80Confidential commercial information

#### 80 Confidential commercial information (1) In this Act: > information provider means a person who provides confidential commercial information to an NHMRC officer. > NHMRC officer means a person who is: (a) the CEO; or (b) a member of the Council or of a committee (other than the Embryo Research Licensing Committee of the NHMRC); or (c) a member of the staff of the NHMRC; or (d) a consultant engaged under section 46; or (e) a person assisting the CEO, the Council or a committee (other than the Embryo Research Licensing Committee of the NHMRC) in the performance of functions under this Act; or (f) the Commissioner; or (g) a person assisting the Commissioner in the performance of his or her functions under this Act. (2) A person commits an offence if: (a) the person is an NHMRC officer; and (b) the person discloses information; and (c) the information was acquired by the person because of being an NHMRC officer; and (d) the information is in respect of any matter under consideration by the CEO, the Council, a committee (other than the Embryo Research Licensing Committee of the NHMRC) or the Commissioner; and (e) the person knows, or has reasonable grounds for believing, that the information is confidential commercial information. Penalty: Imprisonment for 2 years. (3) Subsection (2) does not apply to anything done in the performance of duties, or in the exercise of powers or functions, under this Act. (4) Subsection (2) does not preclude the disclosure of confidential commercial information to a court in any proceeding, but the court must do all things necessary to prevent disclosure of that information to any other person, except for the purposes of the proceedings. (5) Despite subsection (2), the CEO may deal with confidential commercial information acquired by an NHMRC officer (other than the Commissioner or a person assisting the Commissioner in the performance of his or her functions under this Act) because of being such an NHMRC officer, in the following ways: (a) if the Minister certifies in writing that it is necessary in the public interest for the information to be disclosed to a specified person, the CEO may disclose the information to that person; (b) the CEO may disclose the information to a person or body specified in the regulations; (c) if, in the CEO’s opinion, the information provider has expressly or impliedly authorised another person to receive the information, the CEO may disclose the information to that other person. (6) Despite subsection (2), the Commissioner may deal with confidential commercial information acquired by the Commissioner or a person assisting the Commissioner because of being the Commissioner or a person assisting the Commissioner, in the following ways: (a) if the Minister certifies in writing that it is necessary in the public interest for the information to be disclosed to a specified person, the Commissioner may disclose the information to that person; (b) the Commissioner may disclose the information to a person or body specified in the regulations; (c) if, in the Commissioner’s opinion, the information provider has expressly or impliedly authorised another person to receive the information, the Commissioner may disclose the information to that other person. (7) The CEO or the Commissioner must not disclose any confidential information under paragraph (5)(c) or (6)(c) unless he or she: (a) has notified the information provider in writing of his or her intention to disclose the information; and (b) has given the information provider a reasonable opportunity to comment on the proposed disclosure of the information; and (c) has considered any comments made by the information provider. Penalty: Imprisonment for 2 years (8) If the CEO or the Commissioner discloses confidential commercial information to a person or body under this section: (a) that person or body; and (b) any person under the control of that person or body; is subject to the same obligations as a person referred to in subsection (2) who had acquired the information in the circumstances set out in that subsection. (9) Despite subsection (2), the CEO may permit the information to be disclosed to: (a) the Secretary of a Commonwealth Department; or (b) the chief officer of a Commonwealth authority; or (c) the chief officer of a State or Territory Department or authority; or (d) a person assisting under an arrangement entered into under section 48 (other than an arrangement to assist the Embryo Research Licensing Committee of the NHMRC); for the purposes of giving effect to arrangements entered into under section 48. (10) Despite subsection (2), the Commissioner may permit the information to be disclosed to a person assisting the Commissioner for the purposes of giving effect to an arrangement entered into under section 72. (11) A person: (a) to whom this section applies; and (b) to whom confidential commercial information is disclosed under subsection (9) for the purposes of an arrangement under section 48; and (c) who knows, or has reasonable grounds for believing, that the information is confidential commercial information; must not at any time, directly or indirectly, disclose the information to any person, except for the purposes of the arrangement. Penalty: Imprisonment for 2 years (12) Subsection (11) applies to a person who is or was: (a) a Secretary or chief officer of a Commonwealth or State Department; or (b) a chief officer of a Commonwealth or State authority; or (c) a person under the control of a person mentioned in paragraph (a) or (b). (13) The powers conferred by subsections (9) and (10) are in addition to, and not in derogation of, the powers conferred by subsections (5) and (6). (14) Nothing in subsection (5), (6), (9) or (10) is to be taken to limit the generality of subsection (4) or the operation of subsection (3).