Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) A person shall not, directly or indirectly, except in the performance of duties, or in the exercise of powers or functions, under this Act or for the purpose of enabling a person to perform functions under the Medicare Australia Act 1973 or the medical indemnity legislation, and while the person is, or after the person ceases to be, an officer, divulge or communicate to any person, any information with respect to the affairs of a third person acquired by the first‑mentioned person in the performance of duties, or in the exercise of powers or functions, under this Act.
Penalty: $5,000 or imprisonment for 2 years, or both.
(2) Where the third person mentioned in subsection (1) is a party to an action or proceeding before a court, nothing in that subsection precludes the disclosure to the court of information with respect to the affairs of the third person.
(3) Notwithstanding anything in subsection (1), the Secretary may:
(a) if the Minister certifies, by instrument in writing, that it is necessary in the public interest that any information acquired by an officer in the performance of duties, or in the exercise of powers or functions, under this Act, should be divulged, divulge that information to such person as the Minister directs;
(b) divulge any such information to an authority or person if:
(i) the authority or person is a prescribed authority or person for the purposes of this paragraph; and
(ii) the information is information of a kind that may, in accordance with the regulations, be provided to the authority or person; or
(c) divulge any such information to a person who, in the opinion of the Minister, is expressly or impliedly authorized by the person to whom the information relates to obtain it.
(4) An authority or person to whom information is divulged under subsection (3), and any person under the control of that authority or person, shall, in respect of that information, be subject to the same obligations and liabilities under subsection (1) as if the authority or the person, as the case may be, were a person performing duties under this Act and had acquired the information in the performance of those duties.
(5) Nothing in the preceding provisions of this section prohibits the publication of statistics by the Commonwealth or by the Australian Statistician but, subject to subsection (5A), such statistics shall not be published in a manner that enables the identification of a particular person or private health insurer.
(5A) Statistics relating to the supply of pharmaceutical benefits or special pharmaceutical products may be published in spite of the fact that the manufacturer of any of those benefits or products may be identified through those statistics.
(5B) Nothing in this section prohibits the divulging to a temporary operator of a nursing home or an appointed nursing home adviser information concerning:
(a) the financial affairs of the nursing home (including any money held by the proprietor of the nursing home on behalf of patients); or
(b) the maximum fees that, under conditions imposed under subsection 40AA(6), may be charged in respect of nursing home care in the nursing home, and any impending variations of those maximum fees; or
(c) the extent to which the provision of nursing home care in the nursing home has complied with standards determined under section 45D; or
(d) complaints (if any) made about the provision of nursing home care in the nursing home.
(5C) This section does not prohibit:
(a) the provision to a person of a document that was provided to the Secretary by the person in relation to a claim for a pharmaceutical benefit or special pharmaceutical product; or
(b) the divulging or communicating to a person of information relating to the person; or
(c) information that:
(i) has been provided to a prescribed professional disciplinary body or a prescribed professional regulatory body; and
(ii) was contained in a claim for a pharmaceutical benefit or special pharmaceutical product;
from being used by the body for the purpose of any investigation or inquiry being conducted by the body in the performance of its functions or the exercise of its powers.
(6) Notwithstanding anything contained in subsection (1), where:
(a) a person has been convicted of:
(i) an offence against this Act; or
(ii) 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 against this Act; or
(b) 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
(c) a Committee of Inquiry reports adversely on the conduct of a practitioner or pharmacist in relation to a matter upon which the Committee makes inquiry;
the Secretary may divulge any information acquired by an officer in the performance of duties, or in the exercise of powers or functions, under this Act that concerns a matter referred to in paragraph (a), (b) or (c) to:
(d) the Secretary to the Department of Social Security; or
(e) the Secretary to the Department of Veterans' Affairs; or
(ea) the CEO or an employee of the Services Delivery Agency; or
(f) a person or persons who, under a law of a State or Territory that provides for the registration or licensing of hospitals, nursing homes or similar institutions, is or are, responsible for the administration of that law or who is, or are, empowered to investigate persons in connection with contraventions of that law; or
(g) a person or persons who, under a law of a State or Territory that provides for the registration or licensing of practitioners, pharmacists or pharmaceutical chemists is, or are, empowered to take disciplinary action with respect to practitioners, pharmacists or pharmaceutical chemists or to investigate practitioners, pharmacists or pharmaceutical chemists in connection with the taking of such disciplinary action; or
(h) a person or persons who, under a law of the Commonwealth, a State or a Territory relating to drugs or poisons, is, or are, responsible for the administration of that law or who is, or are, empowered to investigate persons in connection with contraventions of that law; or
(j) a director, secretary or employee of a private health insurer who is authorized by the Secretary, by instrument in writing, for the purposes of this subsection.
(7) Notwithstanding anything contained in subsection (1), where the Minister, by instrument in writing, certifies that it is desirable for such of the following purposes as the Minister specifies in the certificate, that is to say:
(a) the administration of an Act administered by the Minister for Social Security;
(b) the administration of an Act administered by the Minister for Veterans' Affairs;
(c) the administration of a specified law of a State or Territory, being a law that provides for the registration or licensing of hospitals, nursing homes or similar institutions;
(d) the administration of a specified law of a State or Territory, being a law that provides for the registration or licensing of practitioners or pharmacists;
(e) the administration of a specified law of the Commonwealth, a State or a Territory relating to drugs or poisons; or
(f) 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 in the exercise of powers or functions, under this Act, should be divulged, the Secretary may divulge information of that kind:
(g) if the certificate specifies a purpose of the kind referred to in paragraph (a)--to the Secretary to the Department of Social Security, the CEO or an employee of the Services Delivery Agency;
(h) if the certificate specifies a purpose of the kind referred to in paragraph (b)--to the Secretary to the Department of Veterans' Affairs;
(j) if the certificate specifies a purpose in relation to a specified law of the kind referred to in paragraph (c) or (e)--to the person or persons who, under that law is, or are, responsible for the administration of that law or is, or are, empowered to investigate persons in connection with contraventions of that law;
(k) if the certificate specifies a purpose in relation to a specified law of the kind referred to in paragraph (d)--to the person or persons who, under that law is, or are, empowered to take disciplinary action with respect to practitioners or pharmacists or to investigate practitioners or pharmacists in connection with the taking of such disciplinary action; or
(m) if the certificate specifies a purpose of the kind referred to in paragraph (f)--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, by instrument in writing, for the purposes of this subsection.
(8) Information relating to the rendering of a medical service, a dental service, an optometrical service, the provision of hospital treatment or nursing home care or the supply of a pharmaceutical benefit or special pharmaceutical product shall not be divulged 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, that treatment or care was provided or that benefit or product was supplied (in this subsection referred to as the patient ) unless:
(a) the patient:
(i) is a person referred to in paragraph (6)(a) or (b); or
(ii) consents in writing to the disclosure of the information; or
(b) the Minister certifies that there are reasonable grounds for suspecting that the patient has committed, or is committing, an offence of the kind referred to in subparagraph (6)(a)(i) or (ii).
(9) A person to whom information is divulged under subsection (6) or (7) and any person under the control of the first‑mentioned person shall not, directly or indirectly, except:
(a) in the case of the Secretary to the Department of Social Security or a person under the control of the Secretary to the Department of Social Security--in the performance of duties, or in the exercise of powers or functions, under an Act administered by the Minister for Social Security; or
(aa) in the case of the CEO or an employee of the Services Delivery Agency--in the performance of duties, or in the exercise of powers or functions, under an Act administered by the Minister for Social Security; or
(b) in the case of the Secretary to the Department of Veterans' Affairs or a person under the control of the Secretary--in the performance of duties, or in the exercise of powers or functions, under an Act administered by the Minister for Veterans' Affairs; or
(c) in the case of a person or persons referred to in paragraph (6)(f), (g) or (h) or (7)(j) or (k) or a person under the control of such a person or persons--in the performance of duties, or in the exercise of powers or functions, under the law referred to in that paragraph; or
(d) in the case of a director, secretary or employee of a private health insurer or a person under the control of such a person--in the performance of duties, or in the exercise of powers or functions, in relation to the carrying on of the business of the insurer;
and while the person is, or after the person ceases to be, such a person, divulge or communicate to any person, any information so divulged.
Penalty: $5,000 or imprisonment for 2 years, or both.
(10) The powers conferred by subsections (6) and (7) are in addition to, and not in derogation of, the powers conferred by subsection (3).
(11) The powers conferred by subsection (6) are in addition to, and not in derogation of, the powers conferred by subsection (7).
(12) Nothing in subsection (3), (6) or (7) shall be taken to limit the generality of subsection (2) or the exception referred to in subsection (1).
(13) Where:
(a) a person solicits the disclosure of protected information from an officer or another person; and
(b) the disclosure would be in contravention of this section; and
(c) the first‑mentioned person knows or ought reasonably to know that the information is protected information;
the first‑mentioned person is guilty of an offence, whether or not any protected information is actually disclosed.
(14) Where protected information is disclosed to a person in contravention of this section, the person is guilty of an offence if he or she knows or ought reasonably to know that the disclosure is in contravention of this section and:
(a) he or she in any way solicited the disclosure of the information; or
(b) he or she discloses the information to another person; or
(c) he or she uses the information otherwise than by disclosing it to another person.
(16) Where:
(a) a person is convicted of an offence under subsection (13); and
(b) the person acted as an employee or agent of another person in soliciting the disclosure of the information;
the other person is guilty of an offence.
(16A) An offence under subsection (16) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
(17) It is a defence to a prosecution for an offence against subsection (16) 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.
Note: The defendant bears an evidential burden in relation to the matter in subsection (17). See subsection 13.3(3) of the Criminal Code .
(18) Where:
(a) a person is convicted of an offence under subsection (14); and
(b) the person acted as an employee or agent of another person in obtaining the information;
the other person is guilty of an offence.
(18A) An offence under subsection (18) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
(19) It is a defence to a prosecution for an offence against subsection (18) if the employee or agent's action described in subsection (14) was outside the scope of his or her authority as an employee or agent.
Note: The defendant bears an evidential burden in relation to the matter in subsection (19). See subsection 13.3(3) of the Criminal Code .
(20) A person who:
(a) offers to supply (whether to a particular person or otherwise) information about another person; and
(b) knows that the information is protected information;
is guilty of an offence.
(21) A person who:
(a) holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person; and
(b) knows that the information is protected information;
is guilty of an offence.
(22) The penalty for an offence against subsection (13), (14), (16), (18), (20) or (21) is imprisonment for a period not exceeding 2 years.
(23) Nothing in this section has the effect that an officer exercising or performing his or her duties, functions or powers under, or in relation to, this Act is guilty of an offence.
(24) In this section:
"appointed nursing home adviser" means a nursing home adviser who holds an appointment, as such an adviser, in respect of an approved nursing home.
"CEO" means the Chief Executive Officer of the Services Delivery Agency.
"court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
"employee" , in relation to the Services Delivery Agency, has the same meaning as in the Commonwealth Services Delivery Agency Act 1997 .
"medical indemnity legislation" means:
(a) the Medical Indemnity Act 2002 ; and
(aa) the Medical Indemnity ( Competitive Advantage Payment) Act 2005 ; and
(b) the Medical Indemnity (Run‑off Cover Support Payment) Act 2004 ; and
(c) the Medical Indemnity (UMP Support Payment) Act 2002 .
"officer" means a person performing duties, or exercising powers or functions under, or in relation to, this Act.
"pharmaceutical benefit" has the same meaning as in Part VII.
"protected information" means information about a person that is held in the records of the Department.
"Services Delivery Agency" means the Commonwealth Services Delivery Agency established by the Commonwealth Services Delivery Agency Act 1997 .
"special pharmaceutical product" has the same meaning as in Part VII.
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