Commonwealth Numbered Acts Commonwealth Numbered ActsAustralian Security Intelligence Organisation Act 1979
1 Subsection 18(2) (penalty)
Omit "2 years", substitute "10 years".
2 After subsection 18(2)
Insert:
Exception--information or matter lawfully available
(2A) Subsection (2) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code ).
Exception--communication to the Inspector-General of Intelligence and Security
(2B) Subsection (2) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2B) (see subsection 13.3(3) of the Criminal Code ).
3 Subsection 18(5)
Repeal the subsection.
4 After section 18
Insert:
18A Unauthorised dealing with records
Offence for unauthorised dealing with records
(1) A person commits an offence if:
(a) the person is, or has been, an entrusted person; and
(b) the person has obtained a record in the person's capacity as an entrusted person; and
(c) the record:
(i) was acquired or prepared by or on behalf of the Organisation in connection with its functions; or
(ii) relates to the performance by the Organisation of its functions; and
(d) the person engages in any of the following conduct (the relevant conduct ):
(i) copying the record;
(ii) transcribing the record;
(iii) retaining the record;
(iv) removing the record;
(v) dealing with the record in any other manner; and
(e) the relevant conduct was not engaged in by the person:
(i) as an ASIO employee in the course of the person's duties as an ASIO employee; or
(ii) as an ASIO affiliate in accordance with the contract, agreement or other arrangement under which the person is performing functions or services for the Organisation; or
(iii) in accordance with a contract, agreement or arrangement the person has entered into with ASIO (other than as an ASIO affiliate); or
(iv) acting within the limits of authority conferred on the person by the Director-General; or
(v) with the approval of the Director-General, or of a person having the authority of the Director-General to give such an approval.
Penalty: Imprisonment for 3 years.
Exception--record lawfully available
(2) Subsection (1) does not apply to a record that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).
Exception--Inspector-General of Intelligence and Security
(2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code ).
Alternative verdict
(3) Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 18B(1) (the alternative offence ).
(4) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Definitions
(5) In this section:
"entrusted person" means:
(a) an ASIO employee; or
(b) an ASIO affiliate; or
(c) a person who has entered into a contract, agreement or arrangement with ASIO (otherwise than as an ASIO affiliate).
"record" means a document, or any other object by which words, images, sounds or signals are recorded or stored or from which information can be obtained, and includes part of a record.
Note: For the definition of document , see section 2B of the Acts Interpretation Act 1901 .
"signals" includes electromagnetic emissions.
18B Unauthorised recording of information or matter
(1) A person commits an offence if:
(a) the person is, or has been, an entrusted person; and
(b) information or matter has come to the knowledge or into the possession of the person in the person's capacity as an entrusted person; and
(c) the information or matter:
(i) was acquired or prepared by or on behalf of the Organisation in connection with its functions; or
(ii) relates to the performance by the Organisation of its functions; and
(d) the person makes a record of the information or matter; and
(e) the record is not made by the person:
(i) as an ASIO employee in the course of the person's duties as an ASIO employee; or
(ii) as an ASIO affiliate in accordance with the contract, agreement or other arrangement under which the person is performing functions or services for the Organisation; or
(iii) in accordance with a contract, agreement or arrangement the person has entered into with ASIO (other than as an ASIO affiliate); or
(iv) acting within the limits of authority conferred on the person by the Director-General; or
(v) with the approval of the Director-General, or of a person having the authority of the Director-General to give such an approval.
Penalty: Imprisonment for 3 years.
Exception--information or matter lawfully available
(2) Subsection (1) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).
Exception--Inspector-General of Intelligence and Security
(2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code ).
Alternative verdict
(3) Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 18A(1) (the alternative offence ).
(4) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Definitions
(5) In this section:
"entrusted person" has the same meaning as in section 18A.
"record" has the same meaning as in section 18A.
18C Offences against section 18, 18A or 18B--general rules
Extended geographical jurisdiction
(1) Section 15.4 of the Criminal Code (extended geographical jurisdiction--category D) applies to an offence against section 18, 18A or 18B.
(2) Subsection (1) does not, by implication, affect the interpretation of any other provision of this Act.
Institution of prosecution
(3) A prosecution under section 18, 18A or 18B may be instituted only by, or with the consent of, the Attorney-General or a person acting under the Attorney-General's direction.
(4) However:
(a) a person charged with an offence against section 18, 18A or 18B may be arrested, or a warrant for his or her arrest may be issued and executed; and
(b) such a person may be remanded in custody or on bail;
even if the consent of the Attorney-General or a person acting under his or her direction has not been obtained, but no further proceedings are to be taken until that consent has been obtained.
(5) Nothing in subsection (3) or (4) prevents the discharging of the accused if proceedings are not continued within a reasonable time.
18D Offences against section 18, 18A or 18B--IGIS officials
(1) A person does not commit an offence against subsection 18(2), 18A(1) or 18B(1) if:
(a) the person is an IGIS official; and
(b) the relevant conduct is engaged in by the person for the purposes of exercising powers, or performing functions or duties, as an IGIS official.
(2) In a prosecution for an offence against subsection 18(2), 18A(1) or 18B(1), the defendant does not bear an evidential burden in relation to the matter in subsection (1) of this section, despite subsection 13.3(3) of the Criminal Code .
5 Section 22 (definition of signals )
Omit "light emissions and".
5A Subsections 92(1) and (1A) (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 10 years.
Intelligence Services Act 2001
6 Section 3
Insert:
"IGIS official" (short for Inspector-General of Intelligence and Security official) means:
(a) the Inspector-General of Intelligence and Security; or
(b) a member of the staff referred to in subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986 .
"record" means a document, or any other object by which words, images, sounds or signals are recorded or stored or from which information can be obtained, and includes part of a record.
Note: For the definition of document , see section 2B of the Acts Interpretation Act 1901 .
7 Section 3
Insert:
"signals" includes electromagnetic emissions.
8 Before section 39
Insert:
9 Paragraph 39(1)(a)
Before "prepared by", insert "acquired or".
10 Subsection 39(1) (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 10 years.
11 Subsection 39(2)
Repeal the subsection, substitute:
Exception--information or matter lawfully available
(2) Subsection (1) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--communication to the Inspector-General of Intelligence and Security
(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code ).
12 Paragraph 39A(1)(a)
Before "prepared by", insert "acquired or".
13 Subsection 39A(1) (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 10 years.
14 Subsection 39A(2)
Repeal the subsection, substitute:
Exception--information or matter lawfully available
(2) Subsection (1) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--communication to the Inspector-General of Intelligence and Security
(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code .
15 Paragraph 40(1)(a)
Before "prepared by", insert "acquired or".
16 Subsection 40(1) (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 10 years.
17 Subsection 40(2)
Repeal the subsection, substitute:
Exception--information or matter lawfully available
(2) Subsection (1) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--communication to the Inspector-General of Intelligence and Security
(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code .
18 After section 40
Insert:
40A Communication of certain information--ONA
(1) A person commits an offence if:
(a) the person communicates any information or matter that was acquired or prepared by or on behalf of ONA in connection with its functions or relates to the performance by ONA of its functions; and
(b) the information or matter has come to the knowledge or into the possession of the person by reason of:
(i) his or her being, or having been, a staff member of ONA; or
(ii) his or her having entered into any contract, agreement or arrangement with ONA; or
(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with ONA; and
(c) the communication was not made:
(i) to the Director-General of ONA or a staff member by the person in the course of the person's duties as a staff member; or
(ii) to the Director-General of ONA or a staff member by the person in accordance with a contract, agreement or arrangement; or
(iii) by the person in the course of the person's duties as a staff member, within the limits of authority conferred on the person by the Director-General of ONA; or
(iv) with the approval of the Director-General of ONA or of a staff member having the authority of the Director-General of ONA to give such an approval.
Penalty: Imprisonment for 10 years.
Exception--information or matter lawfully available
(2) Subsection (1) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--communication to the Inspector-General of Intelligence and Security
(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code ).
40B Communication of certain information--DIO
(1) A person commits an offence if:
(a) the person communicates any information or matter that was acquired or prepared by or on behalf of DIO in connection with its functions or relates to the performance by DIO of its functions; and
(b) the information or matter has come to the knowledge or into the possession of the person by reason of:
(i) his or her being, or having been, a staff member of DIO; or
(ii) his or her having entered into any contract, agreement or arrangement with DIO; or
(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with DIO; and
(c) the communication was not made:
(i) to the Director of DIO or a staff member by the person in the course of the person's duties as a staff member; or
(ii) to the Director of DIO or a staff member by the person in accordance with a contract, agreement or arrangement; or
(iii) by the person in the course of the person's duties as a staff member, within the limits of authority conferred on the person by the Director of DIO; or
(iv) with the approval of the Director of DIO or of a staff member having the authority of the Director of DIO to give such an approval.
Penalty: Imprisonment for 10 years.
Exception--information or matter lawfully available
(2) Subsection (1) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--communication to the Inspector-General of Intelligence and Security
(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code .
40C Unauthorised dealing with records--ASIS
(1) A person commits an offence if:
(a) the person engages in any of the following conduct (the relevant conduct ):
(i) copying a record;
(ii) transcribing a record;
(iii) retaining a record;
(iv) removing a record;
(v) dealing with a record in any other manner; and
(b) the record was obtained by the person by reason of:
(i) his or her being, or having been, a staff member or agent of ASIS; or
(ii) his or her having entered into any contract, agreement or arrangement with ASIS; or
(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with ASIS; and
(c) the record:
(i) was acquired or prepared by or on behalf of ASIS in connection with its functions; or
(ii) relates to the performance by ASIS of its functions; and
(d) the relevant conduct was not engaged in:
(i) in the course of the person's duties as a staff member or agent; or
(ii) in accordance with a contract, agreement or arrangement with ASIS; or
(iii) by the person acting within the limits of authority conferred on the person by the Director-General; or
(iv) with the approval of the Director-General or of a staff member having the authority of the Director-General to give such an approval.
Penalty: Imprisonment for 3 years.
Exception--record lawfully available
(2) Subsection (1) does not apply to a record that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--Inspector-General of Intelligence and Security
(2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code .
Alternative verdict
(3) Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40D(1) (the alternative offence ).
(4) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
40D Unauthorised recording of information or matter--ASIS
(1) A person commits an offence if:
(a) the person makes a record of any information or matter; and
(b) the information or matter has come to the knowledge or into the possession of the person by reason of:
(i) his or her being, or having been, a staff member or agent of ASIS; or
(ii) his or her having entered into any contract, agreement or arrangement with ASIS; or
(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with ASIS; and
(c) the information or matter:
(i) was acquired or prepared by or on behalf of ASIS in connection with its functions; or
(ii) relates to the performance by ASIS of its functions; and
(d) the record was not made:
(i) in the course of the person's duties as a staff member or agent; or
(ii) in accordance with a contract, agreement or arrangement with ASIS; or
(iii) by the person acting within the limits of authority conferred on the person by the Director-General; or
(iv) with the approval of the Director-General or of a staff member having the authority of the Director-General to give such an approval.
Penalty: Imprisonment for 3 years.
Exception--information or matter lawfully available
(2) Subsection (1) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--communication to the Inspector-General of Intelligence and Security
(2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code .
Alternative verdict
(3) Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40C(1) (the alternative offence ).
(4) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
40E Unauthorised dealing with records--AGO
(1) A person commits an offence if:
(a) the person engages in any of the following conduct (the relevant conduct ):
(i) copying a record;
(ii) transcribing a record;
(iii) retaining a record;
(iv) removing a record;
(v) dealing with a record in any other manner; and
(b) the record was obtained by the person by reason of:
(i) his or her being, or having been, a staff member of AGO; or
(ii) his or her having entered into any contract, agreement or arrangement with AGO; or
(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with AGO; and
(c) the record:
(i) was acquired or prepared by or on behalf of AGO in connection with its functions; or
(ii) relates to the performance by AGO of its functions; and
(d) the relevant conduct was not engaged in:
(i) in the course of the person's duties as a staff member; or
(ii) by the person in accordance with a contract, agreement or arrangement with AGO; or
(iii) by the person acting within the limits of authority conferred on the person by the Director of AGO; or
(iv) with the approval of the Director of AGO or of a staff member having the authority of the Director of AGO to give such an approval.
Penalty: Imprisonment for 3 years.
Exception--record lawfully available
(2) Subsection (1) does not apply to a record that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--Inspector-General of Intelligence and Security
(2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code .
Alternative verdict
(3) Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40F(1) (the alternative offence ).
(4) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
40F Unauthorised recording of information or matter--AGO
(1) A person commits an offence if:
(a) the person makes a record of any information or matter; and
(b) the information or matter has come to the knowledge or into the possession of the person by reason of:
(i) his or her being, or having been, a staff member of AGO; or
(ii) his or her having entered into any contract, agreement or arrangement with AGO; or
(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with AGO; and
(c) the information or matter:
(i) was acquired or prepared by or on behalf of AGO in connection with its functions; or
(ii) relates to the performance by AGO of its functions; and
(d) the record was not made:
(i) in the course of the person's duties as a staff member; or
(ii) in accordance with a contract, agreement or arrangement with AGO; or
(iii) by the person acting within the limits of authority conferred on the person by the Director of AGO; or
(iv) with the approval of the Director of AGO or of a staff member having the authority of the Director of AGO to give such an approval.
Penalty: Imprisonment for 3 years.
Exception--information or matter lawfully available
(2) Subsection (1) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--communication to the Inspector-General of Intelligence and Security
(2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code .
Alternative verdict
(3) Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40E(1) (the alternative offence ).
(4) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
40G Unauthorised dealing with records--ASD
(1) A person commits an offence if:
(a) the person engages in any of the following conduct (the relevant conduct ):
(i) copying a record;
(ii) transcribing a record;
(iii) retaining a record;
(iv) removing a record;
(v) dealing with a record in any other manner; and
(b) the record was obtained by the person by reason of:
(i) his or her being, or having been, a staff member of ASD; or
(ii) his or her having entered into any contract, agreement or arrangement with ASD; or
(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with ASD; and
(c) the record:
(i) was acquired or prepared by or on behalf of ASD in connection with its functions; or
(ii) relates to the performance by ASD of its functions; and
(d) the relevant conduct was not engaged in:
(i) in the course of the person's duties as a staff member; or
(ii) in accordance with a contract, agreement or arrangement with ASD; or
(iii) by the person acting within the limits of authority conferred on the person by the Director of ASD; or
(iv) with the approval of the Director of ASD or of a staff member having the authority of the Director of ASD to give such an approval.
Penalty: Imprisonment for 3 years.
Exception--record lawfully available
(2) Subsection (1) does not apply to a record that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--Inspector-General of Intelligence and Security
(2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code .
Alternative verdict
(3) Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40H(1) (the alternative offence ).
(4) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
40H Unauthorised recording of information or matter--ASD
(1) A person commits an offence if:
(a) the person makes a record of any information or matter; and
(b) the information or matter has come to the knowledge or into the possession of the person by reason of:
(i) his or her being, or having been, a staff member of ASD; or
(ii) his or her having entered into any contract, agreement or arrangement with ASD; or
(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with ASD; and
(c) the information or matter:
(i) was acquired or prepared by or on behalf of ASD in connection with its functions; or
(ii) relates to the performance by ASD of its functions; and
(d) the record was not made:
(i) in the course of the person's duties as a staff member; or
(ii) in accordance with a contract, agreement or arrangement with ASD; or
(iii) by the person acting within the limits of authority conferred on the person by the Director of ASD; or
(iv) with the approval of the Director of ASD or of a staff member having the authority of the Director of ASD to give such an approval.
Penalty: Imprisonment for 3 years.
Exception--information or matter lawfully available
(2) Subsection (1) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--communication to the Inspector-General of Intelligence and Security
(2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code .
Alternative verdict
(3) Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40G(1) (the alternative offence ).
(4) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
40J Unauthorised dealing with records--ONA
(1) A person commits an offence if:
(a) the person engages in any of the following conduct (the relevant conduct ):
(i) copying a record;
(ii) transcribing a record;
(iii) retaining a record;
(iv) removing a record;
(v) dealing with a record in any other manner; and
(b) the record was obtained by the person by reason of:
(i) his or her being, or having been, a staff member of ONA; or
(ii) his or her having entered into any contract, agreement or arrangement with ONA; or
(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with ONA; and
(c) the record:
(i) was acquired or prepared by or on behalf of ONA in connection with its functions; or
(ii) relates to the performance by ONA of its functions; and
(d) the relevant conduct was not engaged in:
(i) in the course of the person's duties as a staff member; or
(ii) in accordance with a contract, agreement or arrangement with ONA; or
(iii) by the person acting within the limits of authority conferred on the person by the Director-General of ONA; or
(iv) with the approval of the Director-General of ONA or of a staff member having the authority of the Director-General of ONA to give such an approval.
Penalty: Imprisonment for 3 years.
Exception--record lawfully available
(2) Subsection (1) does not apply to a record that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--Inspector-General of Intelligence and Security
(2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code .
Alternative verdict
(3) Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40K(1) (the alternative offence ).
(4) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
40K Unauthorised recording of information or matter--ONA
(1) A person commits an offence if:
(a) the person makes a record of any information or matter; and
(b) the information or matter has come to the knowledge or into the possession of the person by reason of:
(i) his or her being, or having been, a staff member of ONA; or
(ii) his or her having entered into any contract, agreement or arrangement with ONA; or
(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with ONA; and
(c) the information or matter:
(i) was acquired or prepared by or on behalf of ONA in connection with its functions; or
(ii) relates to the performance by ONA of its functions; and
(d) the record was not made:
(i) in the course of the person's duties as a staff member; or
(ii) in accordance with a contract, agreement or arrangement with ONA; or
(iii) by the person acting within the limits of authority conferred on the person by the Director-General of ONA; or
(iv) with the approval of the Director-General of ONA or of a staff member having the authority of the Director-General of ONA to give such an approval.
Penalty: Imprisonment for 3 years.
Exception--information or matter lawfully available
(2) Subsection (1) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--communication to the Inspector-General of Intelligence and Security
(2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code .
Alternative verdict
(3) Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40J(1) (the alternative offence ).
(4) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
40L Unauthorised dealing with records--DIO
(1) A person commits an offence if:
(a) the person engages in any of the following conduct (the relevant conduct ):
(i) copying a record;
(ii) transcribing a record;
(iii) retaining a record;
(iv) removing a record;
(v) dealing with a record in any other manner; and
(b) the record was obtained by the person by reason of:
(i) his or her being, or having been, a staff member of DIO; or
(ii) his or her having entered into any contract, agreement or arrangement with DIO; or
(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with DIO; and
(c) the record:
(i) was acquired or prepared by or on behalf of DIO in connection with its functions; or
(ii) relates to the performance by DIO of its functions; and
(d) the relevant conduct was not engaged in:
(i) in the course of the person's duties as a staff member; or
(ii) in accordance with a contract, agreement or arrangement with DIO; or
(iii) by the person acting within the limits of authority conferred on the person by the Director of DIO; or
(iv) with the approval of the Director of DIO or of a staff member having the authority of the Director of DIO to give such an approval.
Penalty: Imprisonment for 3 years.
Exception--record lawfully available
(2) Subsection (1) does not apply to a record that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--Inspector-General of Intelligence and Security
(2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code .
Alternative verdict
(3) Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40M(1) (the alternative offence ).
(4) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
40M Unauthorised recording of information or matter--DIO
(1) A person commits an offence if:
(a) the person makes a record of any information or matter; and
(b) the information or matter has come to the knowledge or into the possession of the person by reason of:
(i) his or her being, or having been, a staff member of DIO; or
(ii) his or her having entered into any contract, agreement or arrangement with DIO; or
(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with DIO; and
(c) the information or matter:
(i) was acquired or prepared by or on behalf of DIO in connection with its functions; or
(ii) relates to the performance by DIO of its functions; and
(d) the record was not made:
(i) in the course of the person's duties as a staff member; or
(ii) in accordance with a contract, agreement or arrangement with DIO; or
(iii) by the person acting within the limits of authority conferred on the person by the Director of DIO; or
(iv) with the approval of the Director of DIO or of a staff member having the authority of the Director of DIO to give such an approval.
Penalty: Imprisonment for 3 years.
Exception--information or matter lawfully available
(2) Subsection (1) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
Exception--communication to the Inspector-General of Intelligence and Security
(2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code .
Alternative verdict
(3) Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the prosecuted offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40L(1) (the alternative offence ).
(4) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
19 Subsection 41(1)
Omit "(1)".
19A Subsection 41(1) (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 10 years.
20 Subsection 41(2)
Repeal the subsection.
21 After section 41
Insert:
41A Offences against this Division--general rules
Extended geographical jurisdiction
(1) Section 15.4 of the Criminal Code (extended geographical jurisdiction--category D) applies to an offence against this Division.
(2) Subsection (1) does not, by implication, affect the interpretation of any other provision of this Act.
Institution of prosecution
(3) A prosecution under this Division may be instituted only by, or with the consent of, the Attorney-General or a person acting under the Attorney-General's direction.
(4) However:
(a) a person charged with an offence against this Division may be arrested, or a warrant for his or her arrest may be issued and executed; and
(b) such a person may be remanded in custody or on bail;
even if the consent of the Attorney-General or a person acting under his or her direction has not been obtained, but no further proceedings are to be taken until that consent has been obtained.
(5) Nothing in subsection (3) or (4) prevents the discharging of the accused if proceedings are not continued within a reasonable time.
41B Offences against this Division--IGIS officials
(1) A person does not commit an offence against an information offence provision if:
(a) the person is an IGIS official; and
(b) the relevant conduct is engaged in by the person for the purpose of exercising powers, or performing functions or duties, as an IGIS official.
(2) In a prosecution for an offence against an information offence provision, the defendant does not bear an evidential burden in relation to the matter in subsection (1), despite subsection 13.3(3) of the Criminal Code .
(3) In this section:
"information offence provision" means subsection 39(1), 39A(1), 40(1), 40A(1), 40B(1), 40C(1), 40D(1), 40E(1), 40F(1), 40G(1), 40H(1), 40J(1), 40K(1), 40L(1) or 40M(1).
22 Before section 42
Insert:
23 Application of amendments
The amendments made by this Part apply in relation to conduct engaged in by a person in relation to records, information or matter after the commencement of this Part, whether the records were obtained, or the information or matter came to the knowledge or into the possession of the person, before or after that commencement.
Part 2 -- Consequential amendments
Australian Crime Commission Act 2002
24 Schedule 1
After "sections 18," insert "18A, 18B,".
25 Subsection 15LC(4) (note 2)
Omit "section 39 or 41", substitute "under Division 1 of Part 6".
26 Subsection 80P(7) (paragraph (a) of the definition of designated secrecy provision )
After "sections 18", insert ", 18A, 18B".
27 Subsection 80P(7) (paragraph (c) of the definition of designated secrecy provision )
Repeal the paragraph, substitute:
(c) sections 39, 39A, 40, 40A to 40M and 41 of the Intelligence Services Act 2001 ;
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