Confidential information is usually a defined term in a contract and will have a definition similar to information that is by its nature confidential and which is designated by a party as confidential and which the parties know, or ought to know, is confidential. Information that is already or becomes public knowledge other than by a breach of the contract is not regarded as confidential information.
Confidentiality provisions in a contract prevent the supplier from divulging any Commonwealth confidential information to a third party without the prior written consent of the Commonwealth. Contracts also usually contain a reciprocal provision that prevents the Commonwealth from divulging any of the supplier's confidential information without prior written consent. The provisions usually require the supplier and its subcontractors to provide a written non-disclosure agreement (sometime called a deed of confidentiality) at the Commonwealth's request. Sometimes there are exceptions to the obligation of confidentiality, for example when the information is otherwise in the public domain, is disclosed to legal advisers for the purpose of complying with obligations or exercising rights under the contract or when required for the Australian National Audit Office (ANAO), the Minister or the Parliament.
When managing a contract, it is vital that you are familiar with the specific provisions in your contract that relate to confidentiality and exceptions. These provisions can be complex and it is advisable to take legal advice if any issues arise.
You must ensure that any actions taken in relation to confidentiality are consistent with the contract provisions. You must strictly adhere to any form and content requirements contained in the contract for notices, permissions and undertakings in relation to confidentiality.