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Part 4-3—Protecting information under the scheme

Part 4-3 Protecting information under the scheme

Division 1 Simplified outline of this Part

91   Simplified outline of this Part

Certain information about a person or an institution is protected information and can only be obtained, recorded, disclosed or used if this Act authorises that to happen. Broadly, protected information is information about a person or an institution that was obtained by an officer of the scheme for the purposes of the scheme and is held in the records of the Department or the Human Services Department. An example of protected information about a person is information that the person gives in his or her application for redress. An example of protected information about an institution is information that the institution provides in compliance with a request for information made by the Operator under section 25.

This Part sets out when a person is authorised to obtain, record, disclose or use protected information. It also has offences for when a person obtains, records, discloses or uses protected information without authorisation under this Act.

This Part also protects information contained in the assessment framework policy guidelines and sets out when a person is authorised to obtain, record, disclose or use that information.

Division 2 Use and disclosure of protected information

92   Protected information

             (1)  This Division deals with how protected information may be obtained, recorded, disclosed or used under this Act.

             (2)  Protected information is:

                     (a)  information about a person or an institution that:

                              (i)  was provided to, or obtained by, an officer of the scheme for the purposes of the scheme; and

                             (ii)  is or was held in the records of the Department or the Human Services Department; or

                     (b)  information to the effect that there is no information about a person or an institution held in the records of a Department referred to in subparagraph (a)(ii).

93   Main authorisation—obtaining, recording, disclosing or using protected information

             (1)  A person may:

                     (a)  obtain protected information; or

                     (b)  make a record of protected information; or

                     (c)  disclose protected information to another person; or

                     (d)  use protected information;

if:

                     (e)  the obtaining, recording, disclosure or use of the information by the person is done:

                              (i)  for the purposes of the scheme; or

                             (ii)  with the express or implied consent of the person or institution to which the information relates; or

                      (f)  the person believes on reasonable grounds that the obtaining, recording, disclosure or use of the information by the person is necessary to prevent or lessen a serious threat to an individual’s life, health or safety.

             (2)  A person may use protected information to produce information in an aggregated form that does not disclose, either directly or indirectly, information about a particular person or institution.

94   Additional authorisation—Operator disclosing to nominee

                   The Operator may disclose protected information provided by a person who has applied for redress to the nominee of the person.

95   Additional authorisation—Operator disclosing in public interest or for another specified purpose

             (1)  The Operator may disclose protected information that was provided to, or obtained by, an officer of the scheme for the purposes of the scheme if:

                     (a)  the Operator certifies that the disclosure is necessary in the public interest in a particular case or class of cases and the disclosure is to such persons and for such purposes as the Operator determines; or

                     (b)  the disclosure:

                              (i)  is to a person who is expressly or impliedly authorised by the person or institution to which the information relates to obtain it; or

                             (ii)  is to the Chief Executive Centrelink for the purposes of a centrelink program (within the meaning of the Human Services (Centrelink) Act 1997 ); or

                            (iii)  is to the Chief Executive Medicare for the purposes of a medicare program (within the meaning of the Human Services (Medicare) Act 1973 ); or

                            (iv)  is to the head (however described) of a government institution, for the purposes of that institution.

             (2)  A person to whom protected information is disclosed under subsection (1) may:

                     (a)  obtain the information; or

                     (b)  make a record of the information; or

                     (c)  disclose the information to another person; or

                     (d)  use the information;

if the person does so for the purpose for which the information was disclosed to the person under subsection (1).

             (3)  In certifying for the purposes of paragraph (1)(a) or disclosing information for the purposes of subparagraph (1)(b)(iv), the Operator must act in accordance with any rules made for the purposes of subsection (4).

             (4)  The rules may make provision for and in relation to the exercise of either or both of the following:

                     (a)  the Operator’s power to certify for the purposes of paragraph (1)(a);

                     (b)  the Operator’s power under subparagraph (1)(b)(iv) to disclose information to the head of a government institution.

             (5)  If a certificate or determination under paragraph (1)(a) is given or made in writing, the certificate or determination is not a legislative instrument.

96   Additional authorisation—Operator disclosing for law enforcement or child safety or wellbeing

When this section applies

             (1)  This section applies if the Operator is satisfied that disclosure of protected information is reasonably necessary for either of the following purposes (a relevant purpose ):

                     (a)  the enforcement of the criminal law;

                     (b)  the safety or wellbeing of children.

Disclosure by Operator

             (2)  The Operator may disclose the information to a government institution that has functions that relate to the relevant purpose.

             (3)  However, before disclosing protected information that relates to a person who has applied for redress, the Operator must have regard to the impact the disclosure might have on the person.

Disclosure, use etc. by government official

             (4)  If information is disclosed to a government institution under subsection (2), then an employee or officer of the institution (the government official ) may:

                     (a)  obtain the information; or

                     (b)  make a record of the information; or

                     (c)  disclose the information to a person; or

                     (d)  use the information;

but only if the government official does so for a relevant purpose in the official’s capacity as an employee or officer of the government institution.

Conditions

             (5)  The Operator may, in writing, impose conditions to be complied with in relation to protected information disclosed under subsection (2).

             (6)  A person commits an offence if:

                     (a)  the person is subject to a condition under subsection (5); and

                     (b)  the person engages in conduct (within the meaning of the Criminal Code ); and

                     (c)  the person’s conduct breaches the condition.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

             (7)  An instrument under subsection (5) is not a legislative instrument.

97   Additional authorisation—disclosing etc. for a permitted purpose

Disclosure, use etc. by a government official

             (1)  If protected information is disclosed to a government institution, then an employee or officer of the institution (the government official ) may:

                     (a)  obtain the information; or

                     (b)  make a record of the information; or

                     (c)  disclose the information to a person; or

                     (d)  use the information;

if:

                     (e)  the government official does so for any of the following purposes (a permitted purpose ):

                              (i)  the enforcement of the criminal law;

                             (ii)  the safety or wellbeing of children;

                            (iii)  investigatory, disciplinary or employment processes related to the safety or wellbeing of children;

                            (iv)  a purpose prescribed by the rules; and

                      (f)  the government official does so in the official’s capacity as an employee or officer of the government institution; and

                     (g)  a law of the Commonwealth (other than this Part), or of a State or a Territory, does not prohibit the government official from doing so.

Disclosure by a person to a government institution

             (2)  If:

                     (a)  a person is satisfied that disclosure of protected information is reasonably necessary for a permitted purpose; and

                     (b)  a law of the Commonwealth, a State or a Territory requires or permits the person to disclose the information to a government institution that has functions that relate to the permitted purpose;

then the person may disclose the information to the government institution for that purpose.

             (3)  Subsection (2) does not apply if the person is:

                     (a)  an officer of the scheme; or

                     (b)  an employee or officer of a government institution.

Officers of government institutions

             (4)  The rules may prescribe that specified persons are officers of a government institution for the purposes of subsection (1) or paragraph (3)(b).

98   Additional authorisation—person engaged by participating institution disclosing etc. for a specified purpose

             (1)  A person engaged (whether as an employee or otherwise) by a participating institution may:

                     (a)  obtain protected information; or

                     (b)  make a record of protected information; or

                     (c)  disclose protected information to another person; or

                     (d)  use protected information;

if the person believes, on reasonable grounds, that the obtaining, recording, disclosure or use that is proposed to be made of the information by the person is reasonably necessary for one or more of the purposes specified in subsection (2).

             (2)  The purposes for which the person may obtain, record, disclose or use protected information are as follows:

                     (a)  the purpose of the participating institution complying with a request under section 25 to provide information;

                     (b)  the purpose of the participating institution providing a direct personal response to a person under section 54;

                     (c)  the purpose of the participating institution facilitating a claim under an insurance policy;

                     (d)  the purpose of the participating institution undertaking internal investigation and disciplinary procedures.

             (3)  However, before the person discloses information that relates to another person who has applied for redress, the person must have regard to the impact the disclosure might have on the other person.

99   Offence—unauthorised access, recording, disclosure or use of protected information

             (1)  A person commits an offence if:

                     (a)  the person:

                              (i)  obtains information; or

                             (ii)  makes a record of information; or

                            (iii)  discloses information to another person; or

                            (iv)  uses information; and

                     (b)  the person is not authorised or required by or under this Act:

                              (i)  to obtain the information; or

                             (ii)  to make the record of the information; or

                            (iii)  to disclose the information; or

                            (iv)  to use the information; and

                     (c)  the information is protected information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

             (2)  Subsection (1) does not apply if:

                     (a)  the person did not obtain the information under, for the purposes of, or in connection with, the scheme; or

                     (b)  the person had already obtained the information before the person obtained the information under, for the purposes of, or in connection with, the scheme.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code ).

100   Offence—soliciting disclosure of protected information

             (1)  A person commits an offence if:

                     (a)  the person solicits the disclosure of information from an officer of the scheme or another person; and

                     (b)  the disclosure would be in contravention of this Division; and

                     (c)  the information is protected information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

             (2)  A person may commit an offence under subsection (1) whether or not any protected information is actually disclosed.

101   Offence—offering to disclose protected information

             (1)  A person commits an offence if:

                     (a)  the person offers to disclose (whether to a particular person or otherwise) information about another person or an institution; and

                     (b)  the disclosure would be in contravention of this Division; and

                     (c)  the information is protected information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

             (2)  A person commits an offence if:

                     (a)  the person holds himself or herself out as being able to disclose (whether to a particular person or otherwise) information about another person or an institution; and

                     (b)  the disclosure would be in contravention of this Division; and

                     (c)  the information is protected information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

Division 3 Use and disclosure of the assessment framework policy guidelines

102   Main authorisation for obtaining, recording, disclosing or using the assessment framework policy guidelines

                   An officer of the scheme may obtain, make a record of, disclose to another officer of the scheme or use information that is contained in the assessment framework policy guidelines if the officer does so for the purposes of the scheme.

103   Additional authorisation—disclosure and use in accordance with the National Redress Scheme Agreement

             (1)  The Minister or the Operator may disclose information contained in the assessment framework policy guidelines to a person in accordance with the requirements set out in the National Redress Scheme Agreement.

             (2)  A person to whom information is disclosed under subsection (1) may obtain, make a record of, disclose to another person or use that information in accordance with the requirements set out in the National Redress Scheme Agreement.

104   Offence—unauthorised recording, disclosure or use of assessment framework policy guidelines

                   A person commits an offence if:

                     (a)  the person:

                              (i)  obtains information; or

                             (ii)  makes a record of information; or

                            (iii)  discloses information to another person; or

                            (iv)  uses information; and

                     (b)  the person is not authorised or required by or under this Act:

                              (i)  to obtain the information; or

                             (ii)  to make the record of the information; or

                            (iii)  to disclose the information; or

                            (iv)  to use the information; and

                     (c)  the information is contained in the assessment framework policy guidelines.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

Division 4 Other matters

105   Disclosures to a court or tribunal

             (1)  A person must not be required to disclose to a court or tribunal in any civil proceedings:

                     (a)  protected information; or

                     (b)  information that is contained in the assessment framework policy guidelines.

             (2)  Subsection (1) does not apply if the disclosure of the information is for the purposes of giving effect to this Act.

             (3)  For the purposes of subsection (2) (and without limiting that subsection), if the disclosure of the information is in civil proceedings for judicial review of a decision made under this Act, then the disclosure is for the purposes of giving effect to this Act.

             (4)  Subsection (1) does not apply if the disclosure of the information is in civil proceedings under, or arising out of, section 28 (which is about giving false or misleading information, documents or statements to an officer of the scheme).

             (5)  Subsection (1) does not apply if:

                     (a)  the person did not obtain the information under, for the purposes of, or in connection with, the scheme; or

                     (b)  the person had already obtained the information before the person obtained the information under, for the purposes of, or in connection with, the scheme.

             (6)  Protected information and information that is contained in the assessment framework policy guidelines are not to be published by any person, court or tribunal.

106   Disclosing information in good faith

             (1)  This section applies if a person, acting in good faith, discloses information for the purposes of the scheme.

             (2)  The person is not liable to any civil or criminal proceedings, or any disciplinary action, for disclosing the information.

             (3)  In disclosing the information, the person cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct.