Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 (69 of 2020)
Schedule 1 Amendments relating to the Registrar
Part 1 Main amendments
Business Names Registration Act 2011
5 Before section 63
Insert:
Division 1 - Matters relating to handling records and information
Subdivision A - The Registrar
62A Appointment of the Registrar
(1) The Minister may, by notifiable instrument, appoint a Commonwealth body to be the Registrar.
(2) The Minister may, by notifiable instrument, appoint a Commonwealth body to be the Registrar in relation to one or more functions or powers of the Registrar.
62B Functions
The Registrar's functions are:
(a) such functions as are conferred on the Registrar by or under this Act or the Transitional Act; and
(b) such functions as are prescribed by rules made for the purposes of this paragraph under section 62U; and
(c) such functions as are incidental to the functions mentioned in paragraph (a) or (b).
62C Powers
The Registrar's powers include:
(a) such powers as are conferred:
(i) on the Registrar in relation to the functions mentioned in section 62B; and
(ii) by or under this Act or the Transitional Act; and
(b) the power to do all things necessary or convenient to be done for or in connection with the performance of those functions.
62D Directions by Minister
(1) The Minister may, by legislative instrument, give written directions to the Registrar about the performance of its functions and the exercise of its powers.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(2) Without limiting subsection (1), a direction under that subsection may relate to any of the following:
(a) matters to be dealt with in the data standards or disclosure framework;
(b) consultation processes to be followed prior to making data standards or the disclosure framework.
(3) A direction under subsection (1) must be of a general nature only.
(4) Subsection (3) does not prevent a direction under subsection (1) from relating to a particular matter to be dealt with in the data standards or disclosure framework. However, the direction must not direct the Registrar how to apply the data standards or disclosure framework in a particular case.
(5) The Registrar must comply with a direction under subsection (1).
62E Delegation
(1) The Registrar may, in writing, delegate all or any of the Registrar's functions or powers under this Act or the Transitional Act (other than the power to make data standards or the disclosure framework) to:
(a) any person to whom it may delegate any of its other functions, as a Commonwealth body, under a law of the Commonwealth; or
(b) any person of a kind specified in rules made under section 62U.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(2) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Registrar.
62F Assisted decision making
(1) The Registrar may arrange for the use, under the Registrar's control, of processes to assist decision making (such as computer applications and systems) for any purposes for which the Registrar may make decisions in the performance or exercise of the Registrar's functions or powers under this Act or the Transitional Act, other than decisions reviewing other decisions.
(2) A decision the making of which is assisted by the operation of such a process under an arrangement made under subsection (1) is taken to be a decision made by the Registrar.
(3) The Registrar may substitute a decision for a decision (the initial decision ) the making of which is assisted by the operation of such a process under an arrangement under subsection (1) if the Registrar is satisfied that the initial decision is incorrect.
62G Liability for damages
None of the following:
(a) the Registrar;
(b) if the Registrar is a Commonwealth body that has members - a member of the Registrar;
(c) a member of the staff of the Registrar;
(d) a person who is, or is a member of or a member of the staff of, a delegate of the Registrar;
(e) a person who is authorised to perform or exercise a function or power of, or on behalf of, the Registrar;
(f) an APS employee, or an officer or employee of a Commonwealth body, whose services are made available to the Registrar in connection with the performance or exercise of any of the Registrar's functions or powers;
is liable to an action or other proceeding for damages for or in relation to an act done, or omitted to be done, in good faith in performance or purported performance of any function, or in exercise or purported exercise of any power, conferred or expressed to be conferred by or under this Division.
Subdivision B - How the Registrar is to perform and exercise functions and powers
62H Data standards
(1) The Registrar may, by legislative instrument, make data standards on matters relating to the performance of the Registrar's functions and the exercise of the Registrar's powers under this Act or the Transitional Act.
(2) Without limiting subsection (1), the data standards may provide for any of the following:
(a) what information may be collected for the purposes of the performance of the Registrar's functions and the exercise of the Registrar's powers under this Act or the Transitional Act;
(b) how such information may be collected;
(c) the manner and form in which such information is given to the Registrar;
(d) when information is to be given to the Registrar;
(e) how information held by the Registrar is to be authenticated, verified or validated;
(f) how information held by the Registrar is to be stored;
(g) correction of information held by the Registrar;
(h) the manner and form of communication between the Registrar and persons who give information to the Registrar or seek to access information held by the Registrar;
(i) integrating or linking information held by the Registrar.
(3) Without limiting subsection (1), the data standards may provide differently in relation to different functions or powers of the Registrar.
(4) If:
(a) a Commonwealth body (the new Registrar ) is appointed as the Registrar with particular functions or powers under this Act or the Transitional Act; and
(b) immediately before that appointment, another Commonwealth body was the Registrar with those functions or powers; and
(c) the new Registrar does not have data standards that would apply to those functions or powers;
any data standards applying to those functions or powers immediately before that appointment continue to apply until the new Registrar makes data standards that apply to those functions or powers, or amends its existing data standards to apply to those functions or powers.
62J Giving information to the Registrar
(1) Without limiting section 62H, the data standards may provide that information is to be given to the Registrar in electronic form, or any other specified form.
(2) A requirement under this Act or the Transitional Act that information is to be provided to the Registrar in a particular form or manner (however described), including a requirement:
(a) that the information is to be "lodged" or "furnished"; and
(b) that the information is to be "written" or "in writing"; and
(c) that a "copy" of a document containing the information is to be provided;
is not taken to restrict by implication what the data standards may provide under subsection (1) in relation to that information.
62K How the Registrar is to perform and exercise functions and powers
(1) The Registrar must perform its functions and exercise its powers under this Act or the Transitional Act in accordance with:
(a) the data standards; or
(b) if there are no data standards that apply to particular functions or powers - any requirement relating to those functions or powers as in force immediately before those functions or powers became functions or powers of the Registrar.
(2) This section does not affect the application to the Registrar of any other law of the Commonwealth.
Subdivision C - Disclosure of information
62L Disclosure framework
(1) The Registrar may, by legislative instrument, make a disclosure framework relating to disclosing protected information.
(2) Without limiting subsection (1), the disclosure framework may provide for any of the following:
(a) circumstances in which information must not be disclosed without the consent of the person to whom it relates;
(b) circumstances in which de-identified information may be disclosed;
(c) circumstances in which information may be disclosed to the general public;
(d) circumstances in which confidentiality agreements are required for the disclosure of information;
(e) imposing conditions on disclosure of information.
(3) Without limiting subsection (1), the disclosure framework may provide differently in relation to different functions or powers of the Registrar under this Act or the Transitional Act.
(4) A person commits an offence if:
(a) the person is a party to a confidentiality agreement of a kind mentioned in paragraph (2)(d); and
(b) the person fails to comply with the confidentiality agreement.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
(5) The disclosure framework must not provide for disclosure of protected information unless the Registrar is satisfied that the benefits of the disclosure would outweigh the risks of the disclosure (taking into account any mitigation of those risks in accordance with the disclosure framework).
(6) However, subsection (5) does not apply to the extent that the disclosure framework deals with a matter in accordance with a direction under section 62D.
(7) If:
(a) a Commonwealth body (the new Registrar ) is appointed as the Registrar with particular functions or powers under this Act or the Transitional Act; and
(b) immediately before that appointment, another Commonwealth body was the Registrar with those functions or powers; and
(c) the new Registrar does not have a disclosure framework that would apply to those functions or powers;
the disclosure framework applying to those functions or powers immediately before that appointment continues to apply until the new Registrar makes a disclosure framework that applies to those functions or powers, or amends its existing disclosure framework to apply to those functions or powers.
62M Protection of confidentiality of protected information
(1) A person (the first person ) commits an offence if:
(a) the first person is, or has been, in official employment; and
(b) the first person makes a record of information, or discloses information to another person; and
(c) the information is protected information that was obtained by the first person in the course of the first person's official employment.
(2) However, subsection (1) does not apply if the recording or disclosure is authorised by subsection (3).
(3) The recording or disclosure is authorised by this subsection if:
(a) the recording or disclosure is for the purposes of this Division; or
(b) the recording or disclosure happens in the course of the performance of the duties of the first person's official employment; or
(c) in the case of a disclosure - the disclosure is to another person for use, in the course of the performance of the duties of the other person's official employment, in relation to the performance or exercise of the functions or powers of a government entity; or
(d) in the case of a disclosure to another person who is an employee of a State, a Territory or an authority of a State or Territory - the disclosure:
(i) is to the other person for use, in the course of the performance of the duties of that employment, in relation to the performance or exercise of the functions or powers of a government entity; and
(ii) is in accordance with an agreement, about registration of business names, between the Commonwealth, the States, the Australian Capital Territory and the Northern Territory; or
(e) in the case of a disclosure - each person to whom the information relates consents to the disclosure; or
(f) in the case of a disclosure - the disclosure is in accordance with the disclosure framework.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3): see subsection 13.3(3) of the Criminal Code.
62N Authorisation of recording or disclosure
(1) A person is not liable to any proceedings for contravening a secrecy provision in respect of a recording or disclosure authorised under subsection 62M(3), unless the secrecy provision is a designated secrecy provision.
(2) A secrecy provision is a provision that:
(a) is a provision of a law of the Commonwealth (other than this Act); and
(b) prohibits or regulates the use or disclosure of information.
(3) A designated secrecy provision is any of the following:
(a) sections 18 to 18B and 92 of the Australian Security Intelligence Organisation Act 1979;
(b) section 34 of the Inspector-General of Intelligence and Security Act 1986;
(c) sections 39 to 41 of the Intelligence Services Act 2001;
(d) section 8WB of the Taxation Administration Act 1953;
(e) a provision of a law of the Commonwealth prescribed by rules made for the purposes of this paragraph under section 62U;
(f) a provision of a law of the Commonwealth of a kind prescribed by rules made for the purposes of this paragraph under section 62U.
62P Preventing disclosure of particular protected information
(1) If:
(a) a person applies to the Registrar for particular protected information relating to the person not to be disclosed; and
(b) the Registrar is satisfied that it is not appropriate to disclose that information;
a disclosure of that information is taken, for the purposes of this Act, not to be in accordance with the disclosure framework.
(2) Without limiting section 62L, the disclosure framework may provide for:
(a) how applications referred to in paragraph (1)(a) are to be made; and
(b) how those applications are to be decided.
62Q Authorisation for purposes of Privacy Act
A disclosure of personal information (within the meaning of the Privacy Act 1988) is taken to be authorised by law for the purposes of paragraph 6.2(b) of Schedule 1 to that Act if:
(a) the information is protected information; and
(b) the disclosure is authorised by subsection 62M(3) of this Act.
62R Disclosure to a court
A person is not to be required:
(a) to produce to a court any document that:
(i) contains protected information; and
(ii) was made or given under, or for the purposes of, this Act or the Transitional Act; and
(iii) was obtained by the person in the course of the person's official employment; or
(b) to disclose to a court any protected information that the person obtained in the course of the person's official employment;
unless the production or disclosure is necessary for the purpose of giving effect to a taxation law or an Australian business law.
Subdivision D - Miscellaneous
62S Extracts of information to be admissible in evidence
(1) In any proceedings, a document, or a copy of a document, that purports (irrespective of the form of wording used) to be an extract of information held by the Registrar under, or for the purposes of, this Act or the Transitional Act:
(a) is proof, in the absence of evidence to the contrary, of information that is stated in it and that purports to be held by the Registrar; and
(b) is admissible without any further proof of, or the production of, the original;
if it does not appear to the Court to have been revised or tampered with in a way that affects, or is likely to affect, the information.
(2) The Registrar may give a person a certified copy of, or extract from, the information held by the Registrar under, or for the purposes of, this Act or the Transitional Act on payment of the fee (if any) prescribed by rules made under section 62U.
(3) In any proceedings, the certified copy:
(a) is prima facie evidence of information that is stated in it and that purports to be held by the Registrar under, or for the purposes of, this Act or the Transitional Act; and
(b) is admissible without any further proof of, or the production of, the original.
(4) This section does not limit the manner in which evidence may be adduced, or the admissibility of evidence, under the Evidence Act 1995.
62T Annual report
Each annual report by the Registrar for a period must include information about the performance of the Registrar's functions and exercise of the Registrar's powers under, or for the purposes of, this Act or the Transitional Act during that period.
62U Rules
(1) The Minister may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Division to be prescribed by rules made under this section; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Division.
(2) To avoid doubt, rules made under this section may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
Division 2 - Miscellaneous