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Part 4-1—Obtaining information for the purposes of the scheme

Part 4-1 Obtaining information for the purposes of the scheme

Division 1 Simplified outline of this Part

68   Simplified outline of this Part

The Operator may obtain information for the purposes of determining whether to approve an application for redress. Information is required to be provided in the application under section 29.

This Part allows the Operator to request the person, and require participating institutions and others, to provide further information to the Operator for the purposes of determining the application.

Division 2 Obtaining information for the purposes of the scheme

69   Power to request information from applicants

             (1)  If:

                     (a)  an application for redress is made by a person; and

                     (b)  the Operator has reasonable grounds to believe that the person has information, or has custody or control of a document, that may be relevant to determining the application;

then the Operator may request the person to give the information, or produce the document, to the Operator.

             (2)  The request must be made by written notice given to the person.

             (3)  The notice must specify:

                     (a)  the nature of the information or document that is requested to be given or produced; and

                     (b)  how the person is to give the information or produce the document; and

                     (c)  the period (the production period ) within which the person is to give the information or produce the document to the Operator; and

                     (d)  that the notice is given under this section.

             (4)  The production period must be at least 14 days beginning on the date of the notice.

             (5)  The Operator may, by written notice to the person, extend the production period if the Operator considers there are exceptional circumstances that justify the extension.

             (6)  An extension under subsection (5) may be given:

                     (a)  on the Operator’s own initiative; or

                     (b)  on a request made by the person under subsection (7).

             (7)  The person may request the Operator to extend the production period. The request must:

                     (a)  be made before the end of the production period; and

                     (b)  comply with any requirements prescribed by the rules.

70   Power to require information from institutions and others

             (1)  If:

                     (a)  an application for redress is made by a person; and

                     (b)  the Operator has reasonable grounds to believe that a participating institution or another person has information, or has custody or control of a document, that may be relevant to determining the application;

then the Operator may require the institution or other person to give the information, or produce the document, to the Operator.

             (2)  The requirement must be made by written notice given to the institution or other person.

             (3)  The notice must specify:

                     (a)  the nature of the information or document that is required to be given or produced; and

                     (b)  how the institution or other person is to give the information or produce the document; and

                     (c)  the period (the production period ) within which the institution or other person is to give the information or produce the document to the Operator; and

                     (d)  that the notice is given under this section.

             (4)  The production period must be at least 14 days beginning on the date of the notice.

             (5)  The Operator may, by written notice to the institution or other person, extend the production period if the Operator considers there are exceptional circumstances that justify the extension.

             (6)  An extension under subsection (5) may be given:

                     (a)  on the Operator’s own initiative; or

                     (b)  on a request made by the institution or other person under subsection (7).

             (7)  The institution or other person may request the Operator to extend the production period. The request must:

                     (a)  be made before the end of the production period; and

                     (b)  comply with any requirements prescribed by the rules.

71   Refusal or failure to comply with requirement

             (1)  A participating institution or person must not refuse or fail to comply with a requirement under section 70.

Note:          If a participating institution does not comply with the requirement, the Operator must include details about the non-compliance in the annual report for the scheme, which the Minister will present to the Parliament (see section 122). This reporting requirement is in addition to the participating institution’s liability to a civil penalty.

Civil penalty:          100 penalty units.

             (2)  Subsection (1) does not apply if the institution or person has a reasonable excuse.

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

             (3)  A person is not excused from giving information, or producing a document, under section 70 on the ground that the giving of the information or the production of the document might tend to incriminate the individual or expose the individual to a penalty.

             (4)  However:

                     (a)  the information given or document produced; and

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

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

are not admissible in evidence against the individual in any criminal proceedings, other than proceedings under section 137.1 or 137.2 of the Criminal Code in relation to giving the information or producing the document.

Division 3 Interaction with other laws

72   Obligations not affected by State or Territory laws

             (1)  Nothing in a law of a State or a self-governing Territory prevents a person from:

                     (a)  giving information; or

                     (b)  producing a document; or

                     (c)  giving evidence;

that the person is required to give or produce to the Operator or an officer for the purposes of the scheme.

             (2)  However, a person is not required to give information, produce a document or give evidence to the Operator or an officer for the purposes of the scheme if:

                     (a)  the person would, apart from subsection (1), be prevented from doing so under a law of a State or self-governing Territory; and

                     (b)  the law of the State or Territory is:

                              (i)  specified in the Commonwealth Redress Scheme Agreement; or

                             (ii)  prescribed by the rules.

73   Interaction with Commonwealth laws

                   This Part does not require a person to give information or produce a document to the extent that in doing so the person would contravene a law of the Commonwealth.