The Building and Construction Industry Improvement Act 2005 (BCII Act) protects the confidentiality of information obtained by the Office of the Australian Building and Construction Commissioner (ABCC).
It is a criminal offence for current or former ABCC staff to record or disclose “protected information” unless one of the exceptions in section 65 of the BCII Act applies.
The maximum penalty for breach of section 65 is 12 months imprisonment.
What is protected information?
Protected information is information that:
- relates to a person, including an organisation, other than the ABCC staff member; and
- was disclosed or obtained for the purposes of the BCII Act; and
- was obtained in the course of “official employment”.
Specifically, protected information includes information that comes from:
- documents produced in answer to a notice issued by an ABCC inspector
- documents provided in answer to a requirement to produce by an ABCC inspector
- documents or information provided to the ABC Commissioner or his delegate
- evidence given to the ABC Commissioner or Deputy ABC Commissioner
- information disclosed in an interview to an ABCC inspector
- information provided in a Hotline enquiry
- information provided to any ABCC staff member by a building industry participant.
Who does section 65 apply to?
The prohibition on disclosure applies to all of the following:
- the ABC Commissioner
- a Deputy ABC Commissioner
- an ABCC Inspector
- all ABCC staff employed under the Public Service Act
- all consultants engaged by the ABC Commissioner
- lawyers seconded to the ABCC and
- a former staff member who has since left the employment of the ABCC.
In summary, the section applies to all ABCC staff and consultants engaged to provide services for the ABCC, and continues beyond the period of employment or consultancy.
In what circumstances may protected information be recorded or disclosed?
Each of the following is a permitted exception to the prohibition:
- recording or disclosure for the purposes of the BCII Act
- recording or disclosure in the course of performance of official duties with the ABCC
- recording or disclosure in accordance with the regulations, and
- disclosure to a Commonwealth, State or Territory employee, appointee or authority for the purpose of enforcement of a Commonwealth, State or Territory law in respect of building work or the conduct of building industry participants.
The ABCC may make a record of, or disclose, protected information, in order to carry out any of the functions of the ABCC. These functions include:
- referring matters to other relevant agencies and bodies;
- investigating suspected breaches of the BCII Act, Independent Contractors Act 2006(IC Act), Workplace Relations Act 1996 (WR Act) or a Commonwealth industrial instrument;
- instituting, or intervening in, proceedings under the BCII, IC or WR Act;
- providing representation to a building industry participant in relevant legal proceedings.
Exceptions do not apply for disclosure to Minister
The exceptions set out above do not apply to a disclosure to the Minister, the Minister’s Office or to any other Minister. The only disclosure by ABCC staff to a Minister that is permitted by the BCII Act is where the Minister has directed in writing that the ABCC give a ‘specified report’ relating to the ABC Commissioner’s functions, or in the ABCC annual report.
Will disclosure in published reports of the ABCC be an offence?
No, provided that:
- the disclosure is made in a specified report or annual report to the Minister under the BCII Act
- in the case of a specified report, there is a written direction from the Minister for such a report, and
- the disclosure does not include the name of, or identifying information about, an individual or other information about the individual’s affairs.
Will disclosure infringe the Federal Privacy Principles?
No. Disclosure of personal information that is protected information under one of the excepted circumstances above is authorised by law for the purposes of Information Privacy Principle 11, under section 14 of the Privacy Act 1988 (Cth).
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Protected Information fact sheet (PDF 165KB)
The information contained in this fact sheet is correct as at 25 June 2008.
This material is for general information only. You should seek legal advice in relation to your particular circumstances. The Australian Government, its employees and agents do not accept any liability for action taken in reliance on this document and disclaim all liability arising from any error or omission. ABN 68 003 725 098
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