AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION ACT 1979 - SECT 35P Unauthorised disclosure of information

AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION ACT 1979 - SECT 35P

Disclosures by entrusted persons

  (1)   A person commits an offence if:

  (a)   the person is, or has been, an entrusted person; and

  (b)   information came to the knowledge or into the possession of the person in the person's capacity as an entrusted person; and

  (c)   the person discloses the information; and

  (d)   the information relates to a special intelligence operation.

Penalty:   Imprisonment for 5 years.

Note:   Recklessness is the fault element for paragraphs   (1)(b) and (d)--see section   5.6 of the Criminal Code .

  (1A)   Strict liability applies to paragraph   (1)(a).

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

  (1B)   A person commits an offence if:

  (a)   the person is, or has been, an entrusted person; and

  (b)   information came to the knowledge or into the possession of the person in the person's capacity as an entrusted person; and

  (c)   the person discloses the information; and

  (d)   the information relates to a special intelligence operation; and

  (e)   either or both of the following subparagraphs apply:

  (i)   the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation;

  (ii)   the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

Penalty:   Imprisonment for 10 years.

Note:   Recklessness is the fault element for paragraphs   (1B)(b) and (d) and subparagraph   (1B)(e)(ii)--see section   5.6 of the Criminal Code .

  (1C)   Strict liability applies to paragraph   (1B)(a).

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

Other disclosures

  (2)   A person commits an offence if:

  (a)   the person discloses information; and

  (b)   the information relates to a special intelligence operation; and

  (c)   the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

Penalty:   Imprisonment for 5 years.

Note:   Recklessness is the fault element for paragraphs   (2)(b) and (c)--see section   5.6 of the Criminal Code .

  (2A)   A person commits an offence if:

  (a)   the person discloses information; and

  (b)   the information relates to a special intelligence operation; and

  (c)   either or both of the following subparagraphs apply:

  (i)   the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation;

  (ii)   the person knows that the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

Penalty:   Imprisonment for 10 years.

Note:   Recklessness is the fault element for paragraph   (2A)(b)--see section   5.6 of the Criminal Code .

Exceptions

  (3)   Subsections   (1) to (2A) do not apply if the disclosure was:

  (a)   in connection with the administration or execution of this Division; or

  (b)   for the purposes of any legal proceedings arising out of or otherwise related to this Division or of any report of any such proceedings; or

  (c)   in accordance with any requirement imposed by law; or

  (d)   in connection with the performance of functions or duties, or the exercise of powers, of the Organisation; or

  (e)   for the purpose of obtaining legal advice in relation to the special intelligence operation; or

  (f)   to an IGIS official for the purpose of exercising powers, or performing functions or duties, as an IGIS official; or

  (g)   by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, as an IGIS official.

Note:   A defendant bears an evidential burden in relation to the matters in subsection   (3) (see subsection   13.3(3) of the Criminal Code ).

  (3A)   Subsections   (2) and (2A) do not apply to a person disclosing information if:

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

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

  (c)   at the time of the disclosure, the person believes that the disclosure:

  (i)   will not endanger the health or safety of any person; and

  (ii)   will not prejudice the effective conduct of a special intelligence operation; and

  (d)   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 subsection   (3A)--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), (1B), (2) or (2A).

  (5)   Subsection   (4) does not, by implication, affect the interpretation of any other provision of this Act.