Section 61TM - Disclosure subject to confidentiality notice
Extract of legislation
| 61TM | Disclosure subject to confidentiality notice | |||
| (1) | Except as provided in this section, a person who— | |||
| (a) | is duly served with a confidentiality notice and, if applicable, a copy of any order extending the confidentiality notice; or | |||
| (b) | receives a copy of a confidentiality notice under subsection (8) or (9) and, if applicable, a copy of any order extending the confidentiality notice— | |||
| must not disclose a restricted matter specified in the confidentiality notice while it has effect.
Penalty: 120 penalty units or imprisonment for 12 months or both. |
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| (2) | A restricted matter specified in a confidentiality notice may be disclosed if the disclosure is made in any of the following circumstances— | |||
| (a) | in accordance with a direction or authorisation given by the Information Commissioner; | |||
| (b) | to any person where necessary for the purposes of obtaining any information, document or other thing to comply with a witness summons or a confidentiality notice, a notice cancelling a confidentiality notice or an order extending a confidentiality notice, including— | |||
| (i) | to an interpreter—if the person does not have a sufficient knowledge of the English language to understand the nature of the witness summons or confidentiality notice, notice cancelling the confidentiality notice or order extending the confidentiality notice; | |||
| (ii) | to a parent, guardian or independent person—if the person is under the age of 18 years; | |||
| (iii) | to an independent person—if the person is illiterate or has a mental, physical or other impairment which prevents the person from understanding the witness summons, confidentiality notice, notice cancelling the confidentiality notice or order extending the confidentiality notice without assistance; | |||
| (c) | for the purposes of obtaining legal advice or representation in relation to— | |||
| (i) | an investigation conducted by the Information Commissioner under this Act; or | |||
| (ii) | the person’s rights, liabilities, obligations and privileges under this Act or a relevant Act; | |||
| (d) | by a legal practitioner who receives a disclosure in the circumstances specified in paragraph (c), for the purposes of complying with a legal duty of disclosure or a professional obligation arising from their professional relationship with their client; | |||
| (e) | to any of the following persons, unless the Information Commissioner directs that the restricted matter must not be disclosed to that person— | |||
| (i) | the spouse or domestic partner of the person served with the confidentiality notice; | |||
| (ii) | the employer or manager of the person served with the confidentiality notice, or both; | |||
| (f) | in any of the following circumstances, unless the Information Commissioner directs that the restricted matter must not be disclosed in that circumstance— | |||
| (i) | to any of the following for the purpose of assisting the person to seek advice or support in relation to the investigation in respect of which the confidentiality notice has been issued— | |||
| (A) a registered health practitioner; | ||||
| (B) ‘a trade union, within the meaning of section 93AB(11) of the Competition and Consumer Act 2010 of the Commonwealth, of which the person is a member; | ||||
| (C) an employee assistance program; | ||||
| (ii) | to the Victorian WorkCover Authority for the purpose of a workers’ compensation claim; | |||
| (iii) | to a prescribed service for a purpose prescribed for that service; | |||
| (iv) | for the purpose of an application to the Fair Work Commission, including any related proceeding; | |||
| (g) | as is otherwise authorised or required to be made by or under this Act. | |||
| (3) | A restricted matter specified in a confidentiality notice may be disclosed to the IBAC if— | |||
| (a) | the IBAC referred the complaint to which restricted matter relates to the Information Commissioner under section 73A of the Independent Broad-based Anti-corruption Commission Act 2011; and | |||
| (b) | the IBAC has withdrawn the referral in accordance with section 79 of that Act. | |||
| (4) | A restricted matter specified in a confidentiality notice may be disclosed to Victoria Police if— | |||
| (a) | the Information Commissioner has disclosed information to the Chief Commissioner of Police under section 61TI relating to actual or potential criminal conduct; and | |||
| (b) | the restricted matter is relevant to an investigation by Victoria Police of the actual or potential criminal conduct. | |||
| (5) | A restricted matter specified in a confidentiality notice may be disclosed if the disclosure is made for the purposes of making— | |||
| (a) | a complaint to the IBAC under the Independent Broad-based Anti-corruption Commission Act 2011; or | |||
| (b) | a witness summons served on a person by the Victorian Inspectorate under the Victorian Inspectorate Act 2011. | |||
| (7) | A restricted matter specified in a confidentiality notice may be disclosed if the disclosure made is of information that has been published by an investigating entity or the Integrity and Oversight Committee in a report or has otherwise been made public in accordance with this or any other Act. | |||
| (8) | A person who makes a disclosure of information permitted by subsection (2) must, when making the disclosure, provide the person to whom the disclosure is made with a copy of the confidentiality notice and of any order extending the confidentiality notice, unless the person has a reasonable excuse for not doing so.
Penalty: 120 penalty units or imprisonment for 12 months or both. |
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| (9) | If in respect of a particular investigation a person who makes a disclosure of information permitted by subsection (2) receives a new confidentiality notice, a notice cancelling the confidentiality notice or an order extending the confidentiality notice, the person must as soon as reasonably practicable provide a copy of the new confidentiality notice, notice cancelling the confidentiality notice or order extending the confidentiality notice to each person to whom the disclosure has been made, unless the person has a reasonable excuse for not doing so.
Penalty: 120 penalty units or imprisonment for 12 months or both. |
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| (10) | Proceedings may only be instituted for an offence under subsection (1), (8) or (9)— (a) by the Information Commissioner; or (b) by or with the consent of the Director of Public Prosecutions. | |||
| (11) | In this section— | |||
| Fair Work Commission means the body established under section 575 of the Fair Work Act 2009 of the Commonwealth; | ||||
| investigating entity has the same meaning as in section 3 of the Public Interest Disclosures Act 2012; | ||||
| registered health practitioner means a person registered under the Health Practitioner Regulation National Law to practise a health profession (other than as a student); | ||||
| relevant Act means— | ||||
| (a) | the Public Interest Disclosures Act 2012; or | |||
| (b) | the Independent Broad-based Anticorruption Commission Act 2011; or | |||
| (c) | the Victorian Inspectorate Act 2011; or | |||
| (d) | the Ombudsman Act 1973; or | |||
| (e) | the Fair Work Act 2009 of the Commonwealth; | |||
| Victorian WorkCover Authority has the same meaning as in the Workplace Injury Rehabilitation and Compensation Act 2013. | ||||
1.1
A person who is served with a confidentiality notice must not disclose any restricted matter in the confidentiality notice while it has effect.3 There are penalties for breaching a confidentiality notice (120 penalty units or 12 months imprisonment, or both).4
See section 61TJ for information on when OVIC can issue a confidentiality notices and what a ‘restricted matter’ is.
When is disclosing a restricted matter permitted?
1.2
There are certain circumstances where a person may disclose a restricted matter in a confidentiality notice. This includes disclosures:
- in accordance with a direction or authorisation from the Office of the Victorian Information Commissioner (OVIC);16
- to any person where necessary for the purposes of obtaining any information to comply with a witness summons or confidentiality notice (for instance, to an interpreter); 17
- for the purpose of obtaining legal advice or representation;18
- by a legal practitioner who receives the disclosure for the purpose of providing legal advice;19
- to a spouse, domestic partner, employer or manager unless the Commissioner has specified otherwise;20
- to certain classes of professionals for the purpose of obtaining advice or support unless the Information Commissioner directs that it should not be;21 and
- as is otherwise authorised or required to be made by or under the Act.22
1.3
If a person makes a disclosure under one of the circumstances outlined above, they must provide the person to whom the disclosure is made with:
1.4
A penalty may apply for not doing this.26
Other circumstances where disclosing a restricted matter is permitted
1.5
A person may disclose a restricted matter:
- to the Independent Broad-based Anti-corruption Commission (IBAC) if IBAC originally referred the complaint to OVIC but then withdrew that referral;32
- to Victoria Police if OVIC disclosed information to the Chief Commissioner of Police under section 61TI (relating to actual or potential criminal conduct) and the restricted matter is relevant to an investigation by Victoria Police of that conduct;33
- if the disclosure is made for the purposes of:
1.6
A person may also disclose a restricted matter if the information has been published by an investigating entity (such as IBAC) or the Integrity and Oversight Committee in a report or has otherwise been made public in accordance with an Act.36
More information
For information on who oversees OVIC’s investigations, see section 61ZD – Office of the Information Commissioner to report to the Victorian Inspectorate on issue of notice to produce or attend.
- Freedom of Information Act 1982 (Vic), section 61TM(1).
- Freedom of Information Act 1982 (Vic), section 61TM(1).
- Freedom of Information Act 1982 (Vic), section 61TM(1).
- Freedom of Information Act 1982 (Vic), section 61TM(1).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(a).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(b).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(c).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(d).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(e).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(f).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(g).
- Freedom of Information Act 1982 (Vic), section 61TM(8).
- Freedom of Information Act 1982 (Vic), section 61TM(9).
- Freedom of Information Act 1982 (Vic), section 61TM(9).
- Freedom of Information Act 1982 (Vic), section 61TM(9).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(a).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(b).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(c).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(d).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(e).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(f).
- Freedom of Information Act 1982 (Vic), section 61TM(2)(g).
- Freedom of Information Act 1982 (Vic), section 61TM(8).
- Freedom of Information Act 1982 (Vic), section 61TM(9).
- Freedom of Information Act 1982 (Vic), section 61TM(9).
- Freedom of Information Act 1982 (Vic), section 61TM(9).
- Freedom of Information Act 1982 (Vic), section 61TM(3). IBAC must have referred the complaint to the Information Commissioner under section 73A of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) and then withdrew the referral under section 79 of that Act.
- Freedom of Information Act 1982 (Vic), section 61TM(4).
- Freedom of Information Act 1982 (Vic), sections 61TM(5)(a) and 61TM(5)(b).
- Freedom of Information Act 1982 (Vic), sections 61TM(6)(a) and 61TM(6)(b).
- Freedom of Information Act 1982 (Vic), section 61TM(7).
- Freedom of Information Act 1982 (Vic), section 61TM(3). IBAC must have referred the complaint to the Information Commissioner under section 73A of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) and then withdrew the referral under section 79 of that Act.
- Freedom of Information Act 1982 (Vic), section 61TM(4).
- Freedom of Information Act 1982 (Vic), sections 61TM(5)(a) and 61TM(5)(b).
- Freedom of Information Act 1982 (Vic), sections 61TM(6)(a) and 61TM(6)(b).
- Freedom of Information Act 1982 (Vic), section 61TM(7).
