Victorian Consolidated Legislation

Essential Services Commission Act 2001 - SECT 38

Restriction on disclosure of confidential information

38. Restriction on disclosure of confidential information



(1) This section applies if-

   (a)  information or a document is given to the Commission under section 37,
        37A or 51; and

   (b)  at the time the information or document is given, the person giving it
        states that it is of a confidential or commercially-sensitive nature.

(1A) Before the Commission makes a decision under subsection (2), the
Commission must-

   (a)  give the person giving the information or document an opportunity to
        make a submission to the Commission specifying-

   (i)  why the information or document is of a confidential or
        commercially-sensitive nature; and

   (ii) the detriment that would be caused by the disclosure of the
        information or document; and

   (b)  consider any submission made by that person.

(2) The Commission must not disclose the information or the contents of the
document to any person unless-

   (a)  the Commission is of the opinion-

   (i)  that the disclosure of the information or document would not cause
        detriment to the person supplying it; or

   (ii) that although the disclosure of the information or document would
        cause detriment to the person supplying it, the public benefit in
        disclosing it outweighs that detriment; and

   (b)  the Commission is of the opinion, in relation to any other person who
        is aware of the information or the contents of the document and who
        might be detrimentally affected by the disclosure-

   (i)  that the disclosure of the information or document would not cause
        detriment to that person; or

   (ii) that although the disclosure of the information or document would
        cause detriment to that person, the public benefit in disclosing it
        outweighs that detriment; and

   (c)  the Commission gives the person who supplied the information or
        document a written notice-

   (i)  stating that the Commission wishes to disclose the information or
        contents of the document, specifying the nature of the intended
        disclosure and setting out detailed reasons why the Commission wishes
        to make the disclosure; and

   (ii) stating that the Commission is of the opinion required by paragraph
        (a) and setting out detailed reasons why it is of that opinion; and

   (iii) setting out a copy of this section and section 55, and as the case
        requires, section 45 or 52; and

   (d)  if the Commission is aware that the person who supplied the
        information or document in turn received the information or document
        from another person and is aware of that other person's identity and
        address, the Commission gives that other person a written notice-

   (i)  containing the details required by paragraph (c); and

   (ii) stating that the Commission is of the opinion required by paragraph
        (b) in relation to him, her or it and setting out detailed reasons why
        it is of that opinion; and

   (e)  no notice of appeal is lodged in respect of any notice given under
        paragraph (c) or (d) within the time permitted by section 55(3).

Penalty: 120 penalty units.

(3) Subsection (2) does not prevent the Commission-

   (a)  from disclosing information or the contents of a document to-

   (i)  an employee employed under section 24(1); or

   (ii) a member of staff referred to in section 24(2); or

   (iii) a consultant engaged under section 25; or

   (iv) a member of a Division, committee or panel acting under a delegation
        under section 26; or

   (b)  from using information or a document for the purposes of an inquiry or
        investigation; or

   (c)  from disclosing information or the contents of a document to the
        Minister in a report prepared in the form required by section 45(2) or
        52(2); or

   (d)  from supplying the information or document to the members of any
        appeal panel hearing an appeal in relation to the information or
        document.

(4) If an appeal is lodged under section 55 and the appeal-

   (a)  is withdrawn or dismissed, the Commission may disclose any
        information, or the contents of any document, that was the subject of
        the appeal in the manner set out in the notice given under subsection
        (2)(c);

   (b)  is granted, the Commission may disclose anything that the appeal panel
        permits it to disclose under section 56(7)(b)(ii) in the manner
        specified by the appeal panel.

(5) For the purposes of this section, the disclosure of anything that is
already in the public domain at the time the Commission wishes to disclose it
can not cause detriment to any person referred to in subsection (2)(a) or
(2)(b).