Commonwealth Consolidated Acts

AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION ACT 1979 - SECT 34ZS

Before the expiry of the warrant

             (1)  A person (the discloser ) commits an offence if:

                     (a)  a warrant has been issued under this Division; and

                     (b)  the discloser discloses information; and

                     (c)  either or both of the following apply:

                              (i)  the information indicates the fact that the warrant has been issued or a fact relating to the content of the warrant or to the questioning or detention of a person in connection with the warrant;

                             (ii)  the information is operational information; and

                     (d)  if subparagraph (c)(ii) applies but subparagraph (c)(i) does not--the discloser has the information as a direct or indirect result of:

                              (i)  the issue of the warrant; or

                             (ii)  the doing of anything authorised by the warrant, by a direction given under subsection 34K(1) in connection with the warrant or by another provision of this Division in connection with the warrant; and

                     (e)  the disclosure occurs before the end of the period specified in the warrant as the period for which the warrant is to be in force; and

                      (f)  the disclosure is not a permitted disclosure.

Penalty:  Imprisonment for 5 years.

In the 2 years after the expiry of the warrant

             (2)  A person (the discloser ) commits an offence if:

                     (a)  a warrant has been issued under this Division; and

                     (b)  the discloser discloses information; and

                     (c)  the information is operational information; and

                     (d)  the discloser has the information as a direct or indirect result of:

                              (i)  the issue of the warrant; or

                             (ii)  the doing of anything authorised by the warrant, by a direction given under subsection 34K(1) in connection with the warrant or by another provision of this Division in connection with the warrant; and

                     (e)  the disclosure occurs before the end of the 2 years starting at the end of the period specified in the warrant as the period during which the warrant is to be in force; and

                      (f)  the disclosure is not a permitted disclosure.

Penalty:  Imprisonment for 5 years.

Strict liability

             (3)  Strict liability applies to paragraphs (1)(c) and (2)(c) if the discloser is:

                     (a)  the person (the subject ) specified in the warrant; or

                     (b)  a lawyer who has at any time been:

                              (i)  present, as the subject's legal adviser, at the questioning of the subject under the warrant; or

                             (ii)  contacted for the purpose of the subject obtaining legal advice in connection with the warrant; or

                            (iii)  contacted for the purpose of the subject obtaining representation in legal proceedings seeking a remedy relating to the warrant or the treatment of the subject in connection with the warrant.

Otherwise, the fault element applying to paragraphs (1)(c) and (2)(c) is recklessness.

Note:          For strict liability , see section 6.1 of the Criminal Code . For recklessness , see section 5.4 of the Criminal Code .

Extended geographical jurisdiction--category D

             (4)  Section 15.4 of the Criminal Code (extended geographical jurisdiction--category D) applies to an offence against subsection (1) or (2).

Definitions

             (5)  In this section:

"operational information" means information indicating one or more of the following:

                     (a)  information that the Organisation has or had;

                     (b)  a source of information (other than the person specified in the warrant mentioned in subsection (1) or (2)) that the Organisation has or had;

                     (c)  an operational capability, method or plan of the Organisation.

"permitted disclosure" means any of the following:

                     (a)  a disclosure made by a person in the course of any of the following:

                              (i)  exercising a power, or performing a function or duty, under this Act;

                             (ii)  doing anything the person is authorised to do by a warrant issued under this Act;

                            (iii)  doing anything the person is required or permitted to do by a direction under subsection 34K(1);

                            (iv)  exercising a power (including a power to make a complaint or to give information), or performing a function or duty, under the Inspector‑General of Intelligence and Security Act 1986 , the Ombudsman Act 1976 or Part V of the Australian Federal Police Act 1979 ;

                             (v)  exercising a power (including a power to make a complaint), or performing a function or duty, under a law of a State or Territory appointing or establishing a complaints agency;

                     (b)  a disclosure that is:

                              (i)  made in the course of the questioning of a person under a warrant issued under this Division; and

                             (ii)  made by a person who is present at the questioning when making the disclosure;

                     (c)  a disclosure to a lawyer for the purpose of:

                              (i)  obtaining legal advice in connection with a warrant issued under this Division; or

                             (ii)  obtaining representation in legal proceedings seeking a remedy relating to such a warrant or the treatment of a person in connection with such a warrant;

                     (d)  a disclosure for the purpose of the initiation, conduct or conclusion (by judgment or settlement) of legal proceedings relating to such a remedy;

                     (e)  a disclosure that is permitted by a prescribed authority to be made;

                      (f)  a disclosure to one or more of the following persons, by the representative mentioned in subsection 34ZR(1), by the subject mentioned in that subsection or by a parent, guardian or sibling of the subject mentioned in that subsection, of information described in paragraph (1)(c) or (2)(c) of this section in relation to the warrant mentioned in that subsection:

                              (i)  a parent, guardian or sibling of the subject;

                             (ii)  the representative;

                            (iii)  the subject;

                            (iv)  a prescribed authority;

                             (v)  a person exercising authority under the warrant;

                            (vi)  the Inspector‑General of Intelligence and Security;

                           (vii)  the Commonwealth Ombudsman;

                           (viii)  a complaints agency;

                     (g)  a disclosure permitted by the Director‑General;

                     (h)  a disclosure permitted by the Minister;

                      (i)  a disclosure prescribed by the regulations.

             (6)  For the purposes of paragraph (e) of the definition of permitted disclosure in subsection (5), a prescribed authority may give written permission, not inconsistent with the regulations (if any), for:

                     (a)  a person contacted as described in subsection 34ZQ(1); or

                     (b)  the representative mentioned in subsection 34ZR(1);

to disclose specified information to a specified person. The permission may be given either unconditionally or subject to specified conditions.

Note 1:       The prescribed authority may revoke or amend the permission. See subsection 33(3) of the Acts Interpretation Act 1901 .

Note 2:       If permission is given subject to a condition and the condition is not met, the permission is not in force.

             (7)  For the purposes of paragraph (g) of the definition of permitted disclosure in subsection (5), the Director‑General may give written permission for a disclosure. The permission may be given either unconditionally or subject to specified conditions.

Note 1:       The Director‑General may revoke or amend the permission. See subsection 33(3) of the Acts Interpretation Act 1901 .

Note 2:       If permission is given subject to a condition and the condition is not met, the permission is not in force.

             (8)  For the purposes of paragraph (h) of the definition of permitted disclosure in subsection (5), the Minister may, after obtaining advice from the Director‑General, give written permission for a disclosure. The permission may be given either unconditionally or subject to specified conditions.

Note 1:       The Minister may, after obtaining advice from the Director‑General, revoke or amend the permission. See subsection 33(3) of the Acts Interpretation Act 1901 .

Note 2:       If permission is given subject to a condition and the condition is not met, the permission is not in force.

             (9)  In deciding whether to give permission to a person under subsection (6), (7) or (8), the prescribed authority, the Director‑General or the Minister must take into account:

                     (a)  the person's family and employment interests to the extent that the prescribed authority, the Director‑General or the Minister is aware of those interests; and

                     (b)  the public interest; and

                     (c)  the risk to security if the permission were given.

This subsection does not limit the matters that may be taken into account.

           (10)  Regulations made for the purposes of paragraph (i) of the definition of permitted disclosure in subsection (5) may prescribe a disclosure by reference to one or more of the following:

                     (a)  the person making the disclosure;

                     (b)  the person to whom the disclosure is made;

                     (c)  the circumstances in which the disclosure is made;

                     (d)  the purpose of the disclosure;

                     (e)  the nature of information disclosed;

                      (f)  an opinion of a specified person about the possible or likely effect of the disclosure.

This subsection does not limit the way in which such regulations may prescribe a disclosure.

Offences apply to original and previously disclosed information

           (11)  To avoid doubt, subsections (1) and (2) apply whether or not the discloser has the information that he or she discloses as a result of a disclosure by someone else.

Relationship with other laws prohibiting disclosure

           (12)  This section has effect in addition to, and does not limit, other laws of the Commonwealth that prohibit the disclosure of information.

Implied freedom of political communication

           (13)  This section does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.