Commonwealth Consolidated Regulations Commonwealth Consolidated Regulations(1) This regulation applies to the following persons:
(a) the Merit Protection Commissioner;
(b) a member of the staff assisting the Merit Protection Commissioner;
(c) a person acting under the direction or authority of the Merit Protection Commissioner;
(d) a person (other than an employee of the Agency) to whom the Merit Protection Commissioner has delegated any of his or her powers under section 78 of the Act;
(e) a member of a Review Committee established under paragraph 33 (4) (d) of the Act;
(f) a member of an Independent Selection Advisory Committee;
(g) a person (other than the Merit Protection Commissioner) who is required to assist the Commissioner to investigate a complaint under regulation 7.2;
(h) a person (other than the Merit Protection Commissioner) who is required to assist the Commissioner to review action under regulation 7.3.
(2) The person must not, directly or indirectly, make a record of, or divulge or communicate to any other person, any information that was:
(a) acquired by the person while he or she was performing duties as a person described in subregulation (1); and
(b) disclosed or obtained:
(i) under section 33 or paragraph 50 (1) (a) of the Act; or
(ii) during the investigation of a complaint under regulation 7.2; or
(iii) during the review of action under regulation 7.3; or
(iv) while acting as a member of an Independent Selection Advisory Committee.
Penalty: 10 penalty units.
(2A) Strict liability applies to the following physical elements of an offence against subregulation (2):
(a) that the duties performed by the person were duties as a person described in subregulation (1);
(b) that the information was disclosed or obtained under section 33 or paragraph 50 (1) (a) of the Act;
(c) that the investigation was under regulation 7.2;
(d) that the review was under regulation 7.3.
Note For strict liability , see section 6.1 of the Criminal Code .
(3) Subregulation (2) applies to the person:
(a) while he or she is performing duties as a person described in subregulation (1); and
(b) after he or she ceases to perform the duties.
(4) Subregulation (2) does not prevent the person:
(a) from making a record of, or divulging or communicating to any other person, information acquired by the person:
(i) while he or she is performing duties as a person described in subregulation (1); and
(ii) for purposes connected with the exercise of the powers, and with the performance of the functions, of the Merit Protection Commissioner under the Act; or
(b) from divulging or communicating to any other person information given by an APS employee, in the performance of the APS employee's duties, with the consent of the APS employee's Agency Head or the responsible Minister; or
(c) from divulging or communicating to any person information given by a person, otherwise than as described in paragraph (b), with the consent of the person who gave the information.
(5) Subregulation (2) does not prevent the Merit Protection Commissioner from disclosing, in a report made under the Act, matters that, in his or her opinion, ought to be disclosed in the course of setting out the grounds for the conclusions and recommendations contained in the report.
(6) A person who is, or has been, a person described in subregulation (1) is not competent and may not be required, in any proceedings before a court (whether exercising federal jurisdiction or not) or before a person authorised by a law of the Commonwealth or of a State or Territory, or by consent of parties, to hear, receive or examine evidence, to disclose any information acquired by the person by reason of his or her being or having been a person described in subregulation (1), being information that was disclosed or obtained under the provisions of section 33 or paragraph 50 (1) (a) of the Act.
(7) This regulation does not prevent the Merit Protection Commissioner from disclosing information, or making a statement, to any person or to the public or a section of the public with respect to the performance of a function of the Merit Protection Commissioner under the Act if, in the opinion of the Merit Protection Commissioner:
(a) it is in the interests of any Agency or person to disclose the information or to make the statement; or
(b) it is otherwise in the public interest to disclose the information or to make the statement.
(8) The Merit Protection Commissioner must not disclose information or make a statement under subregulation (7) with respect to a particular inquiry or review if the disclosure of the information, or the making of the statement, is likely to interfere with the carrying out of the inquiry or review, or of any other inquiry or review.
(9) If the Merit
Protection Commissioner discloses information
or makes a statement under
subregulation (7) with respect
to a particular inquiry or review, the Merit
Protection Commissioner must not disclose the name of an applicant, or any
other matter that would allow an applicant to be identified, unless it is fair
and reasonable in all the circumstances to do so.