91Disclosure for purposes of law enforcement and national security

91 Disclosure for purposes of law enforcement and national security

Scope (1) This section applies if the Ombudsman reasonably believes that the disclosure of protected information is reasonably necessary for: (a) the enforcement of the criminal law; or (b) the enforcement of a law imposing a pecuniary penalty; or (c) the protection of the public revenue; or (d) the protection of national security. Disclosure (2) The Ombudsman may disclose that protected information to: (a) an agency of the Commonwealth, a State or a Territory; or (b) an Australian police force; whose functions include that enforcement or protection, for the purposes of that enforcement or protection. (3) If a delegate of the Ombudsman, or a person assisting the Ombudsman under section 33, is authorised by the Ombudsman, in writing, for the purposes of this section, the individual may disclose that protected information to: (a) an agency of the Commonwealth, a State or a Territory; or (b) an Australian police force; whose functions include that enforcement or protection, for the purposes of that enforcement or protection. Secondary disclosure and use (4) A person commits an offence if: (a) the person is, or has been, an employee or officer of: (i) an agency of the Commonwealth, a State or a Territory; or (ii) an Australian police force; and (b) protected information has been disclosed under subsection (2) or (3) to the agency or police force, as the case may be; and (c) the person has obtained the information in the person’s capacity as an employee or officer of the agency or police force, as the case may be; and (d) the person: (i) discloses the information to another person; or (ii) uses the information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(5) Subsection (4) does not apply if: (a) the disclosure or use is with the consent of the Ombudsman; and (b) the disclosure or use is for the purpose of: (i) enforcing the criminal law; or (ii) enforcing a law imposing a pecuniary penalty; or (iii) protecting the public revenue; or (iv) protecting national security.

Note: A defendant bears an evidential burden in relation to a matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Conditions (6) The Ombudsman may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (2) or (3). (7) A person commits an offence if: (a) the person is subject to a condition under subsection (6); and (b) the person engages in conduct; and (c) the person’s conduct breaches the condition.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(8) An instrument under subsection (6) is not a legislative instrument.