Div 7Protected information

Division 7—Protected information Subdivision 1—AEMO's obligation to protect information 91G—Protected information (1) AEMO must take all reasonable measures to ensure it does not make unauthorised use, or an unauthorised disclosure, of information (protected information)— (a) given to it in confidence; or (b) given to it in connection with the performance of its statutory functions and classified under the Rules, the Procedures or the Regulations as confidential information. (2) AEMO makes unauthorised use of protected information if (and only if) it uses the information contrary to this Law. Section 91FD authorises AEMO (subject to anything to the contrary in this Law) to use information (whether obtained by a market information instrument or in any other way) for any purpose connected with the performance of any of its statutory functions. (3) AEMO makes an unauthorised disclosure of protected information if the disclosure is not authorised under this Law. (4) To avoid doubt, nothing in the Rules, the Procedures or the Regulations prevents AEMO using or disclosing information for any purpose connected with the performance of any of its statutory functions. Subdivision 2—Disclosure of protected information held by AEMO 91GA—Authorised disclosure of protected information (1) AEMO is authorised to disclose protected information in accordance with this Subdivision. (2) AEMO may also be authorised to disclose protected information by the Rules, the Procedures or the Regulations. 91GB—Disclosure with prior written consent AEMO is authorised to disclose protected information if it has the written consent of the person from whom the information was obtained. 91GC—Disclosure required or permitted by law etc (1) The disclosure of protected information as required or permitted by a law of the Commonwealth, a State or Territory is authorised. (2) The disclosure of protected information to any of the following is authorised: (a) the Australian Competition and Consumer Commission; (b) the Australian Energy Regulator; (c) the Australian Energy Market Commission; (ca) the Energy Security Board; (d) the Economic Regulation Authority of Western Australia; (e) a jurisdictional regulator; (f) the National Competition Council; (fa) the Australian Bureau of Statistics; (fb) the Clean Energy Regulator; (fc) each department responsible for the administration of the application Act of a participating jurisdiction; (fd) the Minister of a participating jurisdiction; (g) if the information is reasonably required by an energy ombudsman to resolve a dispute between a Registered participant and a retail customer but the information is not end‑use consumer information—the energy ombudsman; (h) a prescribed body; (ha) a person or body who— (i) satisfies any requirements or criteria prescribed for the purposes of this paragraph; or (ii) is a member of a class of persons or bodies prescribed for the purposes of this paragraph; (i) any staff or consultant assisting a body mentioned above in performing its functions or exercising its powers. (3) Subject to any conditions imposed under subsection (4), a person or body to whom protected information is disclosed under subsection (2) may use the information for any purpose connected with the performance of the functions, or the exercise of the powers, of the person or body. (4) AEMO may impose conditions to be complied with in relation to protected information disclosed under subsection (2). (5) Subject to any conditions imposed under subsection (4), the disclosure of protected information by a person in the ordinary course of carrying out functions as an officer or employee of, or consultant to, a body mentioned in subsection (2) is authorised. 91GCA—Authorised disclosure to particular entities for data sharing purposes (1) AEMO may disclose protected information to the following entities (each a relevant entity) if the disclosure is for a data sharing purpose mentioned in subsection (2): (a) any of the following: (i) an Australian university; (ii) a research facility that is part of an Australian university and conducting research in relation to energy; (iii) an Australian university researcher who is conducting research in relation to energy; (b) Energy Consumers Australia; (c) the Australian Renewable Energy Agency; (d) the Clean Energy Finance Corporation; (e) a prescribed body; (f) a person or body who— (i) satisfies any requirements or criteria prescribed for the purposes of this paragraph; or (ii) is a member of a class of persons or bodies prescribed for the purposes of this paragraph; (g) any staff assisting a person or body mentioned above in performing its functions or exercising its powers. (2) For the purposes of this section, each of the following is a data sharing purpose: (a) the delivery of government services; (b) informing government planning, policy or programs; (c) research in relation to energy. (3) However, AEMO must not disclose protected information under this section for any of the following purposes: (a) detecting, investigating, prosecuting or punishing— (i) an offence; or (ii) a contravention of a law punishable by a pecuniary penalty; (b) detecting, investigating or addressing acts or practices detrimental to public revenue; (c) detecting, investigating or addressing serious misconduct; (d) conducting surveillance or monitoring, or intelligence-gathering activities; (e) conducting protective or custodial activities; (f) enforcing a law relating to the confiscation of proceeds of crime; (g) preparing for, or conducting, proceedings before a court or tribunal or implementing a court or tribunal order. (4) AEMO may impose conditions to be complied with in relation to protected information disclosed under subsection (1). (5) Subject to the requirements of subsections (7), (8) and (10) and any conditions imposed under subsection (4), a relevant entity to which protected information is disclosed under subsection (1) may use the information for the data sharing purpose for which it was disclosed. (6) Subject to the requirements of subsections (7), (8) and (10) and any conditions imposed under subsection (4), a person to whom protected information is disclosed under subsection (1) may use the information in the ordinary course of carrying out functions as an officer or employee of a relevant entity. (7) A relevant entity to which protected information is disclosed for a data sharing purpose under subsection (1) must not use the information for another purpose (a secondary purpose) unless— (a) AEMO has given written consent for the use or disclosure of the information for the secondary purpose; or (b) the entity is authorised by or under another Act or law to use or disclose the information for the secondary purpose. (8) A relevant entity to which protected information is disclosed under subsection (1)— (a) must take reasonable steps to protect the information from— (i) misuse, interference or loss; and (ii) unauthorised use, access, modification or disclosure; and (b) must ensure that the information is de-identified or destroyed when the information is no longer required. (9) Subsection (10) applies if a relevant entity to which protected information is disclosed under subsection (1) reasonably suspects or becomes aware that a requirement under subsection (7) or (8) has not been complied with. (10) The entity must make a report to the AER about the non-compliance— (a) as soon as practicable, but not later than 5 business days, after the entity reasonably suspects or becomes aware that the requirement has not been complied with; and (b) in the form (if any) approved and published by the AER. (11) In this section— Australian university means a registered higher education provider— (a) that, for the purposes of the Tertiary Education Quality and Standards Agency Act 2011 of the Commonwealth, is registered in the "Australian University" provider category; and (b) that is established by or under a law of the Commonwealth or a State or Territory; Australian university researcher means— (a) a member of staff of an Australian university; or (b) an undergraduate or postgraduate student of an Australian university; or (c) a consultant to an Australian university; court or tribunal order— (a) means an order, direction or other instrument made by— (i) a court; or (ii) a judge (including a judge acting in a personal capacity) or a person acting as a judge; or (iii) a magistrate (including a magistrate acting in a personal capacity) or a person acting as a magistrate; or (iv) any other person or body that has the power to act judicially under a law of the Commonwealth or a State or Territory; or (v) a tribunal; or (vi) a member or an officer of a tribunal; and (b) includes an order, direction or other instrument that is of an interim or interlocutory nature; delivery of government services means the delivery of any of the following services by the Commonwealth or a State or Territory: (a) providing information; (b) providing services, other than services relating to a payment, entitlement or benefit; (c) determining eligibility for a payment, entitlement or benefit; (d) paying a payment, entitlement or benefit. Subsections (7), (8) and (10) are civil penalty provisions. 91GCB—Disclosure of protected information by officer or employee of, or consultant to, AEMO The disclosure of protected information by a person in the ordinary course of carrying out functions as an officer or employee of, or consultant to, AEMO is authorised. 91GD—Disclosure for purposes of court and tribunal proceedings AEMO is authorised to disclose protected information for the purposes of— (a) civil or criminal proceedings; or (b) a proceeding before the Tribunal or a tribunal established by or under a law of this jurisdiction or another participating jurisdiction. 91GE—Disclosure of document with omission of protected information (1) If a document contains both protected information and other information, AEMO may disclose the document with the omission of the protected information. (2) AEMO must include a note at the place in the document from which the protected information is omitted to the effect that protected information has been omitted from the document. 91GF—Disclosure of non-identifying information AEMO is authorised to disclose protected information if— (a) it does not disclose any elements of the information that could lead to the identification of the person to whom the information relates; or (b) the manner in which it discloses the information does not identify the person to whom that information relates. Protected information may be combined or arranged with other information to prevent the identification of the person to whom the protected information relates. 91GFA—Disclosure of information in an aggregated form AEMO is authorised to disclose information given to it in confidence, in compliance with this Law or the Rules or voluntarily, if the information has been combined or arranged with other information so that it does not reveal any confidential aspects of the information. 91GG—Disclosure of protected information for safety, proper operation of the market etc (1) AEMO is authorised to disclose protected information if— (a) the disclosure is necessary for— (i) the safety, reliability, adequacy or security of the supply of covered gas; or (ii) the safety, reliability, adequacy or security of a pipeline; or (b) the disclosure is necessary for the proper operation of a regulated gas market, a capacity auction or the Capacity Transfer and Auction Procedures; or (c) the information is in the public domain. (2) AEMO may impose conditions to be complied with in relation to information disclosed under subsection (1)(a) or (b). 91GH—Disclosure of protected information authorised if detriment does not outweigh public benefit (1) Subject to this section, AEMO is authorised to disclose protected information after the restricted period if AEMO is of the opinion— (a) that the disclosure of the information would not cause detriment to the person who has given it or to a person from whom that person received it; or (b) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment. (2) Before disclosing the protected information, AEMO must give the person who gave the protected information— (i) that AEMO wishes to disclose the information, specifying the nature of the intended disclosure; and (iii) that the person, within the period specified in the notice, may make representations to AEMO against disclosure of the information; and (3) If AEMO is aware that the person who gave the protected information in turn received the information from another person and is aware of the other person's identity and address, AEMO must, before disclosing the information give the other person— (i) that AEMO wishes to disclose the information, specifying the nature of the intended disclosure; and (iii) that the person, within the period specified in the notice, may make representations to AEMO against disclosure of the information; and (4) AEMO must consider every representation made to it by a person given an initial disclosure notice within the time specified in the notice. (5) The period specified in an initial disclosure notice must not be less than 5 business days after the date the initial disclosure notice is given to the person. (6) If, after considering the representations, AEMO wishes to disclose the protected information, AEMO must give the person given the initial disclosure notice— (a) a written notice (a further disclosure notice) stating— (i) that AEMO intends to disclose the information, specifying the nature of the intended disclosure; and (i) intends to make the disclosure; and (7) For the purposes of this section, the disclosure of anything that is already in the public domain at the time AEMO wishes to disclose it cannot cause detriment to any person referred to in subsection (2) or (3). (7a) Despite anything to the contrary in this Law, this section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to— (a) AEMO's decision under subsection (1) to disclose protected information; and (b) without limiting paragraph (a), if AEMO's decision under subsection (1) is to disclose the protected information, AEMO's opinion— (i) that the disclosure of the information would not cause detriment to the person who gave the information or, if the person who gave the information in turn received the information from another person, that other person (as the case may be); or (ii) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment. restricted period means a period of 5 business days after— (a) an initial disclosure notice has been given under this section; or (b) a further disclosure notice has been given under this section, whichever is the later.