National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Act 2024 (24 of 2024)
Schedule 2 Protecting identities and information
Part 4 Protecting the identity of ASIO employees and ASIO affiliates
Division 1 Main amendments
Australian Security Intelligence Organisation Act 1979
39 Section 92
Repeal the section, substitute:
92 Making public the identity of ASIO employees and ASIO affiliates
Offence
(1) A person commits an offence if:
(a) the person makes information public, or causes or permits information to be made public; and
(b) any of the following applies:
(i) the information identifies a person as being an ASIO employee, a former ASIO employee, an ASIO affiliate or a former ASIO affiliate;
(ii) the information could reasonably lead to establishing the identity of a person as being an ASIO employee, a former ASIO employee, an ASIO affiliate or a former ASIO affiliate;
(iii) the identity of a person as being an ASIO employee, a former ASIO employee, an ASIO affiliate or a former ASIO affiliate could reasonably be inferred from the information.
Penalty: Imprisonment for 10 years.
Exceptions
(2) Subsection (1) does not apply to a person making information public, or causing or permitting information to be made public, if the Minister or Director-General has consented in writing to the information being made public.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) does not apply to a person making information public, or causing or permitting information to be made public, if:
(a) the information relates to a person who is a former ASIO employee or former ASIO affiliate; and
(b) the former ASIO employee or former ASIO affiliate has:
(i) consented in writing to the information being made public; or
(ii) caused or authorised the fact that the person is a former ASIO employee or former ASIO affiliate to be made public; and
(c) the person making the information public, or causing or permitting the information to be made public, is not that former ASIO employee or former ASIO affiliate.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Extended geographical jurisdiction
(4) Section 15.4 of the Criminal Code (extended geographical jurisdiction - category D) applies to an offence against subsection (1) of this section.
(5) Subsection (4) does not, by implication, affect the interpretation of any other provision of this Act or another Act.
Attorney-General's involvement in prosecution of offence
(6) A prosecution for an offence against subsection (1) may only be instituted by, or with the consent of, the Attorney-General.
Note: For communication of information about an offence against this section to appropriate authorities, see subsection 18(3).
Minister or Director-General's consent
(7) Consent given under this section is not a legislative instrument.
92A Disclosing the identity of ASIO employees and ASIO affiliates
Offence
(1) A person (the defendant ) commits an offence if:
(a) either:
(i) the defendant discloses information to another person; or
(ii) the defendant engages in conduct that results in information being disclosed to another person; and
(b) any of the following applies:
(i) the information identifies a person as being an ASIO employee, a former ASIO employee, an ASIO affiliate or a former ASIO affiliate;
(ii) the information could reasonably lead to establishing the identity of a person as being an ASIO employee, a former ASIO employee, an ASIO affiliate or a former ASIO affiliate;
(iii) the identity of a person as being an ASIO employee, a former ASIO employee, an ASIO affiliate or a former ASIO affiliate could reasonably be inferred from the information; and
(c) any of the following applies:
(i) the defendant intends to endanger the health or safety of a person;
(ii) the defendant intends to prejudice the effective performance of the functions or duties, or the effective exercise of the powers, of the Organisation;
(iii) the defendant knows that the disclosure will endanger the health or safety of a person;
(iv) the defendant knows that the disclosure will prejudice the effective performance of the functions or duties, or the effective exercise of the powers, of the Organisation.
Penalty: Imprisonment for 10 years.
Extended geographical jurisdiction
(2) Section 15.4 of the Criminal Code (extended geographical jurisdiction - category D) applies to an offence against subsection (1) of this section.
(3) Subsection (2) does not, by implication, affect the interpretation of any other provision of this Act or another Act.
Attorney-General's involvement in prosecution of offences
(4) A prosecution for an offence against subsection (1) may only be instituted by, or with the consent of, the Attorney-General.
Note: For communication of information about an offence against this section to appropriate authorities, see subsection 18(3).