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

Schedule 6 Protection of information

Part 1 Main amendments

Intelligence Services Act 2001

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

(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

(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

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

(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

(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 ).

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

(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

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 ).

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

(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

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 ).

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

(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

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 ).

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

(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

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 ).

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

(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

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 ).

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

(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

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 ).

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

(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

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 ).

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

(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

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 ).

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