Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH  

Part 5.6 - Secrecy of information  

Division 122 - Secrecy of information  

SECTION 122.5   Defences  

Powers, functions and duties in a person ' s capacity as a public official etc. or under arrangement

(1)    
It is a defence to a prosecution for an offence by a person against this Division that:

(a)    the person was exercising a power, or performing a function or duty, in the person ' s capacity as a public official or a person who is otherwise engaged to perform work for a Commonwealth entity; or

(b)    the person communicated, removed, held or otherwise dealt with the information in accordance with an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information.

Note:

A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3) ).

Information that is already public

(2)    
It is a defence to a prosecution for an offence by a person against this Division that the relevant information 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 matters in this subsection (see subsection 13.3(3) ).

Information communicated etc. to integrity agency

(3)    
It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it:

(a)    

to any of the following:

(i) the Inspector-General of Intelligence and Security, or a person covered by subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986 ;

(ii) the Commonwealth Ombudsman, or another officer within the meaning of subsection 35(1) of the Ombudsman Act 1976 ;

(iia) the Australian Information Commissioner, a member of the staff of the Office of the Australian Information Commissioner, or a consultant engaged under the Australian Information Commissioner Act 2010 ;

(iii) the National Anti-Corruption Commissioner or another staff member of the NACC (within the meaning of the National Anti-Corruption Commission Act 2022 );

(iv) the Inspector of the National Anti-Corruption Commission or a person assisting the Inspector (within the meaning of the National Anti-Corruption Commission Act 2022 ); and

(b)    

for the purpose of the Inspector-General, the Ombudsman, the Australian Information Commissioner, the National Anti-Corruption Commissioner or the Inspector of the National Anti-Corruption Commission (as the case requires) exercising a power, or performing a function or duty.

Note:

A person mentioned in paragraph (3)(a) does not bear an evidential burden in relation to the matters in this subsection (see subsection (12) ).

Information communicated etc. in accordance with the Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982

(4)    
It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it, in accordance with:

(a)    the Public Interest Disclosure Act 2013 ; or

(b)    the Freedom of Information Act 1982 .

Note:

A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3) ).

Information communicated etc. for the purpose of reporting offences and maladministration

(4A)    
It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information for the primary purpose of reporting, to an appropriate agency of the Commonwealth, a State or a Territory:

(a)    a criminal offence, or alleged criminal offence, against a law of the Commonwealth; or

(b)    maladministration relating to the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth; or

(c)    maladministration relating to the performance of functions of the Australian Federal Police under:

(i) the Australian Federal Police Act 1979 ; or

(ii) the Proceeds of Crime Act 2002 .

Note:

A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3) ).

Information communicated etc. to a court or tribunal

(5)    
It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it, to a court or tribunal (whether or not as a result of a requirement).

Note:

A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) ).

Information communicated etc. for the purposes of obtaining or providing legal advice

(5A)    
It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information for the primary purpose of obtaining or providing, in good faith, legal advice in relation to:

(a)    an offence against this Part; or

(b)    the application of any right, privilege, immunity or defence (whether or not in this Part) in relation to such an offence;

whether that advice was obtained or provided before or after the person engaged in the conduct constituting the offence.

Note:

A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) ).

Information communicated etc. by persons engaged in business of reporting news etc.

(6)    
It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information in the person ' s capacity as a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media, and:

(a)    at that time, the person reasonably believed that engaging in that conduct was in the public interest (see subsection (7) ); or

(b)    the person:

(i) was, at that time, a member of the administrative staff of an entity that was engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media; and

(ii) acted under the direction of a journalist, editor or lawyer who was also a member of the staff of the entity, and who reasonably believed that engaging in that conduct was in the public interest (see subsection (7) ).

Note:

A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) ).

(7)    
Without limiting paragraph (6)(a) or (b) , a person may not reasonably believe that communicating, removing, holding or otherwise dealing with information is in the public interest if:

(a)    

engaging in that conduct would be an offence under section 92 of the Australian Security Intelligence Organisation Act 1979 (making public the identity of ASIO employees and ASIO affiliates) or section 92A of that Act (disclosing the identity of ASIO employees and ASIO affiliates); or

(b)    engaging in that conduct would be an offence under section 41 of the Intelligence Services Act 2001 (publication of identity of staff); or

(c)    engaging in that conduct would be an offence under section 22, 22A or 22B of the Witness Protection Act 1994 (offences relating to Commonwealth, Territory, State participants or information about the national witness protection program); or

(d)    that conduct was engaged in for the purpose of directly or indirectly assisting a foreign intelligence agency or a foreign military organisation.

Information that has been previously communicated

(8)    
It is a defence to a prosecution for an offence by a person against this Division if:

(a)    the person did not make or obtain the relevant information by reason of any of the following:

(i) his or her being, or having been, a Commonwealth officer;

(ii) his or her being otherwise engaged to perform work for a Commonwealth entity;

(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and

(b)    the information has already been communicated, or made available, to the public (the prior publication ); and

(c)    the person was not involved in the prior publication (whether directly or indirectly); and

(d)    at the time of the communication, removal, holding or dealing, the person believes that engaging in that conduct will not cause harm to Australia ' s interests or the security or defence of Australia; and

(e)    having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.

Note:

A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) ).

Information relating to a person etc.

(9)    
It is a defence to a prosecution for an offence by a person against this Division if:

(a)    the person did not make or obtain the relevant information by reason of any of the following:

(i) his or her being, or having been, a Commonwealth officer;

(ii) his or her being otherwise engaged to perform work for a Commonwealth entity;

(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and

(b)    at the time of the communication, removal, holding or dealing, the person believes that the making or obtaining of the information by the person was required or authorised by law; and

(c)    having regard to the circumstances of the making or obtaining of the information, the person has reasonable grounds for that belief; and

(d)    any of the following apply:

(i) the person communicates the information to the person to whom the information relates;

(ii) the person is the person to whom the information relates;

(iii) the communication, removal, holding or dealing is in accordance with the express or implied consent of the person to whom the information relates.

Note:

A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) ).

(10)    
To avoid doubt, a defence to an offence may constitute an authorisation for the purposes of paragraph (9)(b) .

Removing, holding or otherwise dealing with information for the purposes of communicating information

(11)    
For the purposes of subsection (3) , (4) , (5) or (5A) , it is not necessary to prove that information, that was removed, held or otherwise dealt with for the purposes of communicating it, was actually communicated.

Burden of proof for integrity agency officials

(12)    
Despite subsection 13.3(3) , in a prosecution for an offence against this Division, a person mentioned in subparagraph (3)(a)(i) , (ii) , (iia) or (iii) does not bear an evidential burden in relation to the matter in:

(a)    subsection (1) , (4) or (4A) ; or

(b)    

either of the following:

(i) subparagraph (3)(a)(i) , (ii) , (iia) or (iii) ;

(ii) paragraph (3)(b) , to the extent that that paragraph relates to the Inspector-General of Intelligence and Security, the Ombudsman, the Australian Information Commissioner, the National Anti-Corruption Commissioner or the Inspector of the National Anti-Corruption Commission.

Defences do not limit each other

(13)    
No defence in this section limits the operation of any other defence in this section.