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Inspector of Transport Security Bill 2006

Part 7 Protected information

   

66   What is protected information ?

                   Protected information is any information or document obtained or generated by any person in the course of exercising powers or performing functions under this Act, or assisting another person in the exercise of powers or performance of functions under this Act, but does not include:

                     (a)  information that is already publicly available; or

                     (b)  anything kept in a library, art gallery or museum for the purposes of reference, study or exhibition; or

                     (c)  Commonwealth records as defined by subsection 3(1) of the Archives Act 1983 that are in the open access period for the purposes of that Act; or

                     (d)  OBR information; or

                     (e)  CVR information; or

                      (f)  restricted information that is given to the Inspector by the Executive Director.

Note 1:       The copying, recording and disclosure of OBR information and restricted information given to the Inspector by the Executive Director continues to be dealt with under the Transport Safety Investigation Act 2003 , subject to provisions of this Act that modify the operation of that Act.

Note 2:       The copying and disclosure of CVR information continues to be dealt with under the Civil Aviation Act 1988 , subject to provisions of this Act that modify the operation of that Act.

67   Offence—copying, recording, using or disclosing protected information

             (1)  A person commits an offence if:

                     (a)  the person obtains or generates information or a document in the course of exercising powers or performing functions under this Act, or assisting another person in the exercise of powers or performance of functions under this Act; and

                     (b)  the information is protected information; and

                     (c)  the person does any of the following:

                              (i)  copies, or makes a record of, the information;

                             (ii)  uses the information;

                            (iii)  discloses the information to any person or to a court, a tribunal or a coroner.

Penalty:  Imprisonment for 2 years.

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

                     (a)  the information is copied, recorded, used or disclosed in circumstances in which that conduct is permitted, either expressly or by implication, under this Act; or

                     (b)  the information is copied, recorded, used or disclosed for the purposes of proceedings for an offence against this Act; or

                     (c)  the information is copied, recorded, used or disclosed for the purposes of proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) that relates to this Act; or

                     (d)  the information is copied, recorded, used or disclosed for the purposes of proceedings for an offence against section 149.1 of the Criminal Code (obstruction of Commonwealth public officials) that relates to this Act; or

                     (e)  the information is disclosed to a court in a civil proceeding or to a coronial inquiry in relation to which:

                              (i)  the Minister issues a certificate under subsection (3); and

                             (ii)  the court or coroner makes an order under subsection (5); or

                      (f)  the information is disclosed to a court in a criminal proceeding in relation to which:

                              (i)  the Minister issues a certificate under subsection (4); and

                             (ii)  the court makes an order under subsection (5).

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

             (3)  The Minister may issue a certificate in relation to the disclosure of protected information in a civil proceeding or a coronial inquiry, stating that the disclosure of the information is not likely to interfere with an inquiry conducted in accordance with a direction of the Minister under section 11.

             (4)  The Minister may issue a certificate in relation to the disclosure of protected information, stating that the disclosure of the information in a criminal proceeding is not likely to interfere with an inquiry conducted in accordance with a direction of the Minister under section 11, if:

                     (a)  the criminal proceeding is in relation to an alleged offence against a law of the Commonwealth, or of a State or Territory, punishable by a maximum penalty of imprisonment for more than 2 years; and

                     (b)  the disclosure of the information is necessary to establish a chain of dealing with evidence.

             (5)  If the court or coroner is satisfied that any adverse impact that the disclosure of the information might have on any current or future inquiry under this Act is outweighed by the public interest in the administration of justice, the court or coroner may order such disclosure.

             (6)  The court or coroner may direct that the protected information, or any information obtained from the protected information, must not:

                     (a)  be published or communicated to any person; or

                     (b)  be published or communicated except in such manner, and to such person, as the court or coroner specifies.

             (7)  If a person is prohibited by this section from disclosing protected information, then:

                     (a)  the person cannot be required by a court or coroner to disclose the information; and

                     (b)  any information disclosed by the person in contravention of this section is not admissible in any proceedings (other than proceedings against the person under this section).

68   Disclosing information where serious offence imminent

             (1)  The Inspector may disclose protected information to a government agency, if the Inspector believes on reasonable grounds that:

                     (a)  the commission of an offence is imminent; and

                     (b)  the offence is an offence against a law of the Commonwealth, or of a State or Territory, punishable by a maximum penalty of imprisonment for more than 2 years; and

                     (c)  the information may be relevant to the prevention of the offence.

             (2)  The government agency must not copy, make a record of, use or disclose the protected information obtained from the Inspector for any purpose that is not related to the prevention of an offence against a law of the Commonwealth, or of a State or Territory, punishable by a maximum penalty of imprisonment for more than 2 years.

69   Disclosing information where not directly relevant to an inquiry

             (1)  The Inspector may disclose protected information to a government agency, if:

                     (a)  the information was voluntarily disclosed to the Inspector or a person assisting another person in the exercise of powers or performance of functions under this Act; and

                     (b)  the Inspector believes on reasonable grounds that:

                              (i)  the information is not directly relevant to an inquiry conducted in accordance with a direction of the Minister under section 11; and

                             (ii)  the information may be relevant to the prevention or prosecution of an offence against a law of the Commonwealth, or of a State or Territory.

             (2)  The government agency must not copy, make a record of, use or disclose the protected information obtained from the Inspector for any purpose that is not related to the prevention or prosecution of an offence against a law of the Commonwealth, or of a State or Territory.

70   Disclosing information to the Executive Director

             (1)  The Inspector may disclose protected information to the Executive Director if:

                     (a)  the Executive Director requests the Inspector to do so under subsection (2); and

                     (b)  the Inspector believes that any adverse effect that the disclosure may have on a current or future inquiry under this Act is outweighed by the public interest served by disclosing the information to the Executive Director.

             (2)  The Executive Director may request the Inspector to disclose protected information to the Executive Director if he or she believes that the Inspector has the information and that the information is relevant to an investigation that is being conducted by the Executive Director.

71   Immunity where copying, recording, using or disclosing protected information permitted under this Act

             (1)  This section applies where:

                     (a)  a person copies, makes a record of, uses or discloses protected information in circumstances in which the person is permitted to do so under this Act, either expressly or by implication; or

                     (b)  a person copies, makes a record of, uses or discloses protected information in circumstances in which the person honestly and reasonably believes he or she is permitted to do so under this Act, either expressly or by implication.

             (2)  The person may copy, make a record of, use or disclose the protected information, despite any other law.

Note:          This section constitutes authorisation for the purposes of other laws, such as paragraph (1)(d) of Information Privacy Principle 11 in section 14 of the Privacy Act 1988 .

             (3)  The person is not liable:

                     (a)  to any proceedings for contravening any other law because of that conduct; or

                     (b)  to civil proceedings for loss, damage or injury of any kind suffered by another person because of that conduct; or

                     (c)  to disciplinary action, or to a disciplinary sanction, of any kind because of that conduct.