PART 7
-
MISCELLANEOUS
Division 70
-
Miscellaneous
Subdivision 70-E
-
Miscellaneous
SECTION 70-40
Exceptions to the prohibition on disclosure of official information
Disclosure in the performance of duties
70-40(1)
Subsection
70-35(1)
does not apply if the record or disclosure is made in performing the person
'
s duties under or in relation to this Act or the regulations.
Note:
A defendant bears an evidential burden in relation to the matters in subsection
(1)
: see subsection
13.3(3)
of the
Criminal Code
.
Disclosure of publicly available information
70-40(2)
Subsection
70-35(1)
does not apply if the information was already available to the public (otherwise than as a result of a contravention of subsection
70-35(1)
or
70-45(1)
).
Note:
A defendant bears an evidential burden in relation to the matters in subsection
(2)
: see subsection
13.3(3)
of the
Criminal Code
.
Disclosures to the Commissioner
70-40(3)
Subsection
70-35(1)
does not apply if the record or disclosure is to the Commissioner and is for the purpose of administering a *taxation law.
Note:
A defendant bears an evidential burden in relation to the matters in subsection
(3)
: see subsection
13.3(3)
of the
Criminal Code
.
History
S 70-40(3) substituted by No 120 of 2013, s 3 and Sch 2 item 25, applicable to: (a) a record made on or after 30 June 2013, even if the information to which the record relates was acquired before that time; and (b) a disclosure made on or after 30 June 2013, even if the information disclosed is contained in a record made before that time. S 70-40(3) formerly read:
Disclosures to the Commissioner of Taxation
70-40(3)
Subsection
70-35(1)
does not apply if the record or disclosure:
(a)
is to the Commissioner; and
(b)
is for the purpose of:
(i)
investigating a *taxation offence; or
(ii)
enforcing a law, the contravention of which is a taxation offence; or
(iii)
investigating the contravention of, or enforcing a provision of, a *taxation law that imposes a civil penalty; or
(iv)
the making, or proposed or possible making, of a *proceeds of crime order relating to a taxation offence.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (3): see subsection
13.3(3)
of the
Criminal Code
.
Disclosures to ASIC
70-40(3A)
Subsection
70-35(1)
does not apply if the record or disclosure is to *ASIC for the purpose of ASIC performing any of its functions or exercising any of its powers.
Note:
A defendant bears an evidential burden in relation to the matters in subsection
(3A)
: see subsection
13.3(3)
of the
Criminal Code
.
History
S 70-40(3A) amended by No 162 of 2015, s 3 and Sch 4 items 8 and 9, by substituting
"
*ASIC
"
for
"
the Australian Securities and Investments Commission
"
and
"
ASIC
"
for
"
the Commission
"
, effective 30 November 2015.
S 70-40(3A) inserted by No 120 of 2013, s 3 and Sch 1 item 41, effective 1 July 2014. For transitional provisions, see note under s
20-5(1)
.
Disclosures to Financial Services and Credit Panels
70-40(3AA)
Subsection
70-35(1)
does not apply if the record or disclosure is to a *Financial Services and Credit Panel for the purpose of the panel performing any of its functions or exercising any of its powers.
Note:
A defendant bears an evidential burden in relation to the matters in subsection
(3AA)
: see subsection
13.3(3)
of the
Criminal Code
.
History
S 70-40(3AA) substituted by No 115 of 2021, s 3 and Sch 1 item 129, effective 1 January 2022. For application and transitional provisions, see note under Subdiv
50-AA
heading. S 70-40(3AA) formerly read:
Disclosures to monitoring bodies for compliance schemes
70-40(3AA)
Subsection 70-35(1) does not apply if the record or disclosure is to a *monitoring body for a *compliance scheme for the purpose of the monitoring body monitoring or enforcing compliance with the *Code of Ethics under the scheme.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (3AA): see subsection 13.3(3) of the
Criminal Code
.
S 70-40(3AA) inserted by No 7 of 2017, s 3 and Sch 1 item 25, effective 15 March 2017.
Disclosures to the Inspector-General of Taxation
70-40(3B)
Subsection
70-35(1)
does not apply if the record or disclosure is to the Inspector-General of Taxation and is for the purpose of investigating or reporting under, or otherwise administering:
(a)
the
Inspector-General of Taxation Act 2003
; or
(b)
provisions of the
Ombudsman Act 1976
, to the extent that they are applied by the
Inspector-General of Taxation Act 2003
.
Note:
A defendant bears an evidential burden in relation to the matters in subsection
(3B)
: see subsection
13.3(3)
of the
Criminal Code
.
History
S 70-40(3B) inserted by No 21 of 2015.
Disclosure in relation to serious offences and proceeds of crime orders
70-40(4)
Subsection
70-35(1)
does not apply if:
(a)
the record is made for, or the disclosure is to, an *authorised law enforcement agency officer; and
(b)
the record or disclosure is for the purpose of:
(i)
investigating a *serious offence; or
(ii)
enforcing a law, the contravention of which is a serious offence; or
(iii)
the making, or proposed or possible making, of a *proceeds of crime order.
Note:
A defendant bears an evidential burden in relation to the matters in subsection
(4)
: see subsection
13.3(3)
of the
Criminal Code
.
History
S 70-40 substituted by No 145 of 2010, s 3 and Sch 2 item 93, applicable to records and disclosures made on or after 17 December 2010 (whenever the information was obtained). S 70-40 formerly read:
SECTION 70-40 Provision of information by Board to Commissioner
70-40(1)
Despite section
70-35
, the Board may disclose information to the Commissioner for the purposes of:
(a)
establishing whether a
*
taxation offence has been, or is being, committed; or
(aa)
establishing whether a civil penalty provision of a *taxation law has been, or is being, contravened; or
(b)
the making, or proposed or possible making, of a
*
proceeds of crime order.
History
S 70-40(1) amended by No 114 of 2009, s 3 and Sch 1 items 29 and 30, by substituting
"
for the purposes of
"
for
"
if the Board is satisfied that the information is relevant to
"
and inserting para (aa), effective 1 March 2010.
70-40(2)
A reference in this section to the possible making of a
*
proceeds of crime order in respect of a person includes a reference to the making of an order that is only a possibility at the time in question because the person has not been convicted (within the meaning of section
331
of the
Proceeds of Crime Act 2002
) of an offence to which the order relates.
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