Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) ASIC must take all reasonable measures to protect from unauthorised use or disclosure information:
(a) given to it in confidence in or in connection with the performance of its functions or the exercise of its powers under the corporations legislation (other than the excluded provisions); or
(b) that is protected information.
Note: Information given to ASIC under Part 7.5A of the Corporations Act may be taken, for the purpose of this section, to be given in confidence in connection with the performance of ASIC's functions under that Act: see subsections 903A(5) and (6), and 906A(3) and (4), of the Corporations Act.
(1A) Disclosing summaries of information or statistics derived from information is authorised use and disclosure of the information provided that information relating to any particular person cannot be found out from those summaries or statistics.
(2) For the purposes of subsection (1), the disclosure of information as required or permitted by a law of the Commonwealth or a prescribed law of a State or Territory is taken to be authorised use and disclosure of the information.
(2A) Disclosing information to one of the following is authorised use and disclosure of the information:
(a) the Minister;
(b) the Secretary of the Department for the purpose of advising the Minister, or an officer authorised for that purpose;
(ba) the Financial Regulator Assessment Authority;
(c) APRA;
(ca) a Financial Services and Credit Panel;
(cb) the Tax Practitioners Board;
(d) the Reserve Bank of Australia;
(daa) a statutory manager of a body corporate;
(da) the Australian Competition and Consumer Commission;
(e) the Clean Energy Regulator;
(f) the Climate Change Authority;
(g) the Commissioner of Taxation;
(h) a Registrar appointed under any of the following:
(i) section 6 of the Commonwealth Registers Act 2020 ;
(ii) section 1270 of the Corporations Act 2001 ;
(iii) section 212A of the National Consumer Credit Protection Act 2009 ;
(iv) section 62A of the Business Names Registration Act 2011 .
(2B) Disclosing information to a Royal Commission (within the meaning of the Royal Commissions Act 1902 ) is authorised use and disclosure of the information.
(2C) The Chairperson may impose conditions to be complied with in relation to information disclosed under subsection (2B).
(2D) If the Chairperson is satisfied that:
(a) information is obtained by ASIC in circumstances described in subsection (2E); and
(b) the information is:
(i) about how an audit of a company, registered scheme, registrable superannuation entity or disclosing entity was conducted by an Australian auditor; or
(ii) about the company's, scheme's or entity's compliance with the requirements in Chapter 2M of the Corporations Act to prepare financial statements and reports, or with the continuous disclosure requirements of sections 674, 674A, 675 and 675A of the Corporations Act; and
(c) the information should be disclosed to the company, to the responsible entity of the registered scheme, to the RSE licensee for the registrable superannuation entity, or to the disclosing entity, in order to assist the company, scheme or entity to properly manage its affairs;
the disclosure of the information, by a person (the authorised person ) whom the Chairperson authorises for the purpose, is taken to be authorised use and disclosure of the information if the information is disclosed to the directors, the audit committee, or a senior manager, of the company, responsible entity, RSE licensee or disclosing entity.
(2E) For the purposes of paragraph (2D)(a), the circumstances are that the information is obtained by ASIC while exercising its powers or functions:
(a) in relation to audit - related matters ( Corporations Act audit requirements ) under Chapter 2M, Chapter 5C, Part 7.8, Part 9.2 or Part 9.2A of the Corporations Act or under other provisions of that Act that relate to that Chapter or that Part; or
(b) for the purposes of ascertaining compliance with Corporations Act audit requirements; or
(c) in relation to:
(i) an alleged or suspected contravention of Corporations Act audit requirements; or
(ii) an alleged or suspected contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, being a contravention that relates to an audit matter and that either concerns the management or affairs of a body corporate or involves fraud or dishonesty and relates to a body corporate; or
(d) for the purposes of an investigation under Division 1 of Part 3 of this Act relating to a contravention referred to in paragraph (c).
(2F) The authorised person must not disclose information about how an audit of a company, registered scheme, registrable superannuation entity or disclosing entity was conducted by an Australian auditor unless, at least 7 days before disclosing the information, the authorised person notifies the Australian auditor of the proposed disclosure.
(2G) If the authorised person discloses information only to a senior manager of the company, responsible entity, RSE licensee or disclosing entity, the authorised person must, as soon as possible after making the disclosure, provide a copy of the disclosure to the directors and audit committee of the company, responsible entity, RSE licensee or disclosing entity.
(3) For the purposes of subsection (1), the disclosure of information by a person for the purposes of:
(a) performing the person's functions as:
(i) a member, staff member or ASIC delegate; or
(ii) a person who is acting as a member or staff member or who is authorised to perform or exercise a function or power of, or on behalf of, ASIC; or
(b) the performance of functions or services by the person by way of assisting an ASIC delegate;
is taken to be authorised use and disclosure of the information.
(3AA) For the purposes of subsection (1), the disclosure of information by a person to enable or assist the performance of functions, or exercise of powers, by a home regulator or a host regulator for a passport fund under the Memorandum of Cooperation is authorised use and disclosure of the information.
(3A) Using or disclosing information in accordance with the consent of the person who provided the information is authorised use and disclosure of the information.
(4) Where the Chairperson is satisfied that particular information:
(a) will enable or assist an agency, being the Takeovers Panel, the Disciplinary Board, the FRC, the Review Board or any other agency within the meaning of the Freedom of Information Act 1982 , to perform or exercise any of the agency's functions or powers; or
(aa) will enable or assist:
(i) the operator of the AFCA scheme; or
(ia) the CSLR operator; or
(ii) the Australian Financial Institutions Commission;
to perform any of its functions or powers; or
(ab) will enable or assist an officer of the Commonwealth Attorney - General's Department who is in the office known as the Office of Law Enforcement Co - ordination to perform any of his or her functions or powers; or
(b) will enable or assist the government, or an agency, of a State or Territory to perform a function or exercise a power; or
(c) will enable or assist a government, or an agency, of a foreign country to perform a function, or exercise a power, conferred by a law in force in that foreign country; or
(ca) will enable or assist a foreign body, although not an agency of a foreign country, to perform a regulatory function, or to exercise a related power, conferred on the body by or under a law in force in that foreign country; or
(cb) will enable or assist an international business regulator to perform its functions or exercise its powers; or
(d) will enable or assist:
(i) a prescribed professional disciplinary body to perform one of its functions; or
(ii) another prescribed body to perform a prescribed function in relation to registered liquidators; or
(e) will enable or assist a committee convened under Part 2 of Schedule 2 to the Corporations Act to perform its functions under the corporations legislation;
the disclosure of the information to the agency, government, officer, body or committee by a person whom the Chairperson authorises for the purpose is taken to be authorised use and disclosure of the information.
(4A) The Chairperson may impose conditions to be complied with in relation to information disclosed under subsection (4).
(4B) The disclosure of information to a body corporate specified in regulations under subsection (4C) (including a body corporate that is a foreign company) is authorised use and disclosure of the information if:
(a) the Chairperson is satisfied that the information will enable or assist the body corporate to monitor compliance with, enforce, or perform functions or exercise powers under:
(i) the Corporations Act; or
(iaa) the business law of a State that is not in this jurisdiction; or
(ia) a foreign business law; or
(ii) the operating rules of the body corporate; and
(b) the disclosure is by a person authorised by the Chairperson for the purpose.
(4C) The regulations may specify a body corporate for the purposes of subsection (4B) if, and only if, the body corporate:
(a) conducts, or is involved in the supervision of, a financial market; or
(b) is a body corporate that holds an Australian CS facility licence; or
(c) is a body corporate that holds an Australian derivative trade repository licence or that operates a prescribed derivative trade repository.
(4D) The Chairperson may impose conditions to be complied with by a body corporate and its officers, employees and agents in relation to information disclosed to the body corporate under subsection (4B).
(4E) A person must not intentionally or recklessly fail to comply with a condition imposed under subsection (4D).
Penalty: 2 years imprisonment.
(4EA) If ASIC discloses information to a disciplinary body under subparagraph (4)(d)(i), the body or a member of the body:
(a) must not disclose the information to any other person; and
(b) must not use the information for any purpose other than for deciding whether or not to take disciplinary or other action or for taking that action.
Penalty: 2 years imprisonment.
(4EB) If ASIC discloses information to a prescribed body under subparagraph (4)(d)(ii), the body or a member of the body:
(a) must not disclose the information to any other person; and
(b) must not use the information for any purpose other than the performance of the prescribed functions in relation to registered liquidators.
Penalty: 2 years imprisonment.
(4F) If information is disclosed to a body corporate under subsection (4B), the body corporate, or an officer, employee or agent of the body corporate, must not intentionally or recklessly:
(a) disclose the information to a person who is not an officer, employee or agent of the body corporate; or
(b) use the information.
Penalty: 2 years imprisonment.
(4FA) Subsection (4F) does not apply to the extent that:
(a) the person has the written consent of the Chairperson; or
(b) the information is used for the purpose of monitoring compliance with, enforcing, or performing functions or exercising powers under:
(i) the Corporations Act; or
(ii) the business law of a State that is not in this jurisdiction; or
(iii) a foreign business law; or
(iv) the operating rules (if any), of the body corporate.
Note: A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code .
(5) The Chairperson may delegate all or any of his or her functions and powers under subsection (2C), (4), (4A), (4B), (4D) or (4FA) to a member or staff member.
(5A) Regulations made for the purpose of this section may specify uses of information and disclosures of information that are authorised uses and authorised disclosures for the purposes of this section.
(6) Nothing in any of subsections (1A), (2), (2A), (2B), (2C), (3), (4), (4B) and (5) limits:
(a) anything else in any of those subsections; or
(b) what may otherwise constitute, for the purposes of subsection (1), authorised use or disclosure of information.
(7) A person (the officer ) commits an offence if:
(a) the officer is or has been:
(i) a member of ASIC; or
(ii) a staff member; or
(iii) a Commonwealth officer within the meaning of the Crimes Act 1914 ; and
(b) the officer intentionally or recklessly, and directly or indirectly:
(i) discloses information to any person or to a court; or
(ii) produces a document to any person or to a court; and
(c) if subparagraph (b)(i) applies--the information is protected information disclosed to, or obtained by, ASIC for the purposes of a function (a FAR - related function ) conferred on ASIC by:
(i) the Financial Accountability Regime Act 2023 ; or
(ii) the Financial Accountability Regime (Consequential Amendments) Act 2023 ; and
(d) if subparagraph (b)(ii) applies--the document:
(i) is protected information and was given or produced to ASIC for the purposes of a FAR - related function; or
(ii) contains protected information disclosed to, or obtained by, ASIC for the purposes of a FAR - related function; and
(e) the officer acquired the information, or has or had access to the document, as the case may be, in the course of the officer's duties as a member of ASIC, a staff member or a Commonwealth officer within the meaning of the Crimes Act 1914 .
Penalty: Imprisonment for 2 years.
(7A) Subsection (7) does not apply if the disclosure or production constitutes authorised disclosure of the protected information for the purposes of subsection (1).
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code ).
(8) A document is an exempt document for the purposes of section 38 of the Freedom of Information Act 1982 if the document:
(a) is protected information and was given or produced to ASIC; or
(b) contains protected information disclosed to, or obtained by, ASIC;
for the purposes of a function conferred on ASIC by:
(c) the Financial Accountability Regime Act 2023 ; or
(d) the Financial Accountability Regime (Consequential Amendments) Act 2023 .
(9) In this section:
" Income Tax Assessment Act" means the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997 .
"protected information" means information disclosed or obtained, or a document given or produced, (whether before or after the commencement of this section), for the purposes of a function in section 12A and relating to the affairs of:
(a) a body or person regulated by ASIC; or
(b) a body corporate (including a body corporate that has ceased to exist) that has at any time been, or is, related (within the meaning of the Corporations Act) to a body regulated by ASIC; or
(c) a person who has been, is, or proposes to be, a customer of a body or person regulated by ASIC;
other than information that has already been lawfully made available to the public from other sources.
"registrable superannuation entity" has the same meaning as in Chapter 2M of the Corporations Act 2001 .
"RSA Act" means the Retirement Savings Accounts Act 1997 .
"SIS Act" means the Superannuation Industry (Supervision) Act 1993 .