House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Deputy Prime Minister and Treasurer, the Hon Wayne Swan MP)

Chapter 11 Secrecy framework

Outline of chapter

11.1 This Chapter explains the secrecy framework of the Australian Charities and Not-for-profits Commission (ACNC), including:

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the overview and objectives of the secrecy framework;

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the general prohibition that applies to the use and disclosure of protected information;

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the exceptions that apply to the general prohibition to allow for use and disclosure in certain specified circumstances; and

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penalties for unauthorised disclosures of protected information.

Summary of new law

Overview of the secrecy framework

Objectives of the secrecy framework

11.2 Under the Bill, the secrecy framework is intended to balance the need to protect personal and confidential information that entities provide to the ACNC with the need to enable disclosure of that information where it is necessary to disclose that information in accordance with the objects of this Bill. [Section 150-5]

11.3 Engagement with and the trust of the not-for-profit (NFP) sector could be at risk if responsible entities and registered entities do not have confidence that their information is being handled appropriately, which would, in turn obstruct the ACNC in undertaking its powers and functions under the Bill. [Paragraph 150-5(a)]

11.4 However, as the NFP sector receives substantial assistance through taxpayer funded concessions and public donations, the information provided to the ACNC needs to be disclosed to the public in certain circumstances in order to promote transparency and accountability of the sector and ensure public confidence that taxpayer resources and public donations are being used appropriately. [Paragraph 150-5(b)]

Structure of the secrecy framework

11.5 Under the Bill, the secrecy framework has been designed so that where certain entities have access to personal or confidential information, obtained by the ACNC in accordance with the Bill, they are subject to a general prohibition on the use and disclosure of that information.

11.6 However, to ensure the ACNC is able to fulfil its powers and functions under the Bill, including promoting good governance, transparency and accountability, and acting as a 'one-stop shop' regulator for the NFP sector, disclosure of the protected information is permitted in specified circumstances detailed within the Bill.

11.7 By structuring the secrecy framework in this manner, it ensures that it is fundamentally clear to those entities handling protected information that the disclosure of that information is prohibited in all circumstances except where it is clearly set out in the Bill that it may be disclosed and for what purpose.

Interaction with other privacy and secrecy regimes

11.8 Whilst the secrecy framework in the Bill provides for an overarching protection of information provided to the ACNC, that information may also be protected under other related privacy or secrecy regimes.

11.9 For example, information that is provided to the Commissioner of Taxation under a taxation law is protected under the tax secrecy framework within Division 355 in Schedule 1 to the Tax Administration Act 1953 .

11.10 Similarly, the Office of the Australian Information Commissioner also protects information that is personal and relates to an individual under the Privacy Act 1988 (Privacy Act). In particular, the Information Privacy Principles under the Privacy Act apply to the ACNC and set out the standards for the handling and protecting an individual's personal information.

11.11 Of note, Information Privacy Principle 11 operates to limit the disclosure of personal information by a Government agency, except to the extent that disclosure is required or authorised by or under law. Consequently, in the specified circumstances set out in the Bill where disclosure of protected information is authorised, the secrecy framework is consistent with the requirements under Information Privacy Principle 11 and the Privacy Act.

11.12 There is also other Commonwealth legislation that overrides the secrecy framework in the Bill and authorises disclosures in limited circumstances. These laws either permit particular entities such as the Auditor-General or Commonwealth Ombudsman to access protected information or provide immunity for ACNC officers and other entities who are compelled to disclose information that is protected under the Bill for circumstances specified in the following provisions (this list is not exhaustive):

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sections 32 and 33 of the Auditor-General Act 1997 ;

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section 9 of the Ombudsman Act 1976 ;

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section 44 of the Privacy Act;

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section 12 of the Parliamentary Privileges Act 1987 ; and

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schedule 6 to the Anti-Terrorism Act (No. 2) 2005 .

Evidential burden

11.13 Under this Bill, there are certain exceptions that apply to the general prohibition on the use, disclosure and on-disclosure of information protected under the secrecy framework.

11.14 Where an entity seeks to rely on these exceptions, the entity will bear the evidential burden to prove that they used the information or disclosed/on-disclosed the information in accordance with that exception.

11.15 Under subsection 13.3(3) of the Criminal Code , 'evidential burden' means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

11.16 In the context of the ACNC secrecy framework, this would mean that an entity seeking to rely on one of the exceptions will need to point to evidence, by way of a document or email, that suggests a reasonable possibility that they were entitled to use the information or disclose/on-disclose the information under the Bill.

11.17 It is common amongst Commonwealth secrecy regimes to place the evidential burden on the defendant where the defendant seeks to rely on an exception or defence to the general prohibition on disclosure of information (an offence-specific defence).

11.18 This is consistent with the Attorney-General's Department's publication entitled A guide to framing Commonwealth offences, infringement notices and enforcement powers where it states that an evidential burden of proof should generally apply to a defence where there is an offence-specific defence. In these situations, the defendant is in the best position to provide evidence justifying why they undertook the act that triggered the offence-specific defence.

11.19 Therefore, where an entity does disclose or use information they will be aware of the general prohibition and will be seeking to use the offence-specific defence that the disclosure was an authorised disclosure. In that case, placing the evidential burden on the entity is justified as they will be able to point to the authorised disclosure provision they relied upon and provide emails or written directions which support the use of the authorised disclosure.

11.20 Despite the evidential burden resting on the entity, the prosecution retains the 'legal burden' of proof and is required to prove each element of an offence beyond reasonable doubt, consistent with the requirements of Article 14 of the International Covenant on Civil and Political Rights .

Detailed explanation of new law

Scope of the secrecy framework

Information protected under the secrecy framework

11.21 Under the Bill, the information that is protected under the secrecy framework is protected ACNC information .

11.22 This is defined in the Bill to include all information that was disclosed to, or obtained by an ACNC officer for the purposes of the Bill where the information relates to the affairs of an entity other than the ACNC officer and where the information identifies, or is reasonably capable of being used to identify an entity. [Section 150-15]

11.23 For example, protected ACNC information includes information that is not currently in the public domain and may have been provided to the ACNC on a registration or compliance document such as an application form for registration or under a duty to notify as explained in Chapter 7 - Duty to notify.

11.24 Personal information that is provided to the ACNC related to responsible entities, management, and employees of a registered entity is also protected ACNC information and as it pertains to an individual is also subject to the Information Privacy Principles under the Privacy Act.

11.25 Information that is either in the public domain or in no way identifies an entity, or is reasonably capable of being used to identify an entity, is not considered protected ACNC information.

11.26 Information that has been made public through the ACNC Register under Division 40 is not considered protected ACNC information after it has been displayed on the ACNC website.

Entities subject to the secrecy framework

11.27 Under the Bill, Part 7-1 applies to ACNC officers (as defined under section 900-5) but it also extends to other entities and refers to them within Part 7-1 as if they were ACNC officers. [Section 150-10]

11.28 These non-ACNC officer entities that are within scope of the secrecy framework include:

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an entity engaged to provide services relating to the ACNC [paragraph 150-10(a)] ;

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an individual employed by an entity referred to in the dot point above [paragraph 150-10(b)] ;

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an individual appointed or employed by, or performing services for, the Commonwealth or an authority of the Commonwealth that is performing functions or exercising powers under or for the purposes of the Bill [paragraph 150-10(c)] ; or

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a member of the Advisory Board [paragraph 150 10(d)] .

Example 11.33

Todd is an IT contractor who has recently been contracted by the ACNC to develop an internet based product. Todd is a non-ACNC officer entity that is subject to the secrecy framework under the Bill.

Example 11.34

Johan is an IT sub-contractor and works for Todd (as per Example 11.1) and is supporting him in testing his internet based product. As he is an individual employed by Todd to provide services relating to the Commission, he is also a non-ACNC officer entity that is subject to the secrecy framework under the Bill.

Example 11.35

Gerald works for the Department of Families, Housing, Community Services and Indigenous Affairs. However, as part of a secondment program he is working for the ACNC and performing audits on charities. Gerald is a non-ACNC officer entity that is subject to the secrecy framework under this Bill.

Example 11.36

Ashley is a member of the Advisory Board and appointed under Division 140 of this Bill. Ashley provides advice and makes recommendations to the ACNC Commissioner in relation to the ACNC Commissioner's functions under the Bill and is therefore a non-ACNC officer entity that is subject to the secrecy framework under the Bill.

11.29 In addition to the non-ACNC officers that are covered by section 150-10, the secrecy framework also applies, to some extent, to entities that acquire protected ACNC information in accordance with an authorised disclosure detailed in the Bill.

11.30 In that situation, they are subject to a prohibition on on-disclosure of that information except where allowed under Subdivision 150-D. This is discussed further at paragraph 11.64 of this Chapter.

Example 11.37

Eliz works for the ATO and in the performance of her duties acquired protected ACNC information through an authorised disclosure under section 150-40 for the purpose of administering the tax law.

Whilst Eliz is not an ACNC officer or an entity covered by section 150-10, she is still subject to the secrecy framework as she is prohibited from disclosing or using the protected ACNC information pursuant to Subdivision 150-D.

General prohibition on use or disclosure of protected ACNC information

11.31 The secrecy framework in the Bill prohibits the use or disclosure of protected ACNC information by an entity (as described at paragraph 11.27 of this Chapter). [Section 150-25]

11.32 The unauthorised use or disclosure of protected ACNC information by an entity is an offence and a court can impose upon an individual a penalty of imprisonment of up to two years or 120 penalty units or both. [Subsection 150-25(1)]

11.33 The Crimes Act 1914 prescribes rules for converting penalties for natural persons into a penalty that applies to a body corporate.

Meaning of 'use' and 'disclosure'

11.34 Under this Chapter, the terms 'use' and 'disclosure' are intended to take their ordinary meaning.

11.35 The term 'use' includes situations where an ACNC officer has access to the protected ACNC information and records the information, takes the information or recalls the information and takes advantage of the information or exploits it for some kind of outcome.

Example 11.38

Harry has access to protected ACNC information, he writes down sensitive financial information about a charity from a file and puts it to use by changing his share portfolio to account for the information he has used.

By exploiting the information for a personal benefit and altering his share portfolio, Harry has 'used' the protected ACNC information in contravention of the general prohibition under this Bill.

11.36 The term 'disclosure' includes situations where an ACNC officer has access to the protected ACNC information and then divulges or releases that information to another entity.

11.37 Information may be disclosed by publishing, writing, speaking, transmitting or conveying it in any form that enables the other entity to identify the entity to which the information relates.

Example 11.39

Finn has access to protected ACNC information; he then publishes the information on his blog which is publicly available on the internet.

By publishing the information on the internet, which can be viewed by the public, Finn has disclosed the protected ACNC information in contravention of the general prohibition under this Bill.

Exceptions to the general prohibition on use or disclosure of protected ACNC information

11.38 The general prohibition operates to make it an offence to use or disclose the information, however, in order to give effect to the balance between protection of information and disclosure for the objects of the Bill, the secrecy framework permits use or disclosure of information in certain circumstances. [Subparagraph 150-25(1)(c)(i) and subsection 150-25(3)]

11.39 These exceptions to the general prohibition which give rise to authorised use or disclosures include:

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disclosure to the entity to whom the information relates [subparagraph 150-25 (1)(c)(i) and subsection 150-25(2)] ;

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disclosure or use in the performance of duties under the Bill [section 150-30] ;

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disclosure on the Australian Charities and Not-for-profits Commission Register (ACN Register) to achieve the objects of the Bill [section 150-35] ;

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disclosure to an Australian government agency [section 150-40] ;

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disclosure or use with consent of the entity [section 150-45] ; and

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disclosure of information lawfully made available to the public [section 150-50] .

Disclosure to the entity to whom the information relates

11.40 An entity covered by the general prohibition may disclose the protected ACNC information, where that information is disclosed to a set of entities to which the information relates, or are closely linked to the entity to whom the information relates. These entities include:

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the entity to whom the information relates [paragraph 150-25(2)(a)] ;

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a relevant agent of the entity to whom the information relates [paragraph 150-25(2)(b)] ; or

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a responsible entity of a registered entity to whom the information relates [paragraph 150-25(2)(c)] .

Example 11.40

Help the Children Ltd is a charity and is a registered entity under the ACNC. The company requests the ACNC to provide it with certain financial information it provided in the previous year. The financial information is protected ACNC information under the Bill.

However, as the entity that provided the protected ACNC information is the entity requesting that information, the ACNC officer responsible may disclose that information to the company.

Example 11.41

Boris is a registered tax agent and is the tax agent for the recently established Citytown Public Hospital. He needs information on the endorsement process and requests this information from the ACNC for the purpose of filling out tax returns and interacting with the Commissioner of Taxation.

Because Boris is an agent of the public hospital, to whom the protected ACNC information relates, and Boris is the relevant agent for that information, the ACNC officer may disclose that information to Boris.

Example 11.42

Philip is the responsible entity of the 'Fix Poverty' charity which is a registered entity under the ACNC. He needs some information from the ACNC which the charity provided in previous years.

The information provided is protected ACNC information, but because Philip is the responsible entity of the registered entity, the ACNC officer responsible may disclose that information to Philip.

Disclosure or use in the performance of duties under the Bill

11.41 An ACNC officer may use or disclose protected ACNC information where the use or disclosure is in the ordinary course of performing their duties under the Bill.

11.42 This exception covers the performance of duties that are necessary for the administration of any powers or functions granted to an ACNC officer under the Bill.

11.43 This exception also allows ACNC officers to disclose information amongst each other within the ACNC or use information in order to perform the powers or functions detailed within the Bill.

Example 11.43

Cherry is an ACNC officer who is responsible for processing registration forms for charities applying to be registered entities under this Bill. In order to process a particular application Cherry needs to talk to Pourus in the compliance area about the charity involved.

Because Cherry is performing her duties under the Bill by processing registration applications she is able to use the protected ACNC information and is able to disclose that information to Pourus who is also performing his duties under the Bill.

Example 11.44

Edmund is an ACNC officer in the compliance area of the ACNC and is responsible for auditing registered entities. Edmund has been assigned five cases, however, he sees that his colleague has been assigned a case involving a famous celebrity.

Edmund decides to have a look through his colleagues 'celebrity' file and then at lunch speaks to another ACNC colleague, Tony, about the case details.

Even though both Edmund and Tony are ACNC officers, and even though Edmund is involved in compliance, the disclosure of the 'celebrity' file to Tony was not in the ordinary course of Edmund's duties as he was not assigned to the file and accessed the material outside of his normal duties. In this situation, Edmund would have committed an offence under section 150-25 of the Bill.

11.44 This exception also allows for use and disclosure of protected ACNC information by an ACNC officer for the purpose of proceedings related to the Bill. This means that under this exception ACNC officers would be able to use information or disclose the information to courts, external legal advisers, the Commonwealth Director of Public Prosecutions or the Administrative Appeals Tribunal (AAT) for the purpose of proceedings that are related to the Bill.

Example 11.45

A registered entity has its registration revoked by the ACNC Commissioner under this Bill. The entity goes through the objection process but at the end wishes to challenge the ACNC Commissioner's objection decision and have it reviewed by the AAT.

Under this exception, the relevant ACNC officer can disclose the relevant protected ACNC information to the AAT for the purpose of having the decision reviewed in accordance with the review and appeals framework under the Bill.

11.45 Despite the operation of this exception, an ACNC officer cannot be compelled to disclose protected ACNC information to a court or tribunal or to produce to a court or tribunal documents containing protected ACNC information except where it is necessary to do so for the purposes of giving effect to this Act. [Section 150-20]

11.46 This limit on the disclosures to courts and tribunals recognises the potential loss of privacy that would occur in the release of protected ACNC information in an open court and ensures that where it is necessary for information to be provided to a court or tribunal it is done in a manner that is consistent with the Bill.

Disclosure on the ACN Register to achieve the objects of the Bill

11.47 Under this exception, an ACNC officer may disclose protected ACNC information to the public through the ACN Register in accordance with Division 40 of this Bill. [Paragraph 150-35(a)]

11.48 The disclosure is authorised under this exception only where it is required under section 40-5(1) of the Bill and is for the purpose of including on the ACN Register. [Paragraph 150-35(b)]

11.49 Once the protected ACNC information has been disclosed on the Register under this exception, the information will be considered in the public domain and further disclosure of that information, or on-disclosure of that information will be permitted by other exceptions in sections 150-50 and 150-65 of the Bill which are discussed below.

11.50 Where the information to be disclosed under this exception is personal information (as defined under the Privacy Act), then the ACNC officer making the disclosure must consider whether the disclosure is necessary to achieve the objects of the Bill. [Paragraph 150-35(c)]

11.51 This provides an additional safeguard against arbitrary interference with privacy and will ensure that personal information is only disclosed where it is required and justified.

Disclosure to an Australian government agency

11.52 A disclosure of protected ACNC information is authorised under this exception where it is made to an Australian government agency for the purpose of enabling them to fulfil their powers and functions and where it is reasonably necessary to promote the objects of the Bill. [Section 150-40]

11.53 The intention of this exception is to enable the ACNC to fulfil its role under the Bill as a 'one-stop shop' regulator for the NFP sector by sharing relevant information with other government departments and agencies.

11.54 For registered charities under this Bill this will then produce cost efficiencies as the required information is provided and collected on a single occasion, instead of on multiple occasions and interaction with government departments and agencies can be more efficient and timely.

Example 11.46

The ACNC may provide a 'seamless' application process for entities applying to be a registered entity and applying for an Australian Business Number (ABN) at the same time.

This interaction with the Australian Business Registrar will be authorised under this exception and will ensure that 'behind the scenes' there is a process for disclosure or relevant information for efficient registration of the ABN and the registered entity.

11.55 When considering whether disclosure is authorised under this provision, the ACNC officer concerned must be satisfied that the disclosure is necessary for the purposes of enabling or assisting the government department or agency to perform or exercise a particularly function or power of the agency which is reasonably necessary to promote the objects of the Bill. [Paragraphs 150-40(b) and 150-40(c)]

11.56 This consideration ensures that only information that is required by the government department or agency to meet the objects of this Bill will be disclosed. This provides an additional safeguard against arbitrary interference with privacy and ensures that protected ACNC information is handled appropriately.

Meaning of an Australian government agency under this exception

11.57 The disclosure to an Australian government agency under this provision references the definition of 'Australian government agency' under the Bill and will cover Commonwealth, State and Territory governments as well as an authority of the Commonwealth, State and Territory. [Paragraph 150-40(a) and section 900-5]

11.58 The Commonwealth, State and Territory authorities that are expected to have information disclosed under these provisions will be those that administer laws using registration as a pre-condition to entitlements and those that administer laws that protect and enhance the trust and confidence in NFP entities.

Disclosure or use with consent

11.59 Where a responsible entity or registered entity provides their consent to an ACNC officer in writing, then disclosure of the protected ACNC information relating to that responsible entity or registered entity is authorised to the extent that it is consistent with the purpose for which the consent was given by the relevant entity. [Section 150-45]

Example 11.47

Freddy is a responsible entity for the 'HumaNature' charity which is a registered entity under this Bill. Freddy fills out a consent form and signs it on behalf of HumaNature to allow the ACNC to disclose protected ACNC information, in respect to HumaNature, to the Commonwealth Department of Human Services for a grant application.

Based on the consent of the responsible entity, the ACNC officer concerned may disclose the protected ACNC information relating to HumaNature to Department of Human Services for the purpose of the grant application.

Disclosure of information lawfully made available to the public

11.60 Where information is in the public domain it is accessible by everyone and therefore does not retain its confidential nature.

11.61 Therefore under this exception, where protected ACNC information has lawfully been made available to the public, an ACNC officer may disclose that information. [Section 150-50]

11.62 Information that has been made available to the public means publicly available information that would include the internet, newspapers, open court records, the electoral role and would also include information that the public may access by way of a fee structure.

11.63 However, despite the application of this exception, the general prohibition on use and disclosure of protected ACNC information applies so that an ACNC officer may not use non-public information to supplement or qualify the information that has been lawfully made available to the public.

General prohibition on the on-disclosure of protected ACNC information

11.64 Subdivision 150-D provides that where an entity acquires protected ACNC information under an authorised disclosure provision in the Bill there is a general prohibition on the on-disclosure of that information to another entity or use of that information. [Subsection 150-55(1)]

11.65 The general prohibition on the use of protected ACNC information by entities that have acquired the information from an ACNC officer under the Bill is in place to ensure that those entities that acquire the information must use the information in a manner that is consistent with the original purpose for the disclosure. This is explained further below at paragraph 11.72 of this Chapter.

11.66 The general prohibition on the on-disclosure of protected ACNC information operates to restrict the flow of protected information from entities that have acquired the information from an ACNC officer under the Bill. This prohibition applies to an entity where:

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the entity concerned is not an ACNC officer as determined under this Part [paragraph 150 - 55(1)(b)] ; and

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the entity concerned acquired protected ACNC information and acquired it under an exception to this Bill [paragraphs 150-55(1)(a) and 150-55(1)(c)] .

Example 11.48

Bruce works for the ATO and in the course of performing his duties as a taxation officer acquired protected ACNC information about the 'Healthy Touch' charity under section 150-40 of the Bill for the purpose of administering a taxation law.

During lunch he discloses to his friend details of the charity and sensitive information about financial matters. Under this provision Bruce has contravened the general prohibition on on-disclosure and has committed an offence.

11.67 Where an entity contravenes this provision by on-disclosing or using the protected ACNC information, it constitutes a criminal offence. The maximum penalty for this offence is 2 years imprisonment or 120 penalty units or both. [Subsection 150-55(1)]

11.68 For the purposes of Part 7-1, 'on-disclosure' and 'use' has the same meaning as 'disclosure' and 'use' as discussed at paragraph 11.34 of this Chapter.

Exceptions to the general prohibition on the on-disclosure of protected ACNC information

11.69 As with the general prohibition on use or disclosure for ACNC officers, on-disclosure and use of the protected ACNC information acquired by an entity will be authorised where the on-disclosure or use falls under an exception in the Bill. [Subparagraph 150-55(1)(d)(i) and subsection 150-55(3)]

11.70 These exceptions to the general prohibition on the use and on-disclosure of protected ACNC information acquired by entity which give rise to an 'authorised on-disclosure' include:

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on-disclosure to the entity to whom the information relates [Subparagraph 15-55(1)(d)(i) and subsection 150-55(2)] ;

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on-disclosure or use of information for the original purpose or in connection with the original purpose that it was disclosed [Section 150-60] ; and

•

on-disclosure of information that has lawfully been made available to the public [Section 150-65] .

On-disclosure to the entity to whom the information relates

11.71 This exception is identical to the exception that applies to disclosure or use of information by ACNC officers in subparagraph 150-25(1)(c)(i). The intention being that an entity covered by the general prohibition on on-disclosure of information may disclose the protected ACNC information, where that information is disclosed to a set of entities to whom the information relates, or are closely linked to the entity to whom the information relates. These entities include:

•

the entity to whom the information relates [paragraph 150-55(2)(a)] ;

•

A relevant agent of the entity to whom the information relates [paragraph 150-55(2)(b)] ; or

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a responsible entity of a registered entity to whom the information relates [paragraph 150-55(2)(c)] .

On-disclosure or use of information for the original purpose or in connection with the original purpose that it was disclosed

11.72 This exception allows entities that acquire protected ACNC information for a purpose specified in an exception in Subdivision 150-C to use the information or on-disclose the information where the use or on-disclosure is for the original purpose, or in connection with the original purpose for which the information was provided to the entity. [Subsection 150-60(1)]

11.73 Under this exception, the 'original purpose' means the purpose for which the protected ACNC information was initially disclosed by an ACNC officer under an exception in Subdivision 150-C.

Example 11.49

Linda, an ACNC officer, discloses protected ACNC information to Ian, an official from the Department of Health and Ageing under section 150-40 for the purpose of undertaking a funding program related to aged care services run by the Department.

Ian can only use that information for the purpose of undertaking the funding program run by the Department.

Example 11.50

Patrick, an ACNC officer, discloses protected ACNC information to Lauren, an official from ASIC under section 150-40 for the purpose of enforcing a law that ASIC administers that may result in a criminal offence.

Lauren can on-disclose that information within ASIC to other sections that directly facilitate building the case as the on-disclosure would be for the purpose of enforcing a law that ASIC administers that may result in a criminal offence.

11.74 Under this exception, 'in connection with the original purpose' means that the use or on-disclosure is incidental to, or arises as a consequence of, any action taken in pursuance of the original purpose.

Example 11.51

As per Example 11.17, where Ian is undertaking the funding program he is asked to quantify the costs associated with the program and provide a brief to the Department of Finance and Deregulation about whether the spending has been worthwhile. Ian uses some of the information provided by the ACNC to develop the brief for the Department of Finance.

In that situation, whilst the use of the information for the brief is not directly for the original purpose of undertaking the funding program, it is in connection with the original purpose as the use is a consequence of undertaking the funding program and facilitates undertaking the funding program by meeting evaluation requirements for further funding.

11.75 Under the Bill, it is made it clear that, without limiting the meaning of 'in connection with the original purpose', it is intended that use or on-disclosure will be considered 'in connection with the original purpose' where the use is by or disclosure is to any entity, court or tribunal and it is for the purpose of criminal, civil or administrative proceedings (including merits review or judicial review) related to the original purpose. [Subsection 150-60(2)]

Example 11.52

As per Example 11.18, where Lauren and her ASIC colleagues have built a case for a potential contravention of a law that ASIC administers which may result in a criminal offence, Lauren will be able to on-disclose the information to the Commonwealth Director of Public Prosecution (CDPP) to enable them to prosecute the offence.

Whilst the original disclosure was for the purpose of ASIC enforcing the law, allowing CDPP to prosecute the offence is in connection with the original purpose and would therefore be covered by the exception.

On-disclosure of information that has lawfully been made available to the public

11.76 This exception is identical to the exception that applies to disclosure of information by ACNC officers in section 150-50.

11.77 The intention being that where protected ACNC information has lawfully been made available to the public, an entity that acquired the protected ACNC information may on-disclose that information. [Section 150-65]