65ABProtection of information—Merit Protection Commissioner’s functions etc.

#### 65AB Protection of information—Merit Protection Commissioner’s functions etc. Definitions (1) In this section: > entrusted person means any of the following: (a) the Merit Protection Commissioner; (aa) a delegate of the Merit Protection Commissioner; (b) a person acting under the direction or authority of the Merit Protection Commissioner; (c) a member of staff assisting the Merit Protection Commissioner; (d) a member of a committee established or appointed by the Merit Protection Commissioner under the determinations; (e) any other person prescribed by the determinations for the purposes of this paragraph. > prescribed entrusted person means an entrusted person of a kind prescribed by determinations for the purposes of this definition. > protected information means information that was obtained by an entrusted person in connection with the performance of functions or duties, or the exercise of powers, under: (a) subsection 48(1) or (2); or (b) section 48A; or (c) any other provision of this Act or the determinations prescribed by the determinations for the purposes of this paragraph. Prohibition on disclosure or other use of protected information (2) Except as authorised by this section or the determinations, a person who is, or was, an entrusted person must not, directly or indirectly, make a record of, disclose or otherwise use protected information. > Note: Section 122.4 of the Criminal Code creates an offence in relation to the disclosure of information by Commonwealth officers. Authorised disclosure or other use of protected information (3) An entrusted person may make a record of, disclose or otherwise use protected information for the purposes of, or in connection with, the performance of functions or duties, or the exercise of powers, under this Act or the determinations. Authorised disclosure of protected information by the Merit Protection Commissioner (4) The Merit Protection Commissioner may disclose protected information in a report prepared for purposes connected with the performance of the functions, or the exercise of the powers, of the Merit Protection Commissioner under this Act or the determinations, if the Merit Protection Commissioner is satisfied that the disclosure is necessary for the purpose of setting out the grounds for the conclusions and recommendations contained in the report. (5) Subject to subsection (6), the Merit Protection Commissioner may disclose protected information to a person, or to the public or a section of the public, if the Merit Protection Commissioner is satisfied that: (a) the disclosure: (i) is in the interests of a Department or a person; or (ii) is in the public interest; and (b) the disclosure is not likely to interfere with a review or inquiry under this Act or the determinations. (6) The Merit Protection Commissioner must not disclose the name of an individual, or any other material that would enable an individual to be identified, in protected information that is disclosed under subsection (5), unless the Merit Protection Commissioner is satisfied that the disclosure is fair and reasonable in all the circumstances. Compellability of entrusted persons to give evidence (7) A person who is, or was, an entrusted person (other than a prescribed entrusted person) is not compellable in any proceeding: (a) before a court (whether exercising federal jurisdiction or not); or (b) before a person authorised by a law of the Commonwealth or a State or Territory, or by consent of the parties, to hear, receive and examine evidence; to disclose protected information that was obtained in connection with the performance of functions or duties, or the exercise of powers, under: (c) paragraph 48(1)(a), (b), (c), (d) or (e); or (d) any other provision of this Act or the determinations prescribed by the determinations for the purposes of this paragraph. > Note: Prescribed entrusted person is defined in subsection (1) of this section. Competence of certain entrusted persons to give evidence (8) A person who is, or was, a prescribed entrusted person is not competent, and cannot be compelled, to disclose protected information in any proceeding: (a) before a court (whether exercising federal jurisdiction or not); or (b) before a person authorised by a law of the Commonwealth or a State or Territory, or by consent of the parties, to hear, receive and examine evidence. > Note: Prescribed entrusted person is defined in subsection (1) of this section.