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Part 7—Information sharing and confidentiality etc.

Part 7 Information sharing and confidentiality etc.

Division 1 Introduction

55   Simplified outline of this Part

Certain information must be shared by the Commissioner and Secretary for the purposes of their functions or powers. The Commissioner may also be required by the Minister to prepare reports, or give information, about matters relating to the performance of the Commissioner’s functions.

The Commissioner may make specified information about an aged care service publicly available but that information must not include personal information.

Information acquired under, or for the purposes of, this Act or the rules will be protected information under this Act if the information:

       (a)     is personal information; or

      (b)     relates to the affairs of an approved provider or service provider of a Commonwealth-funded aged care service.

A person must not make a record of, or use or disclose, protected information except in accordance with Division 4 of this Part. The Commissioner is permitted to disclose protected information in certain circumstances.

Division 2 Information sharing

56   Commissioner must give information to the Secretary in certain circumstances

             (1)  The Commissioner must, in circumstances specified in the rules, give information of a kind specified in the rules to the Secretary for the purposes of the Secretary’s functions or powers.

             (2)  If:

                     (a)  the Secretary requests the Commissioner to give the Secretary information that the Secretary requires for the purposes of the Secretary’s functions or powers; and

                     (b)  the information is available to the Commissioner;

the Commissioner must give the information to the Secretary.

             (3)  Subsection (1) does not limit the information that the Secretary may request under subsection (2).

57   Secretary must give information to the Commissioner on request

                   If:

                     (a)  the Commissioner requests the Secretary to give the Commissioner information that the Commissioner requires for the purposes of the Commissioner’s functions or powers; and

                     (b)  the information is available to the Secretary;

the Secretary must give the information to the Commissioner.

58   Minister may require the Commissioner to prepare reports or give information

Reports

             (1)  The Minister may, by written notice given to the Commissioner, require the Commissioner to:

                     (a)  prepare a report about one or more specified matters relating to the performance of the Commissioner’s functions; and

                     (b)  give the report to the Minister within the period specified in the notice.

Information

             (2)  The Minister may, by written notice given to the Commissioner, require the Commissioner to:

                     (a)  prepare a document setting out specified information relating to the performance of the Commissioner’s functions; and

                     (b)  give the document to the Minister within the period specified in the notice.

Compliance

             (3)  The Commissioner must comply with a requirement under subsection (1) or (2).

Publication of reports and documents

             (4)  The Minister may publish (whether on the internet or otherwise):

                     (a)  a report given to the Minister under subsection (1); or

                     (b)  a document given to the Minister under subsection (2).

Division 3 Making information publicly available

59   Information about an aged care service may be made publicly available

             (1)  The Commissioner may make publicly available the following information about an aged care service:

                     (a)  the name and address of the service;

                     (b)  the number of places included in the service;

                     (c)  the services provided by the service;

                     (d)  the facilities and activities available to care recipients receiving care through the service;

                     (e)  the name of the approved provider of the service;

                      (f)  information about the variety and type of service provided by the approved provider;

                     (g)  information about the service’s status under this Act or the Aged Care Act (for example, the service’s accreditation record);

                     (h)  information about the approved provider’s performance in relation to the provider’s responsibilities under this Act or the Aged Care Act;

                      (i)  any action taken, or intended to be taken, under this Act or the rules to protect the welfare of care recipients receiving care through the service, and the reasons for that action;

                      (j)  any other information of a kind specified in the rules for the purposes of this paragraph.

             (2)  Information disclosed under subsection (1) must not include personal information.

Division 4 Protected information

60   Prohibition on use or disclosure etc. of protected information

Offence

             (1)  A person commits an offence if:

                     (a)  the person obtains information in the course of performing functions, or exercising powers, under or for the purposes of this Act or the rules; and

                     (b)  the information is protected information; and

                     (c)  the person:

                              (i)  makes a record of the information; or

                             (ii)  uses the information; or

                            (iii)  discloses the information to another person.

Penalty:  Imprisonment for 2 years.

             (2)  Protected information is information acquired under, or for the purposes of, this Act or the rules that:

                     (a)  is personal information; or

                     (b)  relates to the affairs of an approved provider or a service provider of a Commonwealth-funded aged care service.

Exceptions

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

                     (a)  the person makes the record of, or uses or discloses, the information in the course of performing functions, or exercising powers, under or in relation to:

                              (i)  this Act or the rules; or

                             (ii)  the Aged Care Act or the Aged Care Principles; or

                     (b)  the conduct is authorised by the person or body to whom the information relates; or

                     (c)  the conduct is otherwise authorised under this Act, the rules or any other Act.

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

             (4)  Subsection (1) does not apply to a disclosure of information if:

                     (a)  the disclosure is to the person or body to whom the information relates; or

                     (b)  the disclosure is to the Minister or the Secretary.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (4) (see subsection 13.3(3) of the Criminal Code ).

61   Permitted disclosures of protected information by Commissioner

             (1)  The Commissioner may disclose protected information:

                     (a)  if the Commissioner determines, in writing, that it is necessary in the public interest to disclose the information in a particular case—to such persons and for such purposes as the Commissioner determines; and

                     (b)  to a person who is, in the opinion of the Commissioner, expressly or impliedly authorised by the person or body to whom the information relates to obtain it; and

                     (c)  to the Secretary to assist in the performance of the functions, or the exercise of the powers, of the Secretary; and

                     (d)  to the Chief Executive Medicare for the purposes of payment of subsidies under the Aged Care Act; and

                     (e)  if the Commissioner believes, on reasonable grounds, that the disclosure is necessary to prevent or lessen a serious risk to the safety, health or well-being of an aged care consumer—to such persons as the Commissioner determines, for the purpose of preventing or lessening the risk; and

                      (f)  if the Commissioner believes, on reasonable grounds, that:

                              (i)  a person’s conduct breaches the standards of professional conduct of a profession of which the person is a member; and

                             (ii)  the person should be reported to a body responsible for standards of conduct in the profession;

                            to that body, for the purposes of maintaining standards of professional conduct in the profession; and

                     (g)  if a person has temporarily taken over the provision of care through a particular service to aged care consumers—to the person for the purposes of enabling the person to properly provide that care; and

                     (h)  if the Commissioner believes, on reasonable grounds, that disclosure of the information is necessary for:

                              (i)  the enforcement of the criminal law; or

                             (ii)  the enforcement of a law imposing a pecuniary penalty; or

                            (iii)  the protection of the public revenue;

                            to an agency whose functions include that enforcement or protection, for the purposes of that enforcement or protection; and

                      (i)  to the Aged Care Pricing Commissioner to assist in the performance of the Aged Care Pricing Commissioner’s functions under the Aged Care Act; and

                      (j)  to a person of a kind specified in the rules, for the purposes specified in the rules in relation to persons of that kind.

             (2)  If a determination under paragraph (1)(a) or (e) is made in writing, the determination is not a legislative instrument.

62   Limits on use or disclosure etc. of protected information disclosed by the Commissioner

                   A person commits an offence if:

                     (a)  the person makes a record of, or uses or discloses, information; and

                     (b)  the information is information that was disclosed to the person under section 61; and

                     (c)  the purpose for which the person makes the record of, or uses or discloses, the information is not the purpose for which the information was disclosed under that section.

Penalty:  Imprisonment for 2 years.

63   Disclosure to court etc.

                   A court, or any other body or person that has power to require the production of documents or the answering of questions, may require a person or body to disclose protected information only if one of the following applies:

                     (a)  the disclosure is required for the purposes of:

                              (i)  this Act or the rules; or

                             (ii)  the Aged Care Act or the Aged Care Principles;

                     (b)  the information was originally disclosed to the person or body under section 61 of this Act and the disclosure is required for the purpose for which it was disclosed under that section;

                     (c)  the person or body to whom the information relates has consented, in writing, to the disclosure.