Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) For the purposes of this Act, a Commonwealth record is an exempt record if it contains information or matter of any of the following kinds:
(a) information or matter the disclosure of which under this Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth;
(b) information or matter:
(i) that was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the foreign entity ) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the Commonwealth entity ); and
(ii) which the foreign entity advises the Commonwealth entity is still confidential; and
(iii) the confidentiality of which it would be reasonable to maintain;
(c) information or matter the disclosure of which under this Act would have a substantial adverse effect on the financial or property interests of the Commonwealth or of a Commonwealth institution and would not, on balance, be in the public interest;
(d) information or matter the disclosure of which under this Act would constitute a breach of confidence;
(e) information or matter the disclosure of which under this Act would, or could reasonably be expected to:
(i) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;
(ii) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law; or
(iii) endanger the life or physical safety of any person;
(f) information or matter the disclosure of which under this Act would, or could reasonably be expected to:
(i) prejudice the fair trial of a person or the impartial adjudication of a particular case;
(ii) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or
(iii) prejudice the maintenance or enforcement of lawful methods for the protection of public safety;
(g) information or matter the disclosure of which under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person);
(h) information or matter relating to trade secrets, or any other information or matter having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information or matter were disclosed;
(j) information or matter (other than information or matter referred to in paragraph (h)) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information or matter the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs.
(1A) For the purposes of subparagraph (1)(e)(ii), a confidential source of information in relation to the enforcement or administration of the law includes:
(a) a person who is providing, or has provided, confidential information to the Australian Crime Commission in relation to such a matter; or
(b) a person who is providing, or has provided, confidential information to the Australian Federal Police in relation to such a matter; or
(ba) a person who is providing, or has provided, confidential information to the Inspector of the National Anti - Corruption Commission, or the National Anti - Corruption Commissioner or another staff member of the NACC (within the meaning of the National Anti - Corruption Commission Act 2022 ), in relation to such a matter; or
(c) a person who is, or has been, a witness within the meaning of the Witness Protection Act 1994 under the National Witness Protection Program.
(2) For the purposes of this Act, a Commonwealth record is an exempt record if it is of such a nature that:
(a) it would be privileged from production in legal proceedings on the ground of legal professional privilege; and
(b) disclosure of the record would be contrary to the public interest.
(3) For the purposes of this Act, a Commonwealth record is an exempt record if:
(a) it contains information or matter:
(i) that relates to the personal affairs, or the business or professional affairs, of any person (including a deceased person); or
(ii) that relates to the business, commercial or financial affairs of an organization or undertaking; and
(b) there is in force a law relating to taxation that applies specifically to information or matter of that kind and prohibits persons referred to in that law from disclosing information or matter of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.
(4) In paragraphs (1)(e) and (f) and subsection (3), law means law of the Commonwealth or of a State or Territory.
(4A) For the purposes of this Act, a Commonwealth record is an exempt record if:
(a) it contains information or matter:
(i) that identifies a person as being, or having been, an ASIO employee or an ASIO affiliate; or
(ii) from which the identity of a person referred to in subparagraph (i) could reasonably be inferred, or that could reasonably lead to the identity of such a person being established; and
(b) the information or matter has not been made public by means of broadcasting or reporting proceedings of the Parliament as authorised by the Parliament;
unless the Minister administering section 92 of the Australian Security Intelligence Organisation Act 1979 or the Director - General of Security has consented in writing to the information or matter being made public.
(4B) If:
(a) the consent of the Minister administering section 92 of the Australian Security Intelligence Organisation Act 1979 or the Director - General of Security has been given in relation to information or a matter for the purposes of that section (before, on or after the commencement of this subsection); and
(b) that information or matter is substantially the same as the information or matter referred to in subsection (4A) of this section;
the consent referred to in paragraph (a) of this subsection is taken also to be consent given for the purposes of subsection (4A).
(4C) For the purposes of this Act, a Commonwealth record is an exempt record if:
(a) it contains information or matter:
(i) that identifies a person as being, or having been, a staff member of the Australian Secret Intelligence Service ( ASIS ) (within the meaning of the Intelligence Services Act 2001 ) or an agent of ASIS; or
(ii) from which the identity of a person referred to in subparagraph (i) could reasonably be inferred, or that could reasonably lead to the identity of such a person being established; and
(b) the information or matter has not been made public by means of broadcasting or reporting proceedings of the Parliament as authorised by the Parliament;
unless the responsible Minister for ASIS (within the meaning of the Intelligence Services Act 2001 ) or the Director - General of ASIS has consented in writing to the information or matter being made public.
(4D) If:
(a) the consent of the responsible Minister for ASIS (within the meaning of the Intelligence Services Act 2001 ) or the Director - General of ASIS has been given in relation to information for the purposes of section 41 of that Act (before, on or after the commencement of this subsection); and
(b) that information is substantially the same as the information referred to in subsection (4C) of this section;
the consent referred to in paragraph (a) of this subsection is taken also to be consent given for the purposes of subsection (4C).
(5) A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Commonwealth, a State, the Australian Capital Territory or the Northern Territory or by a local government authority.
(6) A reference in this section to:
(a) the Minister administering section 92 of the Australian Security Intelligence Organisation Act 1979 ; or
(b) the responsible Minister for ASIS (within the meaning of the Intelligence Services Act 2001 );
is a reference only to the most senior such Minister.
Note: A reference to a Minister mentioned in this section may include a reference to a person acting as that Minister (see subsection 19(4) of the Acts Interpretation Act 1901 ).