45Offence and civil penalty—use or disclosure of protected information

45 Offence and civil penalty—use or disclosure of protected information

Offence (1) A person commits an offence if: (a) the person is, or has been, an entrusted person; and (b) the person has obtained or generated information in the course of or for the purposes of: (i) administering this Act or the rules or monitoring compliance with this Act or the rules; or (ii) assisting another person to administer this Act or the rules or monitor compliance with this Act or the rules; and (c) the information is of a kind covered by subsection (3); and (d) the person uses or discloses the information.

Penalty: Imprisonment for 12 months.

Civil penalty (2) A person contravenes this subsection if: (a) the person is, or has been, an entrusted person; and (b) the person has obtained or generated information in the course of or for the purposes of: (i) administering this Act or the rules or monitoring compliance with this Act or the rules; or (ii) assisting another person to administer this Act or the rules or monitor compliance with this Act or the rules; and (c) the information is of a kind covered by subsection (3); and (d) the person uses or discloses the information.

Civil penalty: 60 penalty units.

Protected information (3) For the purposes of subsections (1) and (2), this subsection covers information (including commercially sensitive information) the disclosure of which could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence. Exception—required or authorised by law (4) Subsection (1) or (2) does not apply if the use or disclosure of the information is required or authorised by: (a) this Act or another law of the Commonwealth; or (b) a law of a State or Territory prescribed by rules made for the purposes of this paragraph.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act).

Exception—good faith (5) Subsection (1) or (2) does not apply if the person uses or discloses the information in good faith: (a) in the purported administering of this Act or the rules or purported monitoring of compliance with this Act or the rules; or (b) in assisting another person in the purported administering of this Act or the rules or purported monitoring of compliance with this Act or the rules.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act).