The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

6.2 How can the Operator use protected information?

Introduction

Protected information should not be handled in any way by a person without an authorised reason for doing so. This includes obtaining, recording and disclosing information to another person, and using information. This is a necessary protection to ensure the safety and privacy of information collected about people and institutions, and to ensure the public retains confidence in the Scheme.

The Operator can disclose protected information held by the Scheme about a person or institution to another officer or government institution only in circumstances authorised under the Scheme's legislation.

Disclosures to nominees

The Operator can disclose protected information provided by a person who has applied for redress to that person's assistance nominee or legal nominee. The nominee needs this information so they can be properly informed and act in the best interest of the person they are assisting.

Act reference: NRSAct section 94 Additional authorisation—Operator disclosing to nominee

Disclosures in the public interest or for another specified purpose

The Operator may disclose protected information provided to, or obtained by an officer of the Scheme for the purposes of the Scheme if the Operator certifies that the disclosure is necessary in the public interest in a particular case or classes of cases, or the disclosure is to:

  • a person or institution who is authorised to receive the information about that person or institution
  • the Chief Executive of Centrelink or Medicare where it relates to a Centrelink or Medicare program respectively, or
  • the head of a government institution for the purpose of that institution.

A person who receives protected information under one of the above authorisations can only obtain, record, use or disclose the protected information for the purposes it was disclosed to them.

These Operator may also disclose protected information about an institution to a person where it is necessary to do so for the purposes of encouraging an institution to participate in the Scheme. For example, the Scheme may disclose protected information to states, territories or non-government institutions such as peak bodies to encourage institutions not yet participating in the Scheme to join the Scheme.

Act reference: NRSAct section 95 Additional authorisation—Operator disclosing in public interest or for another specified purpose

Disclosures of non-participating institutions

The Operator may publicly disclose that a non-government institution is not participating or partly-participating, even if the information is protected, if they have been identified in a redress application and/or the Operator has reasonable grounds to believe that the institution may be connected with abuse of a person that is within the scope of the Scheme.

The Operator may also disclose to an applicant that a non-government institution is not participating or partly-participating if the person has applied for redress and the institution is identified in their application and/or the Operator has reasonable grounds to believe that the institution may be connected with their abuse and that abuse is within the scope of the Scheme.

Information that can be disclosed includes that the Operator has contacted the institution about participating in the Scheme and the institution has not responded, that the institution does not intend to participate in the Scheme or that the institution intends to participate in the Scheme but this information is not yet available on the website.

In either of the above scenarios, the Operator cannot disclose the identity of any other person who has applied for redress under the Scheme or the Operator has reasonable grounds to believe may have been abused.

The Operator may also publicly disclose if the Operator has contacted the institution and has not responded, if the institution intends to participate or if the institution does not intend to participate. However, the Operator cannot disclose the identity of a survivor.

Act reference: NRSAct section 95A Additional authorisation—Operator publicly disclosing that institution is not participating in the scheme, section 95B Additional authorisation—Operator disclosing to applicant that institution is not participating in the scheme

Disclosures about financial management orders

The Operator may disclose protected information about a person who has applied for redress to a government institution, such as a Public Trustee of a state or territory, if the Operator believes on reasonable grounds that the applicant is or may become subject to a formal financial management order.

The Operator may do so for the purposes of determining whether the applicant is subject to a financial management order, or whether a government institution has management of the applicant’s affairs, in relation to their redress application.

Officials working within government institutions are permitted to obtain, record, use and disclose the protected information only in their capacity as an employee of the government institution.

The Operator may impose conditions in writing on how government officials manage protected information received for the purposes of identifying financial management orders. Any person who receives protected information with conditions but engages in conduct (within the meaning of the Criminal Code Act 1995) that breaches those conditions may be subject to a penalty of 2 years imprisonment, 120 penalty units, or both. Any instrument containing conditions specified by the Scheme in writing is not a legislative instrument.

Act reference: NRSAct section 96A Additional authorisation—Operator disclosing to public trustee etc. in relation to financial management orders

Rules on the disclosure of protected information

The Operator may only certify the disclosure of protected information, if the disclosure of protected information is necessary and in the public's interest. The Operator must have regard to the impact of the disclosure on the person and be satisfied that:

  • the information cannot reasonably be obtained from a source other than the Department of Social Services or Services Australia, and
  • the information is
    • about the protection of public revenue or for investigations, prosecution and prevention of criminal offences
    • to correct a mistake of fact in relation to the administration of the Scheme
    • to brief a Commonwealth, state or territory government minister on relevant issues
    • to help a court, coronial inquiry, Royal Commission, department or other authority to locate a missing person or register a deceased person and administer their estate, including to locate a relative or beneficiary, or
    • for research, statistical analysis or policy development into matters of institutional child sexual abuse, and
  • the person to whom the information will be disclosed has a genuine and legitimate interest in the information related to the purposes described above, or is a minister.

Act reference: NRS Rules Part 11 Disclosure of protected information

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