Officers to observe secrecy
130 Officers to observe secrecy
Offence—use or disclosure by officer outside course of duty
A person (the relevant person) commits an offence if:
the relevant person is or has been an officer; and
the relevant person uses or discloses information; and
the information:
relates to the affairs of a person other than the relevant person; and
is obtained or generated by the relevant person in the performance of duties or functions, or in the exercise of powers, under this Act.
Penalty: 5 penalty units.
Subsection (1) does not apply if the use or disclosure is:
authorised or exempted under a provision of this Act; or
otherwise required or authorised under an Australian law.
The defendant bears an evidential burden in relation to the matter in this subsection. See subsection 13.3(3) of the Criminal Code.
For the purposes of this subsection, examples of provisions of this Act that authorise the use or disclosure of information include sections 129B, 129C, 129D and 129E.
Authorisation—performance of functions
An officer may use or disclose information of a kind referred to in paragraph (1)(c):
in the performance of duties or functions, or in the exercise of powers, under this Act or any other Act; or
for the purpose of enabling the officer or any other person to perform duties or functions, or exercise powers, in relation to a medicare program; or
in the case of disclosure to the Minister—for the purposes of the Minister’s performance of the Minister’s functions.
Authorisation—use or disclosure in the public interest
An officer may use or disclose information of a kind referred to in paragraph (1)(c) if:
the Secretary or the Chief Executive Medicare certifies, by instrument in writing, that it is in the public interest to disclose the information to a specified person or body for a specified purpose; and
the officer:
discloses the information to the person or body for that purpose; or
uses the information for purposes related to such a disclosure.
Information disclosed to a person under this subsection for a specified purpose must only be further used or disclosed for that purpose (see subsection (3G)).
The Secretary or the Chief Executive Medicare may, by instrument in writing, specify terms and conditions subject to which the information may be used or disclosed by the person.
Without limiting subsection (3A), the instrument may require the person to give an undertaking in writing with respect to the use or disclosure of the information by the person, which may include an undertaking not to disclose any of the information to any other person or body.
An instrument under paragraph (3)(a) or subsection (3A) is not a legislative instrument.
Subsection (3) has effect subject to rules made under subsection (3E) (if any).
The Minister may, by legislative instrument, make rules for the purposes of subsection (3D).
Authorisation—disclosing to prescribed person or body
An officer may disclose information of a kind referred to in paragraph (1)(c) to a person or body for a specified purpose if regulations made for the purposes of this subsection provide that:
the person or body is a prescribed person or body; and
the information is prescribed information; and
the information may be provided to the person or body for that purpose.
Information disclosed to a person or body under this subsection for a specified purpose must only be further used or disclosed for that purpose (see subsection (3G)).
Obligation on further use or disclosure of disclosed information
A person or body that receives information under subsection (3) or (3F) for a specified purpose must ensure that any further use or disclosure of the information is only for that purpose.
Authorisation—use or disclosure by officer in certain circumstances
An officer may use or disclose information of a kind referred to in paragraph (1)(c) if:
the information is lawfully in the public domain; or
the person to whom the information relates has expressly or impliedly consented to the use or disclosure; or
the use or disclosure is for the purpose of obtaining or providing legal advice; or
if the disclosure is to a person or body—the information relates to that person or body; or
if the disclosure (the present disclosure) is to a person or body—the information has lawfully been disclosed to that person or body previously (the previous disclosure), and the present disclosure is for the same purpose as the previous disclosure.
Authorisation—statistical information
An officer may use or disclose information of a kind referred to in paragraph (1)(c) for the purpose of deriving or publishing statistics that do not enable the identification of any person (other than the Commonwealth, a State or a Territory).
Exemption—dealings with certain information about hospitals
If a person applies to an authorised officer for information about a hospital, this section does not prohibit that authorised officer or any other authorised officer providing all or any of the following information in respect of the hospital to the applicant:
the name and address of the hospital;
the number of beds available in the hospital to patients;
whether or not the hospital is a private hospital or a recognised hospital;
the kinds of services (for example, obstetric services or psychiatric services) provided at the hospital;
whether or not the hospital is a teaching hospital.
In subsection (5A):
authorised officer means:
the Secretary; or
an APS employee in the Department.
Exemption—dealings with information relevant to Professional Services Review Scheme
This section does not prohibit the Chief Executive Medicare, or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973), from providing to:
the Director of Professional Services Review appointed under section 83; or
an Associate Director of Professional Services Review appointed under section 83A; or
a Committee set up under section 93; or
the Determining Authority established by section 106Q; or
any person providing services to any of the above;
information to help the Director, Associate Director, Committee or Authority in the performance of functions or duties, or the exercise of powers, under Part VAA, or to assist a person referred to in paragraph (d) in the provision of services referred to in that paragraph.
In subsection (5E):
services means:
clerical or administrative services; and
investigative services; and
advisory services provided by a practitioner; and
legal services.
Authorisation—data‑matching by a Commonwealth entity
Notwithstanding anything contained in the preceding provisions of this section, a person may disclose information to a Commonwealth entity for the purpose of facilitating the matching of that information by the Commonwealth entity under subsection 132B(1) of the National Health Act 1953.
Authorisation—disclosing information relating to convictions etc.
Notwithstanding anything contained in subsections (1) and (2), where:
a person has been convicted of:
an offence against Division 3 of Part IIBA or section 128A, 128B or 129AA of this Act; or
an offence against section 6 of the Crimes Act 1914, or section 11.1, 11.4 or 11.5 of the Criminal Code, that relates to an offence referred to in subparagraph (i); or
an order has been made in relation to a person under section 19B of the Crimes Act 1914 in relation to an offence referred to in subparagraph (a)(i) or (ii); or
a pecuniary penalty order has been made against a person in respect of a contravention of a civil penalty provision in Division 2 of Part IIBA of this Act;
the Secretary or the Chief Executive Medicare may disclose any information acquired by an officer in the performance of duties or functions, or in the exercise of powers, under this Act that concerns a matter referred to in paragraph (a), (b) or (ba) to:
the Secretary of the Department of Social Security; or
the Chief Executive Centrelink or a person engaged (whether as an employee or otherwise) by Services Australia; or
the Secretary of the Veterans’ Affairs Department; or
a person or body who, under the National Law, is required or permitted to:
take disciplinary action with respect to practitioners, optometrists, midwives or nurse practitioners; or
investigate practitioners, optometrists, midwives or nurse practitioners in connection with the taking of such disciplinary action; or
a director, secretary or employee of a private health insurer who is authorized by the Secretary or the Chief Executive Medicare, by instrument in writing, for the purposes of this subsection.
Authorisation—disclosing certified information for purposes of certain Commonwealth Acts, National Law or private health insurance
Notwithstanding anything contained in subsection (1) or (2), where the Minister, by instrument in writing, certifies that it is desirable for such of the following purposes as he or she specifies in the certificate, that is to say:
the administration of an Act administered by the Veterans’ Affairs Minister;
the administration of the Migration Act 1958;
the administration of the National Law to the extent it provides for the registration of practitioners, optometrists, midwives or nurse practitioners;
the carrying on of the business of a specified private health insurer or a private health insurer included in a specified class of private health insurers;
that information of a kind referred to in the certificate, being information acquired by an officer in the performance of duties or functions, or in the exercise of powers, under this Act, should be disclosed, the Secretary or the Chief Executive Medicare may disclose information of that kind:
if the certificate specifies a purpose of the kind referred to in paragraph (b)—to the Secretary of the Veterans’ Affairs Department; or
if the certificate specifies a purpose of the kind referred to in paragraph (ba)—to the Secretary of the Immigration Department; or
if the certificate specifies a purpose of the kind referred to in paragraph (c)—a person or body who, under the National Law, is required or permitted to:
take disciplinary action with respect to practitioners, optometrists, midwives or nurse practitioners; or
investigate practitioners, optometrists, midwives or nurse practitioners in connection with the taking of such disciplinary action; or
if the certificate specifies a purpose of the kind referred to in paragraph (d)—to a director, secretary or employee of each private health insurer to which the certificate relates, being a director, secretary or employee who is authorized by the Secretary or the Chief Executive Medicare, by instrument in writing, for the purposes of this subsection.
Restrictions on disclosing information relating to rendering of professional service
Information relating to the rendering of a professional service shall not be disclosed in pursuance of subsection (6) or (7) in a manner that is likely to enable the identification of the person to whom that service was rendered unless:
the person to whom that service was rendered is a person referred to in paragraph (6)(a), (b) or (ba); or
the Minister certifies that he or she has reasonable grounds for suspecting that the person to whom that service was rendered has committed, or is committing, an offence of the kind referred to in subparagraph (6)(a)(i) or (ii) or a contravention of a civil penalty provision referred to in paragraph (6)(ba).
Offence—recipients of information relating to convictions etc. or that is certified
A person to whom information is disclosed under subsection (6) or (7) and any person or employee under the control of the first‑mentioned person shall not, directly or indirectly, except:
in the case of the Chief Executive Centrelink or a person engaged (whether as an employee or otherwise) by Services Australia—in the performance of powers or functions under an Act administered by the Minister administering the Human Services (Centrelink) Act 1997; or
in the case of the Secretary of the Veterans’ Affairs Department or a person or employee under the control of the Secretary—in the performance of duties or functions, or in the exercise of powers, under an Act administered by the Veterans’ Affairs Minister; or
in the case of the Secretary of the Immigration Department or a person or employee under the control of the Secretary—in the performance of duties or functions, or in the exercise of powers, under the Migration Act 1958; or
in the case of a person (the first person) or body referred to in paragraph (6)(e) or (7)(g), or a person or employee under the control of the first person or body—in the performance of duties or functions, or in the exercise of powers, under the National Law; or
in the case of a director, secretary or employee of a private health insurer or a person or employee under the control of such a person—in the performance of duties or functions, or in the exercise of powers in relation to the carrying on of the business of the insurer;
and while he or she is, or after he or she ceases to be, such a person, use, or disclose to any person, any information so disclosed.
Penalty: 5 penalty units.
Disclosed information relating to convictions etc. or certified information generally not to be disclosed to courts
A person to whom information is disclosed under subsection (6) or (7) or a person or employee under the control of the first‑mentioned person shall not, except in the performance of duties or functions or the exercise of powers referred to in whichever of paragraphs (9)(aa), (b), (ba), (c) and (d) is applicable, be required:
to produce in court any document that has come into his or her possession or under his or her control under subsection (6) or (7); or
to disclose to a court any matter or thing that has come under his or her notice under subsection (6) or (7).
Despite subsection (1), any of the following persons may disclose information about a person’s compliance with a share by default provision (within the meaning of the My Health Records Act 2012) to the Australian Commission on Safety and Quality in Health Care:
the Secretary;
the Secretary of the Department administered by the Minister administering the My Health Records Act 2012;
the Chief Executive Medicare.
Offences—solicitation of certain information held by Department
Where:
a person solicits the disclosure of protected information from an officer or another person; and
the disclosure would be in contravention of this section; and
the first‑mentioned person knows or ought reasonably to know that the information is protected information;
the first‑mentioned person commits an offence, whether or not any protected information is actually disclosed.
Where:
a person is convicted of an offence under subsection (14); and
the person acted as an employee or agent of another person in soliciting the disclosure of the information;
the other person commits an offence.
An offence under subsection (17) is an offence of strict liability.
For strict liability, see section 6.1 of the Criminal Code.
It is a defence to a prosecution for an offence against subsection (17) if the employee or agent was acting outside the scope of his or her authority as an employee or agent in soliciting the disclosure of the information.
The defendant bears an evidential burden in relation to the matter in subsection (18). See subsection 13.3(3) of the Criminal Code.
Offence—conduct relating to information unlawfully disclosed
A person commits an offence if:
protected information is disclosed to the person; and
the disclosure contravenes this section; and
the person:
in any way solicited the disclosure of the information to the person; or
discloses the information to another person; or
uses the information otherwise than by disclosing it to another person.
Where:
a person is convicted of an offence under subsection (18A); and
the person acted as an employee or agent of another person in obtaining the information;
the other person commits an offence.
An offence under subsection (19) is an offence of strict liability.
For strict liability, see section 6.1 of the Criminal Code.
It is a defence to a prosecution for an offence against subsection (19) if the employee or agent’s action described in subsection (18A) was outside the scope of his or her authority as an employee or agent.
The defendant bears an evidential burden in relation to the matter in subsection (20). See subsection 13.3(3) of the Criminal Code.
Offences—offer to supply certain information held by Department
A person who:
offers to supply (whether to a particular person or otherwise) information about another person; and
knows that the information is protected information;
commits an offence.
A person who:
holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person; and
knows that the information is protected information;
commits an offence.
Penalty for offences against solicitation, conduct relating to information unlawfully disclosed or offer to supply
The penalty for an offence against subsection (14), (17), (18A), (19), (21) or (22) is imprisonment for a period not exceeding 2 years.
Definitions
In this section, unless the contrary intention appears:
officer means any of the following:
a person performing duties or functions, or exercising powers, under or in relation to this Act or a medicare program;
any other person employed or engaged by the Commonwealth to provide services to the Commonwealth in connection with a relevant Department or Services Australia;
any other person employed or engaged (however described) by a person described in paragraph (b) to provide services in connection with the services mentioned in that paragraph.
protected information means information about a person that is held in the records of the Department.
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