65Protection of confidentiality of information obtained under an examination notice

#### 65 Protection of confidentiality of information obtained under an examination notice (1) This section restricts what a person (the entrusted person) may do with protected information that the person has obtained in the course of official employment. > Note: Although this section applies only to information that a person obtained in the course of official employment, the obligations under this section continue to apply after the person ceases to be in official employment. Recording or disclosing (2) The entrusted person must not: (a) make a record of protected information; or (b) disclose protected information. Penalty: Imprisonment for 12 months. Permitted recording or disclosure by designated officials (3) If the entrusted person is a designated official at the time of the recording or disclosure, then each of the following is an exception to the offence in subsection (2): (a) the recording or disclosure is for the purposes of the performance of the Director’s functions or the exercise of the Director’s powers; (b) the recording or disclosure happens in the course of the performance of the duties of the entrusted person’s official employment; (c) in the case of a disclosure—the disclosure is to a person appointed or employed by: (i) the Commonwealth, a State or Territory; or (ii) an authority of the Commonwealth, a State or Territory; for the purpose of assisting in building industry law enforcement; (d) the recording or disclosure is in accordance with regulations made for the purposes of this paragraph. > Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code. Permitted recording or disclosure by other persons (4) If the entrusted person is not a designated official at the time of the recording or disclosure, then each of the following is an exception to the offence in subsection (2): (a) the recording or disclosure is for the purposes of the performance of the Director’s functions or the exercise of the Director’s powers; (b) the recording or disclosure happens in the course of the performance of the duties of the entrusted person’s official employment, being duties relating to building industry law enforcement; (c) the recording or disclosure is in accordance with regulations made for the purposes of this paragraph. > Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code. Disclosure to a Minister by a designated official (5) If: (a) the entrusted person discloses protected information to any Minister; and (aa) the entrusted person is a designated official; and (b) the disclosure is not required or authorised by section 12 or 14; then the exceptions in subsections (3) and (4) of this section do not apply to the disclosure. Disclosure in reports under this Act (6) If: (a) the entrusted person discloses protected information in a report under section 12 or 14; and (b) section 66 is not complied with in respect of the disclosure of the information in the report; then the exceptions in subsections (3) and (4) of this section do not apply to the disclosure. Authorisation for purposes of Privacy Act (7) A disclosure of personal information is taken to be authorised by this Act for the purposes of paragraph 6.2(b) of Australian Privacy Principle 6 if the information is protected information and the disclosure is made in accordance with subsection (3) or (4) of this section. Definitions (8) In this section: > building industry law enforcement means enforcement of a law of the Commonwealth, or of a State or Territory, where the enforcement is in respect of: (a) conduct by, or in relation to, a building industry participant in that capacity; or (b) conduct that is, or relates to, building work. > designated official means any of the following: (a) the Director; (b) an inspector; (c) a member of staff referred to in subsection 26K(1); (d) a person assisting the Director under section 26L; (e) a person engaged as a consultant under section 26M; (f) the General Manager of the FWC; (g) a presidential member or a Registrar of the Administrative Appeals Tribunal, or an officer or member of staff referred to in section 24N of the Administrative Appeals Tribunal Act 1975; (h) the Commonwealth Ombudsman, a Deputy Commonwealth Ombudsman or a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976; (i) a person acting under a delegation under this Act from a person referred to in any of the preceding paragraphs. > disclose means divulge or communicate. > official employment means: (a) appointment or employment by, or the performance of services for: (i) the Commonwealth, a State or Territory; or (ii) an authority of the Commonwealth, a State or Territory; or (b) appointment as an inspector. > protected information means information that: (a) was disclosed or obtained under an examination notice or at an examination; and (b) was obtained by the entrusted person, or by any other person, in the course of official employment; and (c) relates to a person other than the entrusted person.