Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) A person shall not, directly or indirectly, except in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act or for the purpose of enabling a person to perform functions in relation to a medicare program or for the purposes of enabling a person to perform functions under the Medicare Guarantee Act 2017 , the Dental Benefits Act 2008 , the My Health Records Act 2012 (whether as a delegate or otherwise) or the indemnity legislation, and 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 with respect to the affairs of another person acquired by him or her in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act.
(2) A person who is, or has been, an officer shall not, except for the purposes of this Act, be required:
(a) to produce in court any document that has come into his or her possession or under his or her control in the performance of his or her duties or functions under this Act; or
(b) to divulge or communicate to a court any matter or thing that has come under his or her notice in the performance of any such duties or functions.
(3) Notwithstanding anything contained in the preceding provisions of this section, the Secretary or the Chief Executive Medicare may:
(a) if the Minister certifies, by instrument in writing, that it is necessary in the public interest that any information acquired by an officer in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act, should be divulged, divulge that information to such person as the Minister directs; or
(c) divulge any such information to a person who, in the opinion of the Minister, is expressly or impliedly authorized by the person to whom the information relates to obtain it.
(3A) Notwithstanding anything contained in the preceding provisions of this section, the Secretary or the Chief Executive Medicare may divulge any information acquired by an officer in the performance of duties, or in the exercise of powers or functions, under this Act to an authority or person if:
(a) the authority or person is a prescribed authority or person for the purposes of this subsection; and
(b) the information is information of a kind that may, in accordance with the regulations, be provided to the authority or person.
(3AA) Despite subsection (1), an officer may make a record of information with the express or implied authorisation of the person to whom the information relates.
(4) An authority or person to whom information is divulged under subsection (3) or (3A), and any person or employee under the control of that authority or person, shall, in respect of that information, be subject to the same rights, privileges, obligations and liabilities under subsections (1) and (2) as if he or she were a person performing duties under this Act and had acquired the information in the performance of those duties.
(4A) This section does not prohibit:
(a) the provision to a person of a document that was provided to the Chief Executive Medicare by the person in relation to a claim for a medicare benefit; or
(b) the divulging or communicating to a person of information relating to the person; or
(c) information that:
(i) has been provided to a prescribed professional disciplinary body or a prescribed professional regulatory body; and
(ii) was contained in a claim for a medicare benefit;
from being used by the body for the purpose of any investigation or inquiry being conducted by the body in the performance of its functions or the exercise of its powers.
(5) Nothing in the preceding provisions of this section prohibits the publication of statistics by the Commonwealth, by the Chief Executive Medicare or by the Commonwealth Statistician but such statistics shall not be published in a manner that enables the identification of an individual patient or an individual practitioner.
(5A) If a person applies to an authorised officer for information about a hospital, this section does not prohibit that authorised officer or any other authorised officer providing all or any of the following information in respect of the hospital to the applicant:
(a) the name and address of the hospital;
(b) the number of beds available in the hospital to patients;
(c) whether or not the hospital is a private hospital or a recognised hospital;
(d) the kinds of services (for example, obstetric services or psychiatric services) provided at the hospital;
(e) whether or not the hospital is a teaching hospital.
(5B) In subsection (5A):
"authorised officer" means:
(a) the Secretary; or
(b) an APS employee in the Department.
(5E) This section does not prohibit the Chief Executive Medicare, or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ), from providing to:
(a) the Director of Professional Services Review appointed under section 83; or
(aa) an Associate Director of Professional Services Review appointed under section 83A; or
(b) a Committee set up under section 93; or
(c) the Determining Authority established by section 106Q; or
(d) any person providing services to any of the above;
information to help the Director, Associate Director, Committee or Authority in the performance of functions or duties, or the exercise of powers, under Part VAA, or to assist a person referred to in paragraph (d) in the provision of services referred to in that paragraph.
(5F) In subsection (5E):
"services" means:
(a) clerical or administrative services; and
(b) investigative services; and
(c) advisory services provided by a practitioner; and
(d) legal services.
(5G) This section does not prohibit a person from providing information for inclusion in the register kept under Part 2 of the Australian Immunisation Register Act 2015 .
(5H) This section does not prohibit a person from providing information for inclusion in the register kept under Part 2 of the National Cancer Screening Register Act 2016 .
(5J) Notwithstanding anything contained in the preceding provisions of this section, a person may divulge information to a Commonwealth entity for the purpose of facilitating the matching of that information by the Commonwealth entity under subsection 132B(1) of the National Health Act 1953 .
(6) Notwithstanding anything contained in subsections (1) and (2), where:
(a) a person has been convicted of:
(i) an offence against Division 3 of Part IIBA or section 128A, 128B or 129AA of this Act; or
(ii) an offence against section 6 of the Crimes Act 1914 , or section 11.1, 11.4 or 11.5 of the Criminal Code , that relates to an offence referred to in subparagraph (i); or
(b) an order has been made in relation to a person under section 19B of the Crimes Act 1914 in relation to an offence referred to in subparagraph (a)(i) or (ii); or
(ba) a pecuniary penalty order has been made against a person in respect of a contravention of a civil penalty provision in Division 2 of Part IIBA of this Act;
the Secretary or the Chief Executive Medicare may divulge any information acquired by an officer in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act that concerns a matter referred to in paragraph (a), (b) or (ba) to:
(c) the Secretary of the Department of Social Security; or
(ca) the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997 ); or
(d) the Secretary of the Veterans' Affairs Department; or
(e) a person or body who, under the National Law, is required or permitted to:
(i) take disciplinary action with respect to practitioners, optometrists, midwives or nurse practitioners; or
(ii) investigate practitioners, optometrists, midwives or nurse practitioners in connection with the taking of such disciplinary action; or
(f) a director, secretary or employee of a private health insurer who is authorized by the Secretary or the Chief Executive Medicare, by instrument in writing, for the purposes of this subsection.
(7) Notwithstanding anything contained in subsection (1) or (2), where the Minister, by instrument in writing, certifies that it is desirable for such of the following purposes as he or she specifies in the certificate, that is to say:
(a) the administration of an Act administered by the Minister for Social Security;
(b) the administration of an Act administered by the Veterans' Affairs Minister;
(ba) the administration of the Migration Act 1958 ;
(c) the administration of the National Law to the extent it provides for the registration of practitioners, optometrists, midwives or nurse practitioners;
(d) the carrying on of the business of a specified private health insurer or a private health insurer included in a specified class of private health insurers;
that information of a kind referred to in the certificate, being information acquired by an officer in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act, should be divulged, the Secretary or the Chief Executive Medicare may divulge information of that kind:
(e) if the certificate specifies a purpose of the kind referred to in paragraph (a)--to the Secretary of the Department of Social Security or to the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997 ); or
(f) if the certificate specifies a purpose of the kind referred to in paragraph (b)--to the Secretary of the Veterans' Affairs Department; or
(fa) if the certificate specifies a purpose of the kind referred to in paragraph (ba)--to the Secretary of the Immigration Department; or
(g) if the certificate specifies a purpose of the kind referred to in paragraph (c)--a person or body who, under the National Law, is required or permitted to:
(i) take disciplinary action with respect to practitioners, optometrists, midwives or nurse practitioners; or
(ii) investigate practitioners, optometrists, midwives or nurse practitioners in connection with the taking of such disciplinary action; or
(h) if the certificate specifies a purpose of the kind referred to in paragraph (d)--to a director, secretary or employee of each private health insurer to which the certificate relates, being a director, secretary or employee who is authorized by the Secretary or the Chief Executive Medicare, by instrument in writing, for the purposes of this subsection.
(8) Information relating to the rendering of a professional service shall not be divulged in pursuance of subsection (6) or (7) in a manner that is likely to enable the identification of the person to whom that service was rendered unless:
(a) the person to whom that service was rendered is a person referred to in paragraph (6)(a), (b) or (ba); or
(b) the Minister certifies that he or she has reasonable grounds for suspecting that the person to whom that service was rendered has committed, or is committing, an offence of the kind referred to in subparagraph (6)(a)(i) or (ii) or a contravention of a civil penalty provision referred to in paragraph (6)(ba).
(9) A person to whom information is divulged under subsection (6) or (7) and any person or employee under the control of the first - mentioned person shall not, directly or indirectly, except:
(a) in the case of the Secretary of the Department of Social Security or a person or employee under the control of the Secretary of the Department of Social Security--in the performance of his or her duties, or in the exercise of his or her powers or functions, under an Act administered by the Minister for Social Security; or
(aa) in the case of the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997 )--in the performance of powers or functions under an Act administered by the Minister for Social Security; or
(b) in the case of the Secretary of the Veterans' Affairs Department or a person or employee under the control of the Secretary--in the performance of his or her duties, or in the exercise of his or her powers or functions, under an Act administered by the Veterans' Affairs Minister; or
(ba) in the case of the Secretary of the Immigration Department or a person or employee under the control of the Secretary--in the performance of his or her duties, or in the exercise of his or her powers or functions, under the Migration Act 1958 ; or
(c) in the case of a person (the first person ) or body referred to in paragraph (6)(e) or (7)(g), or a person or employee under the control of the first person or body--in the performance of his or her duties, or in the exercise of his or her powers or functions, under the National Law; or
(d) in the case of a director, secretary or employee of a private health insurer or a person or employee under the control of such a person--in the performance of his or her duties, or in the exercise of his or her powers or functions in relation to the carrying on of the business of the insurer;
and while he or she is, or after he or she ceases to be, such a person, make a record of, or divulge or communicate to any person, any information so divulged.
(10) A person to whom information is divulged under subsection (6) or (7) or a person or employee under the control of the first - mentioned person shall not, except in the performance of duties or the exercise of powers or functions referred to in whichever of paragraphs (9)(a), (aa), (b), (ba), (c) and (d) is applicable, be required:
(a) to produce in court any document that has come into his or her possession or under his or her control under subsection (6) or (7); or
(b) to divulge or communicate to a court any matter or thing that has come under his or her notice under subsection (6) or (7).
(11) The powers conferred by subsections (6) and (7) are in addition to, and not in derogation of, the powers conferred by subsection (3) or (3A).
(12) The powers conferred by subsection (6) are in addition to, and not in derogation of, the powers conferred by subsection (7).
(13) Nothing in subsection (3), (3A), (6) or (7) shall be taken to affect the exception referred to in subsection (1) or (2).
(14) Where:
(a) a person solicits the disclosure of protected information from an officer or another person; and
(b) the disclosure would be in contravention of this section; and
(c) the first - mentioned person knows or ought reasonably to know that the information is protected information;
the first - mentioned person commits an offence, whether or not any protected information is actually disclosed.
(15) Where protected information is disclosed to a person in contravention of this section, the person commits an offence if he or she knows or ought reasonably to know that the disclosure is in contravention of this section and:
(a) he or she in any way solicited the disclosure of the information; or
(b) he or she discloses the information to another person; or
(c) he or she uses the information otherwise than by disclosing it to another person.
(17) Where:
(a) a person is convicted of an offence under subsection (14); and
(b) the person acted as an employee or agent of another person in soliciting the disclosure of the information;
the other person commits an offence.
(17A) An offence under subsection (17) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
(18) It is a defence to a prosecution for an offence against subsection (17) if the employee or agent was acting outside the scope of his or her authority as an employee or agent in soliciting the disclosure of the information.
Note: The defendant bears an evidential burden in relation to the matter in subsection (18). See subsection 13.3(3) of the Criminal Code .
(19) Where:
(a) a person is convicted of an offence under subsection (15); and
(b) the person acted as an employee or agent of another person in obtaining the information;
the other person commits an offence.
(19A) An offence under subsection (19) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
(20) It is a defence to a prosecution for an offence against subsection (19) if the employee or agent's action described in subsection (15) was outside the scope of his or her authority as an employee or agent.
Note: The defendant bears an evidential burden in relation to the matter in subsection (20). See subsection 13.3(3) of the Criminal Code .
(21) A person who:
(a) offers to supply (whether to a particular person or otherwise) information about another person; and
(b) knows that the information is protected information;
commits an offence.
(22) A person who:
(a) holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person; and
(b) knows that the information is protected information;
commits an offence.
(23) The penalty for an offence against subsection (14), (15), (17), (19), (21) or (22) is imprisonment for a period not exceeding 2 years.
(24) Nothing in this section has the effect that an officer exercising or performing his or her duties, functions or powers under, or in relation to, this Act commits an offence.
(25) In this section, unless the contrary intention appears:
"indemnity legislation" means:
(a) the Medical Indemnity Act 2002 ; and
(c) the Medical Indemnity (Run - off Cover Support Payment) Act 2004 ; and
(e) the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 ; and
(f) the Midwife Professional Indemnity (Run - off Cover Support Payment) Act 2010 .
"officer" means a person performing duties, or exercising powers or functions, under or in relation to this Act or a medicare program.
"protected information" means information about a person that is held in the records of the Department.