Protection of information—Commissioner’s functions etc
72A Protection of information—Commissioner’s functions etc
Definitions
In this section:
entrusted person means any of the following:
the Commissioner;
a delegate of the Commissioner;
a person acting under the direction or authority of the Commissioner;
a Special Commissioner;
a member of staff assisting the Commissioner or a Special Commissioner.
protected information means information that was obtained by an entrusted person in connection with the performance of functions or duties, or the exercise of powers, under:
paragraph 41(2)(j), (k), (m), (n) or (o); or
section 41A, 41B, 41C, 41D or 43; or
any other provision of this Act or the regulations prescribed by the regulations for the purposes of this paragraph.
Prohibition on disclosure or other use of protected information
Except as authorised by this section or the regulations, a person who is, or was, an entrusted person must not, directly or indirectly, make a record of, disclose or otherwise use protected information.
Section 122.4 of the Criminal Code creates an offence in relation to the disclosure of information by Commonwealth officers.
Authorised disclosure or other use of protected information
An entrusted person may make a record of, disclose or otherwise use protected information for the purposes of, or in connection with, the performance of functions or duties, or the exercise of powers, under this Act or the regulations.
Authorised disclosure of protected information by the Commissioner
The Commissioner may disclose protected information in a report prepared for purposes connected with the performance of the functions, or the exercise of the powers, of the Commissioner under this Act or the regulations, if the Commissioner is satisfied that the disclosure is necessary for the purpose of setting out the grounds for the conclusions and recommendations contained in the report.
Subject to subsection (6), the Commissioner may disclose protected information to a person, or to the public or a section of the public, if the Commissioner is satisfied that:
the disclosure:
is in the interests of an Agency or a person; or
is in the public interest; and
the disclosure is not likely to interfere with a review or inquiry under this Act or the regulations.
The Commissioner must not disclose the name of an individual, or any other material that would enable an individual to be identified, in protected information that is disclosed under subsection (5), unless the Commissioner is satisfied that the disclosure is fair and reasonable in all the circumstances.
Compellability of entrusted persons to give evidence
A person who is, or was, an entrusted person is not compellable in any proceeding:
before a court (whether exercising federal jurisdiction or not); or
before a person authorised by a law of the Commonwealth or a State or Territory, or by consent of the parties, to hear, receive and examine evidence;
to disclose protected information that was obtained in connection with the performance of functions or duties, or the exercise of powers, under:
paragraph 41(2)(j), (k), (m) or (o); or
section 41A, 41C, 41D or 43; or
any other provision of this Act or the regulations prescribed by the regulations for the purposes of this paragraph.
This provision refers to the regulations (the regulations
, prescribed by the regulations
). Made under this Act:
- Prime Minister’s direction under subsection 21(1) · Legislative Instrument · under s 21(1)
- Prime Minister’s direction under subsection 21(1) – 2020 (No. 1) · Legislative Instrument · under s 21(1)
- Public Service (Commissioner's Functions) Direction 2026 · Legislative Instrument · under para 41(2)(q)
4 more instruments made under this Act are listed on the Act’s overview.
This Act’s bill:Explanatory memorandumSecond reading speech
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