35Officers to observe confidentiality

#### 35 Officers to observe confidentiality (1) In this section, officer means: (a) the Ombudsman; (b) a Deputy Ombudsman; (c) a person who is a member of the staff referred to in subsection 31(1); or (d) a person, not being a person referred to in paragraph (b) or (c), to whom the Ombudsman has delegated any of his or her powers under section 34 or who is an authorized person; or (e) a person who is made available to the Ombudsman as mentioned in subsection 8(12); or (f) a person appointed by the Private Health Insurance Ombudsman under section 20ZC (appointment of mediators); or (g) a person engaged by the Ombudsman under section 31A. (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 to any person, 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 or under Division 7 of Part V of the Australian Federal Police Act 1979, 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). Penalty: 5 penalty units. (3) Subsection (2) does not prevent an officer: (a) from making a record of, or divulging or communicating to any person, 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; or (b) from divulging or communicating information to a person: (i) if the information was given by an officer of a Department or prescribed authority in the performance of his or her duties as such an officer—with the consent of the principal officer of the Department or authority or of the responsible Minister; or (ia) if the information was given by a person who is, or is an employee of, a Commonwealth service provider of a Department or prescribed authority under a contract—with the consent of the principal officer of the Department or prescribed authority or of the responsible Minister; or (ii) if the information was given by a person otherwise than as set out in subparagraph (i) or (ia)—with the consent of the person who gave the information. (3A) Subsection (2) does not prevent an officer from divulging or communicating IPO information to an IGIS official if: (a) the information is relevant to the functions or powers of the Inspector‑General of Intelligence and Security; and (b) the Ombudsman is satisfied on reasonable grounds that the Inspector‑General of Intelligence and Security has satisfactory arrangements in place for protecting the information. (3B) Subsection (2) does not prevent an officer from divulging or communicating IPO information to an Australian Designated Authority official if: (a) the information is relevant to the Australian Designated Authority’s functions or powers under Schedule 1 to the Telecommunications (Interception and Access) Act 1979; and (b) the Ombudsman is satisfied on reasonable grounds that the Australian Designated Authority has satisfactory arrangements in place for protecting the information. (3C) Subsection (2) does not prevent an officer from divulging or communicating information if doing so in accordance with an authorisation under section 21AZG. (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 findings, 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 9(3)(a), (b), (c), (d) or (e), 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): (c) divulge or communicate to any person 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 to any person; or (e) furnish such a document, or a copy of, or an extract from, such a document, to any person. 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 copy of or an extract from a document referred to in that subsection 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; or (d) from giving information or a document to the Inspector‑General of Intelligence and Security in accordance with section 35AB. (6A) Subsection (2) does not prevent the Ombudsman, or an officer acting on behalf of the Ombudsman, from giving information or documents under paragraph 6(4D)(e). Sharing information about private health insurers among agencies (6B) Subsections (2) and (5) do not prevent an officer, in the performance of his or her duties as an officer, from disclosing information mentioned in subsection (6C) in accordance with subsection (6D). (6C) For subsection (6B), the information is information that: (a) relates to any or all of the following: (i) a private health insurer; (ii) an applicant to become a private health insurer; (iii) a person carrying on health insurance business; (iv) a director or officer of a person mentioned in subparagraph (i), (ii) or (iii); and (b) is not information of a kind specified in the Private Health Insurance (Information Disclosure) Rules as information that must not be disclosed under section 323‑10 of the Private Health Insurance Act 2007. (6D) For subsection (6B), the officer may disclose the information to the following: (a) the Health Minister; (b) the Secretary of the Health Department; (c) an APS employee in, or a person holding or performing the duties of an office in, the Health Department; (d) an APRA member, within the meaning of the Australian Prudential Regulation Authority Act 1998; (e) an APRA staff member, within the meaning of the Australian Prudential Regulation Authority Act 1998; (f) the Chief Executive Medicare; (g) a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973); if the disclosure is made in accordance with any requirements in the Private Health Insurance (Information Disclosure) Rules. (7) Subject to subsection (7A), where the Ombudsman proposes, for purposes connected with the exercise of his or her powers or performance of his or her functions, 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 satisfy himself or herself 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. (7A) 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). (8) A person who is or has been an officer is not compellable, in any proceedings before a court (whether exercising federal jurisdiction or not) or before a person authorized by a law of the Commonwealth or of a State or Territory, or by consent of parties, to hear, receive and examine evidence, to disclose any information acquired by him or her by reason of his or her being or having been an officer, being information that was disclosed or obtained under the provisions of this Act or under Division 7 of Part V of the Australian Federal Police Act 1979. (9) In this section: > Australian Designated Authority has the same meaning as in Schedule 1 to the Telecommunications (Interception and Access) Act 1979. > Australian Designated Authority official means: (a) the Australian Designated Authority; or (b) a person who: (i) is an APS employee in the Department administered by the Attorney‑General; and (ii) has duties relating to the functions or powers of the Australian Designated Authority under Schedule 1 to the Telecommunications (Interception and Access) Act 1979. > IGIS official has the same meaning as in the Telecommunications (Interception and Access) Act 1979. > IPO information means: (a) protected information within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979; or (b) information relevant to the operation of that Schedule.