41Officers to observe secrecy

#### 41 Officers to observe secrecy (1) In this section, officer means: (a) the Ombudsman; (b) a Deputy Ombudsman; (c) a person who is a member of the staff appointed or employed for the purposes of the Ombudsman Act 1976 under the Public Service Act 1999; (d) a person, not being a person referred to in paragraph (b) or (c), to whom the Ombudsman has, under section 40, delegated any of his or her powers or who is an authorized person; or (e) a person who is made available to the Ombudsman as mentioned in paragraph 25(3)(a) or (b). (2) Subject to this section, an officer shall not, either directly or indirectly, and either while he or she is, or after he or she ceases to be, an officer, make a record of, or divulge or communicate, any information acquired by him or her by reason of his or her being an officer, being information that was disclosed or obtained under the provisions of this Act, including information furnished by the Ombudsman of a State or information disclosed to or obtained by the Commonwealth Ombudsman in the exercise of a power of the Ombudsman of a State delegated to him or her as provided by subsection 34(7) of the Ombudsman Act 1976. Penalty: 30 penalty units. (3) Subsection (2) does not prevent an officer: (a) from making a record of, or divulging or communicating information acquired by him or her in the performance of his or her duties as an officer for purposes connected with the exercise of the powers and the performance of the functions of the Ombudsman under this Act; (b) from divulging or communicating information: (i) if the information was furnished by an AFP appointee in the performance of his or her duties as such an AFP appointee—with the consent of the Commissioner or of the responsible Minister; or (ii) if the information was furnished by a person otherwise than as set out in subparagraph (i)—with the consent of the person who furnished the information; or (c) from divulging or communicating information in any proceedings before a court. (4) Subject to subsection (5), subsection (2) does not prevent the Ombudsman or a Deputy Ombudsman from disclosing, in a report made under this Act, such matters as, 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. (5) Where the Attorney‑General furnishes to the Ombudsman a certificate in writing certifying that: (a) the disclosure of information or documents concerning a specified matter or matters included in a specified class of matters; or (b) the disclosure of a specified document or of documents included in a specified class of documents; would, for a reason specified in the certificate, being a reason referred to in paragraph 27(4)(a), (b), (c) or (d), be contrary to the public interest, an officer shall not, either directly or indirectly and either while he or she is, or after he or she ceases to be, an officer, except as provided in subsection (6) of this section: (c) divulge or communicate any information acquired by him or her under the provisions of this Act concerning such a matter or such a document; (d) divulge or communicate any of the contents of such a document; or (e) furnish such a document, or a copy of, or an extract from, such a document. Penalty: Imprisonment for 2 years. (6) Subsection (5) does not prevent an officer, in the performance of his or her duties as an officer: (a) from divulging or communicating information referred to in that subsection to another officer; (b) from furnishing any of the contents of a document referred to in that subsection, or a copy of or an extract from such a document, to another officer; or (c) from returning such a document that has been produced to him or her to the person lawfully entitled to the custody of the document. (7) Subject to subsection (8), where the Ombudsman proposes, for purposes connected with the exercise of his or her powers or performance of his or her functions under this Act, to furnish information, or to send a document, or a copy of, or extract from, a document, to the Ombudsman of a State, the Ombudsman shall not do so unless he or she is satisfied that a law of the State makes provision corresponding to the provision made by this section with respect to the confidentiality of information acquired by the Ombudsman of the State. (8) Subsection (7) does not apply in relation to any information or document obtained by the Ombudsman in the exercise of a power of the Ombudsman of the State that the Ombudsman was authorized to exercise in pursuance of subsection 34(7) of the Ombudsman Act 1976.