Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) A person shall not, directly or indirectly, except in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act or for the purpose of enabling a person to perform functions in relation to a medicare program or for the purposes of enabling a person to perform functions under the Dental Benefits Act 2008 or the indemnity legislation, and while he or she is, or after he or she ceases to be, an officer, make a record of, or divulge or communicate to any person, any information with respect to the affairs of another person acquired by him or her in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act.
Penalty: $500.
(2) A person who is, or has been, an officer shall not, except for the purposes of this Act, be required:
(a) to produce in court any document that has come into his or her possession or under his or her control in the performance of his or her duties or functions under this Act; or
(b) to divulge or communicate to a court any matter or thing that has come under his or her notice in the performance of any such duties or functions.
(3) Notwithstanding anything contained in the preceding provisions of this section, the Secretary or the Chief Executive Medicare 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 his or her duties, or in the exercise of his or her powers or functions, under this Act, should be divulged, divulge that information to such person as the Minister directs; 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.
(3A) Notwithstanding anything contained in the preceding provisions of this section, the Secretary or the Chief Executive Medicare may divulge any information acquired by an officer in the performance of duties, or in the exercise of powers or functions, under this Act to an authority or person if:
(a) the authority or person is a prescribed authority or person for the purposes of this subsection; and
(b) the information is information of a kind that may, in accordance with the regulations, be provided to the authority or person.
(3AA) Despite subsection (1), an officer may make a record of information with the express or implied authorisation of the person to whom the information relates.
(3B) A person to whom information is given under subparagraph 46E(1)(a)(iiia) or paragraph 46E(1)(b), (d) or (e) must not use the information except for the purpose for which it was requested.
Penalty: 5 penalty units.
(3C) Subject to subsection (3E), a person to whom information is given under subparagraph 46E(1)(a)(i), (ii) or (iv), paragraph 46E(1)(b) or subparagraph 46E(1)(e)(ii), and any person or employee under the control of the first-mentioned person, must not, directly or indirectly, divulge any of the information to any person.
Penalty: 5 penalty units.
(3D) Subsection (3C) continues to apply:
(a) in respect of information that was given to a person under subparagraph 46E(1)(a)(i) or paragraph 46E(1)(b), even though the person has ceased to be recognised by the Chief Executive Medicare as a provider of immunisation to children; and
(b) in respect of information that was given to an officer of a Department, or of an authority, of a State or Territory to whom the information was given under subparagraph 46E(1)(a)(iv), even though the person has ceased to be such an officer; and
(c) in respect of information that was given to an officer or employee of a body to whom the information was given under subparagraph 46E(1)(a)(ii) or (e)(ii), even though the person has ceased to be such an officer or employee.
(3E) Subsection (3C) does not apply to the divulging of information by a person if:
(a) where the information is divulged by a person referred to in subparagraph 46E(1)(a)(i) or paragraph 46E(1)(b)--the divulging of the information is necessary for the purposes of the performance by the person of his or her functions as a provider of immunisation to children; or
(b) where the information is divulged by an officer of a Department or authority referred to in subparagraph 46E(1)(a)(iv) or of a body referred to in subparagraph 46E(1)(a)(ii) or (e)(ii)--the divulging of the information is necessary for the purposes of the performance of his or her duties and functions, or the exercise of his or her powers, in relation to the immunisation of children as an officer of the Department or authority, or of the body, as the case may be.
(3F) A prescribed body referred to in subparagraph 46E(1)(e)(ii) must, in relation to any record in the possession of an officer of the body that contains information disclosed to him or her under that subparagraph, ensure that the record is protected, by any security safeguards that it is reasonable in the circumstances to take, against loss, against unauthorised access, use, modification or disclosure, and against other misuse.
Penalty: 5 penalty units.
(3G) An offence under subsection (3F) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
(4) An authority or person to whom information is divulged under subsection (3) or (3A), and any person or employee under the control of that authority or person, shall, in respect of that information, be subject to the same rights, privileges, obligations and liabilities under subsections (1) and (2) as if he or she were a person performing duties under this Act and had acquired the information in the performance of those duties.
(4A) This section does not prohibit:
(a) the provision to a person of a document that was provided to the Chief Executive Medicare by the person in relation to a claim for a medicare benefit; 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 medicare benefit;
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.
(5) Nothing in the preceding provisions of this section prohibits the publication of statistics by the Commonwealth, by the Chief Executive Medicare or by the Commonwealth Statistician but such statistics shall not be published in a manner that enables the identification of an individual patient or an individual practitioner.
(5A) 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:
(a) the name and address of the hospital;
(b) the number of beds available in the hospital to patients;
(c) whether or not the hospital is a private hospital or a recognised hospital;
(d) the kinds of services (for example, obstetric services or psychiatric services) provided at the hospital;
(e) whether or not the hospital is a teaching hospital.
(5B) In subsection (5A):
(a) the Secretary; or
(b) an APS employee in the Department.
(5C) This section does not prohibit a person providing to:
(a) the Royal Australian College of General Practitioners; or
(b) a body specified in regulations made for the purposes of paragraph 3F(6)(b);
information to assist the Royal Australian College of General Practitioners or that body to decide whether a medical practitioner is, in accordance with the regulations, eligible for registration under section 3F.
(5D) This section does not prohibit a person providing to:
(a) the Royal Australian College of General Practitioners; or
(b) a body specified in regulations made for the purposes of paragraph 3G(1)(b);
information to assist the Royal Australian College of General Practitioners or that body to decide whether regulations made for the purposes of that paragraph require that a medical practitioner's name be removed from the Vocational Register of General Practitioners referred to in section 3F.
(5E) 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:
(a) the Director of Professional Services Review appointed under section 83; or
(b) a Committee set up under section 93; or
(c) the Determining Authority established by section 106Q; or
(d) any person providing services to any of the above;
information to help the 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.
(5F) In subsection (5E):
(a) clerical or administrative services; and
(b) investigative services; and
(c) advisory services provided by a practitioner; and
(d) legal services.
(6) Notwithstanding anything contained in subsections (1) and (2), where:
(a) a person has been convicted of:
(i) an offence against Division 3 of Part IIBA or section 128A, 128B or 129AA of 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 referred to in subparagraph (i); 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
(ba) 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 divulge any information acquired by an officer in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act that concerns a matter referred to in paragraph (a), (b) or (ba) to:
(c) the Secretary of the Department of Social Security; or
(ca) the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997 ); or
(d) the Secretary of the Veterans' Affairs Department; or
(e) a person or persons who, under a law of a State or Territory that provides for the registration or licensing of practitioners, optometrists or opticians, is, or are, empowered to take disciplinary action with respect to practitioners, optometrists or opticians or to investigate practitioners, optometrists or opticians in connection with the taking of such disciplinary action; or
(ea) a person or persons who, under a law of a State or Territory that provides for the registration of midwives, or the authorisation (however described) of persons to practise midwifery, are empowered to:
(i) take disciplinary action with respect to midwives; or
(ii) investigate midwives in connection with the taking of such disciplinary action; or
(eb) a person or persons who, under a law of a State or Territory that provides for the registration of nurse practitioners, or the authorisation (however described) of persons to practise as nurse practitioners, are empowered to:
(i) take disciplinary action with respect to nurse practitioners; or
(ii) investigate nurse practitioners in connection with the taking of such disciplinary action; or
(f) 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.
(7) 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:
(a) the administration of an Act administered by the Minister for Social Security;
(b) the administration of an Act administered by the Veterans' Affairs Minister;
(ba) the administration of the Migration Act 1958 ;
(c) the administration of a specified law of a State or Territory, being a law that provides for the registration or licensing of practitioners, optometrists or opticians; or
(ca) the administration of a specified law of a State or Territory, being a law that provides for the registration of midwives, or the authorisation (however described) of persons to practise midwifery; or
(cb) the administration of a specified law of a State or Territory, being a law that provides for the registration of nurse practitioners, or the authorisation (however described) of persons to practise as nurse practitioners; or
(d) 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 his or her duties, or in the exercise of his or her powers or functions, under this Act, should be divulged, the Secretary or the Chief Executive Medicare may divulge information of that kind:
(e) if the certificate specifies a purpose of the kind referred to in paragraph (a)--to the Secretary of the Department of Social Security or to the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997 );
(f) if the certificate specifies a purpose of the kind referred to in paragraph (b)--to the Secretary of the Veterans' Affairs Department;
(fa) if the certificate specifies a purpose of the kind referred to in paragraph (ba)--to the Secretary of the Immigration Department;
(g) if the certificate specifies a purpose in relation to a specified law of the kind referred to in paragraph (c)--to the person or persons who, under that law, is, or are, empowered to take disciplinary action with respect to practitioners, optometrists or opticians or to investigate practitioners, optometrists or opticians in connection with the taking of such disciplinary action; or
(ga) if the certificate specifies a purpose in relation to a specified law of the kind referred to in paragraph (ca)--to the person or persons who are empowered to:
(i) take disciplinary action with respect to midwives; or
(ii) investigate midwives in connection with the taking of such disciplinary action; or
(gb) if the certificate specifies a purpose in relation to a specified law of the kind referred to in paragraph (cb)--to the person or persons who are empowered to:
(i) take disciplinary action with respect to nurse practitioners; or
(ii) investigate nurse practitioners in connection with the taking of such disciplinary action; or
(h) 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.
(8) Information relating to the rendering of a professional service 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 unless:
(a) the person to whom that service was rendered is a person referred to in paragraph (6)(a), (b) or (ba); or
(b) 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).
(9) A person to whom information is divulged under subsection (6) or (7) and any person or employee under the control of the first-mentioned person shall not, directly or indirectly, except:
(a) in the case of the Secretary of the Department of Social Security or a person or employee under the control of the Secretary of the Department of Social Security--in the performance of his or her duties, or in the exercise of his or her powers or functions, under an Act administered by the Minister for Social Security; or
(aa) in the case of the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997 )--in the performance of powers or functions under an Act administered by the Minister for Social Security; or
(b) 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 his or her duties, or in the exercise of his or her powers or functions, under an Act administered by the Veterans' Affairs Minister; or
(ba) 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 his or her duties, or in the exercise of his or her powers or functions, under the Migration Act 1958 ; or
(c) in the case of a person or persons referred to in paragraph (6)(e) (ea) or (eb), or (7)(g), (ga) or (gb), or a person or employee under the control of such a person or persons--in the performance of his or her duties, or in the exercise of his or her 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 or employee under the control of such a person--in the performance of his or her duties, or in the exercise of his or her powers or functions 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, make a record of, or divulge or communicate to any person, any information so divulged.
Penalty: $500.
(10) A person to whom information is divulged 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 the exercise of powers or functions referred to in whichever of paragraphs (9)(a), (aa), (b), (ba), (c) and (d) is applicable, be required:
(a) 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
(b) to divulge or communicate to a court any matter or thing that has come under his or her notice under subsection (6) or (7).
(11) The powers conferred by subsections (6) and (7) are in addition to, and not in derogation of, the powers conferred by subsection (3) or (3A) or section 46E.
(12) The powers conferred by subsection (6) are in addition to, and not in derogation of, the powers conferred by subsection (7).
(13) Nothing in subsection (3), (3A), (6) or (7) or section 46E shall be taken to affect the exception referred to in subsection (1) or (2).
(14) 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.
(15) 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.
(17) 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 soliciting the disclosure of the information;
the other person is guilty of an offence.
(17A) An offence under subsection (17) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
(18) 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.
Note: The defendant bears an evidential burden in relation to the matter in subsection (18). See subsection 13.3(3) of the Criminal Code .
(19) Where:
(a) a person is convicted of an offence under subsection (15); 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.
(19A) An offence under subsection (19) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
(20) It is a defence to a prosecution for an offence against subsection (19) if the employee or agent's action described in subsection (15) 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 (20). See subsection 13.3(3) of the Criminal Code .
(21) 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.
(22) 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.
(23) The penalty for an offence against subsection (14), (15), (17), (19), (21) or (22) is imprisonment for a period not exceeding 2 years.
(24) 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.
(25) In this section, unless the contrary intention appears:
"indemnity legislation" means:
(a) the Medical Indemnity Act 2002 ; and
(b) the Medical Indemnity (Competitive Advantage Payment) Act 2005 ; and
(c) the Medical Indemnity (Run-off Cover Support Payment) Act 2004 ; and
(d) the Medical Indemnity (UMP Support Payment) Act 2002 ; and
(e) the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 ; and
(f) the Midwife Professional Indemnity (Run-off Cover Support Payment) Act 2010 .
"officer" means a person performing duties, or exercising powers or functions, under or in relation to this Act or a medicare program.
"protected information" means information about a person that is held in the records of the Department.
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