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.

6.3 Disclosing protected information

Summary

In certain circumstances the Operator, or a government official may disclose protected information. Generally, the disclosure of this information allows government officials to comply with their mandatory reporting requirements and reportable conduct schemes.

Use of protected information by government institutions & officials

A person employed by a government institution (a government official) that receives protected information may obtain the information; make a record of the information; disclose the information or use the information only for a permitted purpose, which includes:

  • the enforcement of criminal law
  • the safety or wellbeing of children, and
  • investigatory, disciplinary or employment processes related to the safety or wellbeing of children.

The official must only use the information as part of their job role with the institution, and they must not be prevented from doing so by another Commonwealth, state or territory Act.

A person who is not an officer of the Scheme, or an officer of a government institution, may disclose protected information to a government institution. However, the disclosure must be reasonably necessary for a permitted purpose, and the disclosure must be permitted or required under a Commonwealth, state or territory law. This enables participating institutions to comply with existing mandatory reporting legislation and reportable conduct schemes.

Act reference: NRSAct section 97 Additional authorisation—disclosing etc. for a permitted purpose

Disclosures for law enforcement or child safety or wellbeing

Where the Operator is satisfied it is reasonably necessary to disclose protected information for the enforcement of criminal law, or for the safety or wellbeing of children the Operator can do so. If the protected information is specifically about a person who has applied for redress, the Operator must consider any impacts that the disclosure might have on the person.

The Operator can disclose information for law enforcement or child safety and wellbeing purposes to a government institution that has a function that relates to these purposes. Government officials working within the government institution are then permitted to obtain, record, use and disclose the protected information only in their capacity as an employee of the government institution.

The Operator can impose in writing conditions on how government officials can handle protected information received for the purposes of law enforcement or the safety and wellbeing of children. 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 96 Additional authorisation—Operator disclosing for law enforcement or child safety or wellbeing

Disclosures of protected information to a court or tribunal by a person

An officer of the Scheme cannot be required to disclose protected information or information from the Assessment Framework Policy Guidelines (the Guidelines) to a court or tribunal for the purposes of any civil proceedings. However, an officer may disclose this information if it is done for the purposes of giving effect to the NRSAct. This includes a situation where the disclosure of information is in civil proceedings for judicial review of a decision made under the Act.

An officer may also disclose information in the following circumstances:

  • if the disclosure of the information gives effect to the Act
  • in civil proceedings, but only as a result of a person providing false or misleading documents, information or statements to the Scheme
  • the person obtained the information before or separate to the Scheme.

An officer, court or tribunal cannot publish any protected information, or information from the Guidelines.

Act reference: NRSAct section 105 Disclosures to a court or tribunal

Disclosures made in good faith

A person may inadvertently disclose protected information for the purposes of the Scheme. So long as the person is or was acting in good faith, with no malicious intent, the person is not liable to any civil or criminal proceedings, or disciplinary action, for disclosing this information. The person also cannot be held to have breached any code of professional etiquette or ethics, or departed from any accepted standards of professional conduct.

Act reference: NRSAct section 97 Additional authorisation—disclosing etc. for a permitted purpose, section 105 Disclosures to a court or tribunal, section 106 Disclosing information in good faith

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