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Part 1 — Secrecy of information
1 Subsection 3(1) (paragraph (b) of the definition of Commonwealth officer )
Omit “; and”, substitute “.”.
2 Subsection 3(1) (paragraphs (c) and (d) of the definition of Commonwealth officer )
Repeal the paragraphs.
3 Subsection 3(1) (definition of Queen’s dominions )
Repeal the definition.
4 Paragraph 4J(7)(a)
Repeal the paragraph.
5 Parts VI and VII
Repeal the Parts.
6 At the end of Chapter 5 of the Criminal Code
Add:
Part 5.6 — Secrecy of information
(1) In this Part:
cause harm to Australia’s interests means to:
(a) interfere with or prejudice the prevention, detection, investigation, prosecution or punishment of:
(i) a criminal offence against; or
(ii) a contravention of a provision, that is subject to a civil penalty, of:
a law of the Commonwealth; or
(b) interfere with or prejudice the performance of functions of the Australian Federal Police under:
(i) paragraph 8(1)(be) of the Australian Federal Police Act 1979 (protective and custodial functions); or
(ii) the Proceeds of Crime Act 2002 ; or
(c) harm or prejudice Australia’s international relations in relation to information that was communicated in confidence:
(i) by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation; and
(ii) to the Government of the Commonwealth, to an authority of the Commonwealth, or to a person receiving the communication on behalf of the Commonwealth or an authority of the Commonwealth; or
(d) harm or prejudice Australia’s international relations in any other way; or
(e) harm or prejudice relations between the Commonwealth and a State or Territory; or
(f) harm or prejudice the health or safety of the public or a section of the public.
Commonwealth officer means any of the following:
(a) an APS employee;
(b) an individual appointed or employed by the Commonwealth otherwise than under the Public Service Act 1999 ;
(c) a member of the Australian Defence Force;
(d) a member or special member of the Australian Federal Police;
(e) an officer or employee of a Commonwealth authority;
(f) an individual who is a contracted service provider for a Commonwealth contract;
(g) an individual who is an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes (whether direct or indirect) of the Commonwealth contract.
deal has the meaning given by subsection 90.1(1).
domestic intelligence agency means:
(a) the Australian Secret Intelligence Service; or
(b) the Australian Security Intelligence Organisation; or
(c) the Australian Geospatial-Intelligence Organisation; or
(d) the Defence Intelligence Organisation; or
(e) the Australian Signals Directorate; or
(f) the Office of National Assessments.
information has the meaning given by section 90.1.
inherently harmful information means information that is any of the following:
(a) security classified information;
(b) information the communication of which would, or could reasonably be expected to, damage the security or defence of Australia;
(c) information that was obtained by, or made by or on behalf of, a domestic intelligence agency or a foreign intelligence agency in connection with the agency’s functions;
(d) information that was provided by a person to the Commonwealth or an authority of the Commonwealth in order to comply with an obligation under a law or otherwise by compulsion of law;
(e) information relating to the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency.
international relations has the meaning given by section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004 .
proper place of custody has the meaning given by section 121.2.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014 .
security classified information means information that has a security classification (within the meaning of section 90.4).
security or defence of Australia includes the operations, capabilities or technologies of, or methods or sources used by, domestic intelligence agencies or foreign intelligence agencies.
(2) To avoid doubt, communicate includes publish and make available.
121.2 Definition of proper place of custody
(1) Proper place of custody has the meaning prescribed by the regulations.
(2) Despite subsection 14(2) of the Legislation Act 2003 , regulations made for the purposes of subsection (1) of this section may prescribe a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
(1) The Attorney-General may sign a certificate stating either of the following matters in relation to information or a thing identified in the certificate:
(a) that the information or thing has, or had at a specified time, a security classification;
(b) that the information or thing has, or had at a specified time, a specified level of security classification.
(2) For the purposes of proceedings for an offence against Division 122, a certificate signed by the Attorney-General under this section is prima facie evidence of the matters certified in it.
Division 122 — Secrecy of information
122.1 Inherently harmful information
Communication of inherently harmful information
(1) A person commits an offence if:
(a) the person communicates information; and
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note: For exceptions to the offences in this section, see section 122.5.
Penalty: Imprisonment for 15 years.
Other dealings with inherently harmful information
(2) A person commits an offence if:
(a) the person deals with information (other than by communicating it); and
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 5 years.
Information removed from, or held outside, proper place of custody
(3) A person commits an offence if:
(a) the person:
(i) removes information from a proper place of custody for the information; or
(ii) holds information outside a proper place of custody for the information; and
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 5 years.
Failure to comply with direction regarding information
(4) A person commits an offence if:
(a) the person is given a direction; and
(b) the direction is a lawful direction regarding the retention, use or disposal of information; and
(c) the person fails to comply with the direction; and
(d) the information is inherently harmful information; and
(e) the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 5 years.
(5) Strict liability applies to paragraphs (1)(b), (2)(b), (3)(b) and (4)(d) to the extent the information is security classified information.
122.2 Conduct causing harm to Australia’s interests
Communication causing harm to Australia’s interests
(1) A person commits an offence if:
(a) the person communicates information; and
(b) either:
(i) the communication causes harm to Australia’s interests; or
(ii) the communication will or is likely to cause harm to Australia’s interests; and
(c) the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note 1: For the definition of cause harm to Australia’s interests , see section 121.1.
Note 2: For exceptions to the offences in this section, see section 122.5.
Penalty: Imprisonment for 15 years.
Other conduct causing harm to Australia’s interests
(2) A person commits an offence if:
(a) the person deals with information (other than by communicating it); and
(b) either:
(i) the dealing causes harm to Australia’s interests; or
(ii) the dealing will or is likely to cause harm to Australia’s interests; and
(c) the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 5 years.
Information removed from, or held outside, proper place of custody
(3) A person commits an offence if:
(a) the person:
(i) removes information from a proper place of custody for the information; or
(ii) holds information outside a proper place of custody for the information; and
(b) either:
(i) the removal or holding causes harm to Australia’s interests; or
(ii) the removal or holding will or is likely to cause harm to Australia’s interests; and
(c) the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 5 years.
Failure to comply with direction regarding information
(4) A person commits an offence if:
(a) the person is given a direction; and
(b) the direction is a lawful direction regarding the retention, use or disposal of information; and
(c) the person fails to comply with the direction; and
(d) either:
(i) the failure to comply causes harm to Australia’s interests; or
(ii) the failure to comply will or is likely to cause harm to Australia’s interests; and
(e) the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 5 years.
(1) A person commits an offence against this section if:
(a) the person commits an offence against section 122.1 or 122.2 (the underlying offence ); and
(b) any of the following circumstances exist in relation to the commission of the underlying offence:
(i) the information in relation to which the underlying offence is committed (the relevant information ) has a security classification of secret or above;
(ii) if the commission of the underlying offence involves a record containing the relevant information—the record is marked with a code word, “for Australian eyes only” or as prescribed by the regulations for the purposes of this subparagraph;
(iii) the commission of the underlying offence involves 5 or more records each of which has a security classification;
(iv) the commission of the underlying offence involves the person altering a record to remove or conceal its security classification;
(v) at the time the person committed the underlying offence, the person held an Australian Government security clearance.
Penalty:
(a) if the penalty for the underlying offence is imprisonment for 15 years—imprisonment for 20 years; or
(b) if the penalty for the underlying offence is imprisonment for 5 years—imprisonment for 10 years.
(2) There is no fault element for the physical element in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.
(3) Strict liability applies to subparagraph (1)(b)(iii).
(4) To avoid doubt:
(a) a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence; and
(b) a person may be convicted of an offence against this section even if the person has not been convicted of the underlying offence.
(1) A person commits an offence if:
(a) the person communicates information; and
(b) the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(c) the person is under a duty not to disclose the information; and
(d) the duty arises under a law of the Commonwealth.
Penalty: Imprisonment for 2 years.
(2) Absolute liability applies in relation to paragraph (1)(d).
Powers, functions and duties in a person’s capacity as a Commonwealth officer etc. or under arrangement
(1) It is a defence to a prosecution for an offence by a person against this Division that:
(a) the person was exercising a power, or performing a function or duty, in the person’s capacity as a Commonwealth officer or a person who is otherwise engaged to perform work for a Commonwealth entity; or
(b) the person dealt with, removed or held the information in accordance with an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Information that is already public
(2) It is a defence to a prosecution for an offence by a person against this Division that the information in relation to which the offence is committed is information 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 matters in this subsection (see subsection 13.3(3)).
Information communicated to the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman or the Law Enforcement Integrity Commissioner
(3) It is a defence to a prosecution for an offence by a person against this Division relating to the communication of information that the person communicated the information:
(a) to any of the following:
(i) the Inspector-General of Intelligence and Security, or a person engaged or employed to assist the Inspector-General as described in subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986 ;
(ii) the Commonwealth Ombudsman, or another officer within the meaning of subsection 35(1) of the Ombudsman Act 1976 ;
(iii) the Law Enforcement Integrity Commissioner, a staff member of ACLEI, or a consultant to, or a person made available to, the Integrity Commissioner under the Law Enforcement Integrity Commissioner Act 2006 ; and
(b) for the purpose of the Inspector-General, the Ombudsman or the Law Enforcement Integrity Commissioner (as the case requires) exercising a power, or performing a function or duty.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Information communicated in accordance with the Public Interest Disclosure Act 2013
(4) It is a defence to a prosecution for an offence by a person against this Division relating to the communication of information that the person communicated the information in accordance with the Public Interest Disclosure Act 2013 .
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Information communicated to a court or tribunal
(5) It is a defence to a prosecution for an offence by a person against this Division relating to the communication of information that the person communicated the information to a court or tribunal (whether or not as a result of a requirement).
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Information dealt with or held for the purposes of fair and accurate reporting
(6) It is a defence to a prosecution for an offence by a person against this Division relating to the dealing with or holding of information that the person dealt with or held the information:
(a) in the public interest (see subsection (7)); and
(b) in the person’s capacity as a journalist engaged in fair and accurate reporting.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(7) Without limiting paragraph (6)(a), dealing with or holding information is not in the public interest if the dealing or holding includes the following:
(a) dealing with or holding information that would be an offence under section 92 of the Australian Security Intelligence Organisation Act 1979 (publication of identity of ASIO employee or ASIO affiliate);
(b) dealing with or holding information that would be an offence under section 41 of the Intelligence Services Act 2001 (publication of identity of staff);
(c) dealing with or holding information that would be an offence under section 22, 22A or 22B of the Witness Protection Act 1994 (offences relating to Commonwealth, Territory, State participants or information about the NWPP);
(d) dealing with or holding information that will or is likely to harm or prejudice the health or safety of the public or a section of the public.
Information that has been previously communicated
(8) It is a defence to a prosecution for an offence by a person against this Division relating to the communication of information if:
(a) the person did not make or obtain the information by reason of any of the following:
(i) his or her being, or having been, a Commonwealth officer;
(ii) his or her being otherwise engaged to perform work for a Commonwealth entity;
(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and
(b) the information has already been communicated, or made available, to the public (the prior publication ); and
(c) the person was not involved in the prior publication (whether directly or indirectly); and
(d) at the time of the communication, the person believes that the communication will not cause harm to Australia’s interests or the security or defence of Australia; and
(e) 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 this subsection (see subsection 13.3(3)).
Information relating to a person etc.
(9) It is a defence to a prosecution for an offence by a person against this Division relating to dealing with information if:
(a) the person did not make or obtain the information by reason of any of the following:
(i) his or her being, or having been, a Commonwealth officer;
(ii) his or her being otherwise engaged to perform work for a Commonwealth entity;
(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and
(b) at the time of the dealing, the person believes that the making or obtaining of the information by the person was required or authorised by law; and
(c) having regard to the circumstances of the making or obtaining of the information, the person has reasonable grounds for that belief; and
(d) any of the following apply:
(i) the person communicates the information to the person to whom the information relates;
(ii) the person is the person to whom the information relates;
(iii) the dealing is in accordance with the express or implied consent of the person to whom the information relates.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(10) To avoid doubt, a defence to an offence may constitute an authorisation for the purposes of paragraph (9)(b).
Enforceable provisions
(1) The provisions of Division 122 are enforceable under Part 7 of the Regulatory Powers Act.
Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
Authorised person and relevant court
(2) For the purposes of Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of Division 122 of this Act:
(a) the Minister is an authorised person; and
(b) each of the following is a relevant court:
(i) the Federal Court of Australia;
(ii) the Federal Circuit Court of Australia;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Extension to external Territories
(3) Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of Division 122 of this Act, extends to every external Territory.
123.2 Forfeiture of articles etc.
(1) A sketch, article, record or document which is made, obtained, recorded, retained, possessed or otherwise dealt with in contravention of this Part is forfeited to the Commonwealth.
(2) In subsection (1), sketch , article and record have the same respective meanings as in Part 5.2.
123.3 Extended geographical jurisdiction—category D
Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Part.
7 Application
The amendments made by this Part apply to conduct that occurs on or after the commencement of this item.
Part 2 — Consequential amendments
Agricultural and Veterinary Chemicals (Administration) Act 1992
8 Subsection 69F(3)
Omit “section 70 of the Crimes Act 1914 ”, substitute “Part 5.6 (secrecy of information) of the Criminal Code ”.
9 Subsection 30A(1) (note)
Omit “70 of the Crimes Act 1914 ”, substitute “122.4 of the Criminal Code ”.
Australian Citizenship Act 2007
10 Section 3 (paragraph (a) of the definition of national security offence )
Repeal the paragraph.
11 Section 3 (paragraph (cb) of the definition of national security offence )
After “(terrorism)”, insert “or Part 5.6 (secrecy of information)”.
Australian Crime Commission Act 2002
12 Schedule 1 (entry relating to the Australian Security Intelligence Organisation Act 1979 )
Omit “ Crimes Act 1914 , section 85B”.
Australian Federal Police Act 1979
13 Subsection 4(1) (subparagraph (a)(i) of the definition of protective service offence )
Omit “79,”.
14 Subsection 4(1) (after subparagraph (a)(iib) of the definition of protective service offence )
Insert:
(iic) Part 5.6 of the Criminal Code (secrecy); or
Chemical Weapons (Prohibition) Act 1994
15 Subsection 102(5) (definition of Commonwealth officer )
Omit “70 of the Crimes Act 1914 ”, substitute “121.1 of the Criminal Code ”.
Comprehensive Nuclear-Test-Ban Treaty Act 1998
16 Paragraph 74(1)(e)
Omit “70 of the Crimes Act 1914 ”, substitute “121.1 of the Criminal Code ”.
Defence Home Ownership Assistance Scheme Act 2008
17 Subsection 81(5)
Repeal the subsection.
Freedom of Information Act 1982
18 Paragraph 78(1)(a)
Repeal the paragraph.
Law Enforcement Integrity Commissioner Act 2006
19 Paragraph 105(3)(a)
Repeal the paragraph.
Liquid Fuel Emergency Act 1984
20 Subsection 29(3)
Repeal the subsection.
21 Subsection 503A(9) (definition of Commonwealth officer )
Omit “70 of the Crimes Act 1914 ”, substitute “121.1 of the Criminal Code ”.
National Greenhouse and Energy Reporting Act 2007
22 Subsection 23(1) (note)
Omit “70 of the Crimes Act 1914 ”, substitute “122.4 of the Criminal Code ”.
23 Subsection 57(2) (note)
Omit “70 of the Crimes Act 1914 ”, substitute “122.4 of the Criminal Code ”.
24 Subsection 203DF(8)
Repeal the subsection.
25 Subsection 405(2) (note 3)
Repeal the note, substitute:
Note 3: See Part 5.6 of the Criminal Code for offences relating to secrecy of information.
26 Paragraph 14(2)(a)
Repeal the paragraph.
Parliamentary Service Act 1999
27 Subsection 65AA(2) (note)
Omit “70 of the Crimes Act 1914 creates offences”, substitute “122.4 of the Criminal Code creates an offence”.
28 Subsection 65AB(2) (note)
Omit “70 of the Crimes Act 1914 creates offences”, substitute “122.4 of the Criminal Code creates an offence”.
29 Subsection 72A(2) (note)
Omit “70 of the Crimes Act 1914 creates offences”, substitute “122.4 of the Criminal Code creates an offence”.
30 Subsection 72B(2) (note)
Omit “70 of the Crimes Act 1914 creates offences”, substitute “122.4 of the Criminal Code creates an offence”.
Renewable Energy (Electricity) Act 2000
31 Subsection 156(4)
Repeal the subsection.
Textile, Clothing and Footwear Investment and Innovation Programs Act 1999
32 Subsection 37R(6)
Repeal the subsection.
33 Subsection 37ZZA(6)
Repeal the subsection.
34 Subsection 52(5)
Repeal the subsection.