OFFICE OF NATIONAL INTELLIGENCE ACT 2018 - SECT 44 Offences--dealing with and making records
OFFICE OF NATIONAL INTELLIGENCE ACT 2018 - SECT 44
Offences--dealing with and making recordsUnauthorised dealing with records
(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) the person being, or having been, a staff member of ONI; or
(ii) the person having entered into any contract, agreement or arrangement with ONI; or
(iii) the person having been an employee or agent of a person who has entered into a contract, agreement or arrangement with ONI; and
(c) the record:
(i) was acquired or prepared by or on behalf of ONI in connection with its functions; or
(ii) relates to the performance by ONI 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 ONI; 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 a staff member having the authority of the Director - General to give such an approval.
Penalty: Imprisonment for 3 years.
Unauthorised recording of information or matter
(2) 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) the person being, or having been, a staff member of ONI; or
(ii) the person having entered into any contract, agreement or arrangement with ONI; or
(iii) the person having been an employee or agent of a person who has entered into a contract, agreement or arrangement with ONI; and
(c) the information or matter:
(i) was acquired or prepared by or on behalf of ONI in connection with its functions; or
(ii) relates to the performance by ONI 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 ONI; 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, information or matter lawfully available
(3) Subsection (1) does not apply to a record, and subsection (2) 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 (3): see subsection 13.3(3) of the Criminal Code .
Exception--dealing with or making record for IGIS officials
(4) Subsection (1) does not apply if the person deals with, and subsection (2) does not apply if the person makes, the record for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code .
Extended geographical jurisdiction
(5) Section 15.4 of the Criminal Code (extended geographical jurisdiction--category D) applies to an offence against this section.
(6) In a prosecution for an offence against subsection (1), the trier of fact may find the defendant not guilty of that offence but guilty of an offence against subsection (2) if:
(i) is not satisfied that the defendant is guilty of the offence against subsection (1); but
(ii) is satisfied beyond reasonable doubt that the defendant is guilty of the offence against subsection (2); and
(b) the defendant has been accorded procedural fairness in relation to that finding of guilt.
(7) In a prosecution for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence but guilty of an offence against subsection (1) if:
(i) is not satisfied that the defendant is guilty of the offence against subsection (2); but
(ii) is satisfied beyond reasonable doubt that the defendant is guilty of the offence against subsection (1); and
(b) the defendant has been accorded procedural fairness in
relation to that finding of guilt.