National Security Legislation Amendment Act (No. 1) 2014 (108 of 2014)

Schedule 6   Protection of information

Part 1   Main amendments

Australian Security Intelligence Organisation Act 1979

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.