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Division 5--Miscellaneous


63 Legal assistance

(1) If:

(a) the Commissioner has dismissed a file number complaint; and

(b) the respondent to the complaint is not an agency or the principal executive of an agency;

the respondent may apply to the Attorney-General for assistance under this section.

(2) A person who:

(a) has commenced or proposes to commence proceedings in the Federal Court or the Federal Magistrates Court under section 55; or

(b) has engaged in conduct or is alleged to have engaged in conduct in respect of which proceedings have been commenced in the Federal Court or the Federal Magistrates Court under section 55;

may apply to the Attorney-General for the provision of assistance under this section in respect of the proceedings.

(2A) Subsection (2) does not permit an application relating to proceedings under section 55A to enforce a determination relating to a code complaint or an NPP complaint.

(3) If the Attorney-General is satisfied that in all the circumstances it is reasonable to grant an application made under this section, he or she may authorise the provision by the Commonwealth to the applicant of:

(a) in the case of an application under subsection (1)--such financial assistance in connection with the investigation of the complaint as the Attorney-General determines; or

(b) in the case of an application under subsection (2)--such legal or financial assistance in respect of the proceeding as the Attorney-General determines.

(4) An authorisation under subsection (3) may be made subject to such conditions (if any) as the Attorney-General determines.

(5) In considering an application made under this section, the Attorney-General must have regard to any hardship to the applicant that refusal of the application would involve.

64 Commissioner etc. not to be sued

(1) Neither the Commissioner nor a person acting under his or her direction or authority is liable to an action, suit or proceeding in relation to an act done or omitted to be done in good faith in the exercise or purported exercise of any power or authority conferred by this Act.

(2) Neither an adjudicator for an approved privacy code, nor a person acting under his or her direction or authority, is liable to an action, suit or proceeding in relation to an act done or omitted to be done in good faith in the exercise or purported exercise of any power or authority conferred by this Act or the code.

65 Failure to attend etc. before Commissioner

(1) A person shall not, without reasonable excuse:

(a) refuse or fail to attend before the Commissioner; or

(b) refuse or fail to be sworn or make an affirmation;

when so required under this Act.

Penalty: $2,000 or imprisonment for 12 months, or both.

(2) A person shall not, without reasonable excuse, wilfully obstruct, hinder or resist the Commissioner in the performance of his or her functions under this Act.

Penalty: $2,000 or imprisonment for 12 months, or both.

(3) A person shall not furnish information or make a statement to the Commissioner knowing that it is false or misleading in a material particular.

Penalty: $2,000 or imprisonment for 12 months, or both.

66 Failure to give information etc.

(1) A person shall not refuse or fail, without reasonable excuse:

(a) to give information; or

(b) to answer a question or produce a document or record;

when so required under this Act.

Penalty:

(a) in the case of an individual--$2,000 or imprisonment for 12 months, or both; or

(b) in the case of a body corporate--$10,000.

(1A) For the purposes of subsection (1), a journalist has a reasonable excuse if giving the information, answering the question or producing the document or record would tend to reveal the identity of a person who gave information or a document or record to the journalist in confidence.

(2) For the purposes of subsections (3) to (11) (inclusive):

document includes a record.

information includes an answer to a question.

(3) Subject to subsections (4), (7) and (10), it is a reasonable excuse for the purposes of subsection (1) for an individual:

(a) to refuse or fail to give information when so required under this Act; or

(b) to refuse or fail to produce a document when so required under this Act;

that giving the information, or producing the document, as the case may be, might tend to incriminate the individual or make the individual liable to forfeiture or a penalty.

(4) Subsection (3) does not apply in relation to a failure or refusal by an individual to give information, or to produce a document, on the ground that giving the information or producing the document might tend to prove his or her guilt of an offence against, or make him or her liable to forfeiture or a penalty under, a law of the Commonwealth or of a Territory, if the Director of Public Prosecutions has given the individual a written undertaking under subsection (5).

(5) An undertaking by the Director of Public Prosecutions shall:

(a) be an undertaking that:

(i) information given, or a document produced, by the individual; or

(ii) any information or document obtained as a direct or indirect consequence of the giving of the information, or the production of the document;

will not be used in evidence in any proceedings for an offence against a law of the Commonwealth or of a Territory, or in any disciplinary proceedings, against the individual, other than proceedings in respect of the falsity of evidence given by the individual;

(b) state that, in the opinion of the Director of Public Prosecutions, there are special reasons why, in the public interest, the information or document should be available to the Commissioner; and

(c) state the general nature of those reasons.

(6) The Commissioner may recommend to the Director of Public Prosecutions that an individual who has been, or is to be, required under this Act to give information or produce a document be given an undertaking under subsection (5).

(7) Subsection (3) does not apply in relation to a failure or refusal by an individual to give information, or to produce a document, on the ground that giving the information or producing the document might tend to prove his or her guilt of an offence against, or make him or her liable to forfeiture or a penalty under, a law of a State, if the Attorney-General of the State, or a person authorised by that Attorney-General (being the person holding the office of Director of Public Prosecutions, or a similar office, of the State) has given the individual a written undertaking under subsection (8).

(8) An undertaking by the Attorney-General of the State, or authorised person, shall:

(a) be an undertaking that:

(i) information given, or a document produced, by the individual; or

(ii) any information or document obtained as a direct or indirect consequence of the giving of the information, or the production of the document;

will not be used in evidence in any proceedings for an offence against a law of the State, or in any disciplinary proceedings, against the individual, other than proceedings in respect of the falsity of evidence given by the individual;

(b) state that, in the opinion of the person giving the undertaking, there are special reasons why, in the public interest, the information or document should be available to the Commissioner; and

(c) state the general nature of those reasons.

(9) The Commissioner may recommend to the Attorney-General of a State that an individual who has been, or is to be, required under this Act to give information or produce a document be given an undertaking under subsection (8).

(10) For the purposes of subsection (1):

(a) it is not a reasonable excuse for a body corporate to refuse or fail to produce a document that production of the document might tend to incriminate the body corporate or make it liable to forfeiture or a penalty; and

(b) it is not a reasonable excuse for an individual to refuse or fail to produce a document that is, or forms part of, a record of an existing or past business (not being, if the individual is or has been an employee, a document that sets out details of earnings received by the individual in respect of his or her employment and does not set out any other information) that production of the document might tend to incriminate the individual or make the individual liable to forfeiture or a penalty.

(11) Subsections (4), (7) and (10) do not apply where proceedings, in respect of which giving information or producing a document might tend to incriminate an individual or make an individual liable to forfeiture or a penalty, have been commenced against the individual and have not been finally dealt with by a court or otherwise disposed of.

67 Protection from civil actions

Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:

(a) the making of a complaint under this Act;

(aa) the making of a complaint under an approved privacy code;

(ab) the acceptance of a complaint under subsection 40(1B);

(b) the making of a statement to, or the giving of a document or information to, the Commissioner, whether or not pursuant to a requirement under section 44.

68 Power to enter premises

(1) Subject to subsection (3), for the purposes of the performance by the Commissioner of his or her functions under this Act, a person authorised by the Commissioner in writing for the purposes of this section may, at any reasonable time of the day, enter premises occupied by an agency, an organisation, a file number recipient, a credit reporting agency or a credit provider and inspect any documents that are kept at those premises and that are relevant to the performance of those functions, other than documents in respect of which the Attorney-General has furnished a certificate under subsection 70(1) or (2).

(1A) The Commissioner may authorise a person only while the person is a member of the staff assisting the Commissioner.

(2) The occupier or person in charge of the premises shall provide the authorised person with all reasonable facilities and assistance for the effective exercise of the authorised person's powers under subsection (1).

(3) A person shall not enter under subsection (1) premises other than premises that are occupied by an agency unless:

(a) the occupier of the premises has consented to the person entering the premises; or

(b) the person is authorised, pursuant to a warrant issued under subsection (4), to enter the premises.

(3A) Before obtaining the consent, the authorised person must inform the occupier or person in charge that he or she may refuse to consent.

(3B) An entry by an authorised person with the consent of the occupier or person in charge is not lawful if the consent was not voluntary.

(3C) The authorised person may not enter premises (other than premises occupied by an agency) if:

(a) the occupant or person in charge asks the authorised person to produce his or her identity card; and

(b) the authorised person does not produce it.

(3D) If an authorised person is on premises with the consent of the occupier or person in charge, the authorised person must leave the premises if the occupier or person in charge asks the authorised person to do so.

(4) If, on an application made by a person authorised by the Commissioner under subsection (1), a Magistrate is satisfied, by information on oath, that it is reasonably necessary, for the purposes of the performance by the Commissioner of his or her functions under this Act, that the person be empowered to enter the premises, the Magistrate may issue a warrant authorising the person, with such assistance as the person thinks necessary, to enter the premises, if necessary by force, for the purpose of exercising those powers.

(5) A warrant issued under subsection (4) shall state:

(a) whether entry is authorised to be made at any time of the day or during specified hours of the day; and

(b) a day, not being later than one month after the day on which the warrant was issued, at the end of which the warrant ceases to have effect.

(6) Nothing in subsection (1) restricts the operation of any other provision of this Part.

68A Identity cards

(1) The Commissioner must issue to a person authorised for the purposes of section 68 an identity card in the form approved by the Commissioner. The identity card must contain a recent photograph of the authorised person.

(2) As soon as practicable after the person ceases to be authorised, he or she must return the identity card to the Commissioner.

(3) A person must not contravene subsection (2).

Penalty: 1 penalty unit.

69 Restrictions on Commissioner obtaining personal information and documents

(1) Information relating to an individual shall not be furnished, in connection with a complaint, in such a manner as to reveal the individual's identity, unless the individual has made the complaint or has consented to the information being so furnished.

(2) A document that contains information relating to an individual and that reveals the individual's identity shall not be produced, in connection with a complaint, unless:

(a) the person has made the complaint or has consented to the document being so produced; or

(b) the document is a copy of another document and has had deleted from it such information as reveals the identity of the person.

(3) A person shall not furnish, in connection with a complaint, prescribed information that relates to an individual other than the complainant and does not also relate to the complainant.

(4) A person shall not furnish, in connection with a complaint, prescribed information that relates both to the complainant and to another individual, unless the information is so furnished in such a manner as not to reveal the identity of the other person.

(5) A person shall not produce, in connection with a complaint, a prescribed document containing information that relates to an individual other than the complainant and does not also relate to the complainant, unless the document is a copy of another prescribed document and has had that information deleted from it.

(6) A person shall not produce, in connection with a complaint, a prescribed document containing information that relates both to the complainant and to another individual, unless the document is a copy of another prescribed document and has had deleted from it such information as reveals the identity of the other individual.

(7) This section has effect notwithstanding any other provision of this Part.

(8) A reference in this section to furnishing information, or to producing a document, in connection with a complaint is a reference to furnishing the information, or to producing the document, as the case may be, to the Commissioner in connection with the performance or exercise by the Commissioner, in relation to that complaint, of the Commissioner's functions or powers.

(9) In this section:

complaint means:

(a) a complaint under section 36; or

(b) a complaint the Commissioner accepts under subsection 40(1B).

document includes any other record.

prescribed document means a document that was furnished or obtained under or for the purposes of a relevant law or a copy of such a document.

prescribed information means information that the person furnishing the information acquired by reason of holding or having held an office, or being or having been employed, under or for the purposes of a relevant law.

relevant law means a taxation law or a law of the Commonwealth relating to census and statistics.

taxation law means:

(a) an Act of which the Commissioner of Taxation has the general administration (other than an Act prescribed for the purposes of paragraph (b) of the definition of taxation law in section 2 of the Taxation Administration Act 1953); or

(b) regulations under an Act referred to in paragraph (a) of this definition.

70 Certain documents and information not required to be disclosed

(1) Where the Attorney-General furnishes to the Commissioner a certificate certifying that the giving to the Commissioner of information concerning a specified matter (including the giving of information in answer to a question), or the production to the Commissioner of a specified document or other record, would be contrary to the public interest because it would:

(a) prejudice the security, defence or international relations of Australia;

(b) involve the disclosure of communications between a Minister of the Commonwealth and a Minister of a State, being a disclosure that would prejudice relations between the Commonwealth Government and the Government of a State;

(c) involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet;

(d) involve the disclosure of deliberations or advice of the Executive Council;

(e) prejudice the conduct of an investigation or inquiry into crime or criminal activity that is currently being pursued, or prejudice the fair trial of any person;

(f) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement of the criminal law;

(g) prejudice the effectiveness of the operational methods or investigative practices or techniques of agencies responsible for the enforcement of the criminal law; or

(h) endanger the life or physical safety of any person;

the Commissioner is not entitled to require a person to give any information concerning the matter or to produce the document or other record.

(2) Without limiting the operation of subsection (1), where the Attorney-General furnishes to the Commissioner a certificate certifying that the giving to the Commissioner of information as to the existence or non-existence of information concerning a specified matter (including the giving of information in answer to a question) or as to the existence or non-existence of any document or other record required to be produced to the Commissioner would be contrary to the public interest:

(a) by reason that it would prejudice the security, defence or international relations of Australia; or

(b) by reason that it would prejudice the proper performance of the functions of the National Crime Authority;

the Commissioner is not entitled, pursuant to this Act, to require a person to give any information as to the existence or non-existence of information concerning that matter or as to the existence of that document or other record.

70A Application of Part to organisations that are not legal persons

Partnerships

(1) If, apart from this subsection, this Part would impose an obligation to do something (or not to refuse or fail to do something) on an organisation that is a partnership, the obligation is imposed instead on each partner but may be discharged by any of the partners.

Unincorporated associations

(2) If, apart from this subsection, this Part would impose an obligation to do something (or not to refuse or fail to do something) on an organisation that is an unincorporated association, the obligation is imposed instead on each member of the committee of management of the association but may be discharged by any of the members of that committee.

Trusts

(3) If, apart from this subsection, this Part would impose an obligation to do something (or not to refuse or fail to do something) on an organisation that is a trust, the obligation is imposed instead on each trustee but may be discharged by any of the trustees.

70B Application of this Part to former organisations

If an individual, body corporate, partnership, unincorporated association or trust ceases to be an organisation but continues to exist, this Part operates in relation to:

(a) an act or practice of the organisation (while it was an organisation); and

(b) the individual, body corporate, partnership, unincorporated association or trust;

as if he, she or it were still (and had been at all relevant times) an organisation.

Example 1: If an individual carrying on a business was not a small business operator, but later became one and remained alive:

(a) a complaint may be made under this Part about an act or practice of the individual in carrying on the business before he or she became a small business operator; and

(b) the complaint may be investigated (and further proceedings taken) under this Part as though the individual were still an organisation.

Example 2: A small business operator chooses under section 6EA to be treated as an organisation, but later revokes the choice. A complaint about an act or practice the operator engaged in while the choice was registered under that section may be made and investigated under this Part as if the operator were an organisation.


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