprisonment for 2 years.

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

                     (a)  the conduct is authorised by a law of the Commonwealth or of a State or Territory; or

                     (b)  a person engages in the conduct:

                              (i)  in the performance of a function under or in connection with this Act; or

                             (ii)  in the exercise of a power conferred on the Commission or the Commissioner by this Act; or

                            (iii)  in accordance with an arrangement in force under section 16 of the Australian Human Rights Commission Act 1986 .

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

             (3)  A person who is, or has been, an entrusted person must not be required:

                     (a)  to disclose to a court protected information acquired in the person’s capacity as an entrusted person; or

                     (b)  to produce in a court a document containing protected information of which that person has custody, or to which that person has access, in that person’s capacity as an entrusted person;

except where it is necessary to do so for the purposes of this Act.

             (4)  In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

entrusted person means:

                     (a)  the Commissioner or another member of the Commission; or

                     (b)  a member of the staff assisting the Commission; or

                     (c)  a delegate of the Commission; or

                     (d)  a delegate of the Commissioner.

produce includes permit access to.

protected information means information:

                     (a)  that is obtained by an entrusted person under or for the purposes of this Act; and

                     (b)  that relates to the affairs of another person.

75   Commissioner to give information to the Commission

                   The Commissioner must give the Commission such information relating to the operations of the Commissioner as the Commission requires.

76   Review of operation of Act

             (1)  The Commissioner must conduct a review of the operation of this Act, which must be completed no later than 2 years after the commencement of this Act.

             (2)  The Commissioner must give the Minister a written report of the review.

             (3)  The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

77   Regulations

                   The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed by the regulations; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.