Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Part 4—Offences

Part 4 Offences

Division 1 Introduction

44   Simplified outline of this Part

This Part contains offences and other related provisions.

Broadly, the offences relate to:

       (a)     failing to attend a hearing, give information or a statement, or produce documents or things; and

      (b)     refusing to swear an oath, make an affirmation or answer a question; and

       (c)     witness protections; and

      (d)     contempt of the Commissioner; and

       (e)     unauthorised publication, use or disclosure of information.

Division 2 Failure to attend hearing, give information or produce documents etc.

45   Failure to attend hearing, give information or produce documents etc.

Failure to attend hearing

             (1)  A person commits an offence if:

                     (a)  the person is served with a notice under section 30 to attend a hearing; and

                     (b)  the person fails to comply with the notice.

Penalty:  Imprisonment for 2 years.

Failure to give information, or produce a document or thing

             (2)  A person commits an offence if:

                     (a)  the person is given a notice under section 30 or 32 to give information or a statement, or produce a document or thing, specified in the notice; and

                     (b)  the person fails to comply with the notice.

Penalty:  Imprisonment for 2 years.

Reasonable excuse

             (3)  Subsections (1) and (2) do not apply if the person has a reasonable excuse.

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

Defence of relevance

             (4)  Subsection (2) does not apply if the information, statement, document or thing is not relevant to the matters into which the Commissioner was inquiring.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (4) (see subsection 13.3(3) of the Criminal Code ).

Subsections (1) and (2) not affected by State or Territory law or the general law

             (5)  Subsections (1) and (2) have effect despite anything in a law of a State or Territory, or the general law.

Note:          Penalties also do not apply under secrecy provisions: see section 58.

46   Refusal to swear an oath, make an affirmation or answer a question

                   A person commits an offence if:

                     (a)  the person is served with a notice under section 30 to attend a hearing; and

                     (b)  either:

                              (i)  the person refuses to be sworn or to make an affirmation at the hearing; or

                             (ii)  the person refuses to answer a question at the hearing that the Commissioner requires the person to answer.

Penalty:  Imprisonment for 2 years.

47   Failure to give written notice to the Commissioner

Operationally sensitive information

             (1)  A person commits an offence if:

                     (a)  the person is required to give a written notice to the Commissioner under section 33; and

                     (b)  the person holds or has held an Australian Government security clearance (within the meaning of the Criminal Code ) that allows, or had allowed, access to operationally sensitive information; and

                     (c)  the person fails to give the notice in accordance with section 33.

Penalty:  Imprisonment for 3 years.

Intelligence information

             (2)  A person commits an offence if:

                     (a)  the person is required to give a written notice to the Commissioner under section 34; and

                     (b)  the person holds or has held an Australian Government security clearance (within the meaning of the Criminal Code ) that allows, or had allowed, access to intelligence information; and

                     (c)  the person fails to give the notice in accordance with section 34.

Penalty:  Imprisonment for 3 years.

48   Legal professional privilege

             (1)  It is not a reasonable excuse for the purposes of subsection 45(3) for a person to fail to give information or a statement, or produce a document or thing, that the information, statement, document or thing is subject to legal professional privilege, unless:

                     (a)  a court has found the information, statement, document or thing (or the relevant part of it) to be subject to legal professional privilege; or

                     (b)  a claim that the information, statement, document or thing (or the relevant part of it) is subject to legal professional privilege has been made to the Commissioner:

                              (i)  within the time that the Commissioner, in requiring the information or statement to be given, or the document or thing to be produced, allowed for the giving of the information or statement, or the production of the document or thing;

                             (ii)  within such further time as the Commissioner allows for the giving of the information or statement, or the production of the document or thing.

             (2)  If such a claim is made, the Commissioner may decide whether to accept or reject the claim.

             (3)  The Commissioner may, by written notice served on a person, require the person to produce the information, statement, document or thing for inspection for the purpose of deciding whether to accept or reject the claim.

             (4)  If the information, statement, document or thing has been produced for inspection and the Commissioner decides to accept the claim, the Commissioner must:

                     (a)  return the information, statement, document or thing to the person; and

                     (b)  disregard, for the purposes of any report, recommendation or finding that the Commissioner makes:

                              (i)  if the claim is accepted in relation to the whole of the information, statement, document or thing—the whole of the information, statement, document or thing; or

                             (ii)  if the claim is accepted in relation to a part of the information, statement, document or thing—that part of the information, statement, document or thing.

             (5)  If the information, statement, document or thing has been produced for inspection and the Commissioner decides to reject the claim, the Commissioner may use the information, statement, document or thing for the purposes of performing the Commissioner’s functions.

49   Offences relating to claims for legal professional privilege

Offences

             (1)  A person commits an offence if:

                     (a)  the person has failed to give information or a statement, or produce a document or thing as required by the Commissioner under section 30 or 32; and

                     (b)  the Commissioner has decided under subsection 48(2) to reject a claim that the information or statement, document or thing (or the relevant part of the information, statement, document or thing) is subject to legal professional privilege; and

                     (c)  the person fails to give the information or statement, or produce the document or thing as the Commissioner requires, after that decision, under section 30 or 32.

Penalty:  Imprisonment for 2 years.

             (2)  A person commits an offence if:

                     (a)  the person is required under subsection 48(3) to give information or a statement, or produce a document or thing for inspection; and

                     (b)  the person fails to comply with the notice.

Penalty:  Imprisonment for 2 years.

Reasonable excuse

             (3)  Subsections (1) and (2) do not apply if the person has a reasonable excuse.

Legal professional privilege

             (4)  It is not a reasonable excuse for the purposes of subsection (3) for a person to fail to give information or a statement, or produce a document or thing, that the information, statement, document or thing is subject to legal professional privilege, unless a court has found the information, statement, document or thing to be subject to legal professional privilege.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (4) (see subsection 13.3(3) of the Criminal Code ).

Defence of relevance

             (5)  It is a defence to a prosecution for an offence against this section constituted by a failure to give information or a statement, or produce a document or thing, if the information, statement, document or thing is not relevant to the matters into which the Commission is inquiring.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (5) (see subsection 13.3(3) of the Criminal Code ).

50   Self-incrimination

             (1)  An individual is not excused from giving information, evidence or a statement, or producing a document or thing, under section 30 or 32 on the ground that giving the information, evidence or statement, or producing the document or thing, might tend to incriminate the individual in relation to an offence.

Note:          A body corporate is not entitled to claim the privilege against self-incrimination.

             (2)  Subsection (1) does not apply if:

                     (a)  giving the information, evidence or statement, or producing the document or thing, might tend to incriminate the individual in relation to an offence; and

                     (b)  the individual has been charged with that offence; and

                     (c)  the charge has not been finally dealt with by a court or otherwise disposed of.

             (3)  However:

                     (a)  the information, evidence or statement given or document or thing produced; and

                     (b)  the giving of the information, evidence or a statement, or the production of the document or thing;

are not admissible in evidence against the individual in any criminal proceedings, other than:

                     (c)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act; or

                     (d)  proceedings for an offence against Part III of the Crimes Act 1914 that relates to this Act; or

                     (e)  proceedings for an offence against this Act.

             (4)  If, at general law, an individual would otherwise be able to claim the privilege against self-exposure to a penalty (other than a penalty for an offence) in relation to giving information, evidence or a statement, or producing a document or thing under section 30 or 32, the individual is not excused from giving the information, evidence or statement or producing the document or thing under those provisions on that ground.

Note:          A body corporate is not entitled to claim the privilege against self-exposure to a penalty.

Division 3 Witness protections etc.

51   Dismissal etc. of witness

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

                     (a)  dismisses an employee from employment or a defence member from the Defence Force; or

                     (b)  prejudices an employee in the employee’s employment by the person or disciplines a defence member in their capacity as a defence member;

for or on account of the employee or a defence member having:

                     (c)  appeared as a witness before the Commissioner; or

                     (d)  given evidence before the Commissioner; or

                     (e)  given information or a statement, or produced a document or thing, in accordance with section 30 or 32.

Penalty:  10 penalty units or imprisonment for 1 year.

             (2)  Subsection (1) does not apply if the employee or defence member was dismissed, prejudiced or disciplined for some reason other than the reasons mentioned in subsection (1).

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

52   Contempt of Commissioner

             (1)  A person commits an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the conduct obstructs or hinders the Commissioner in the performance or exercise of the Commissioner’s functions or powers.

Penalty:  2 penalty units or imprisonment for 3 months.

             (2)  A person commits an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the conduct would, if the Commissioner were a court of record, constitute a contempt of that court.

Penalty:  2 penalty units or imprisonment for 3 months.

Division 4 Unauthorised publication, use or disclosure of information etc.

53   Non-publication direction

             (1)  The Commissioner may direct that any of the following material must not be published, produced or disclosed or must not be published, produced or disclosed except in the manner or to the persons that the Commissioner specifies:

                     (a)  evidence given before the Commissioner;

                     (b)  the contents of a document, or a description of a thing, produced or given to the Commissioner;

                     (c)  information that might enable a person who has given evidence before the Commissioner to be identified.

Note:          Publication in contravention of a direction under this subsection is an offence: see section 54.

             (2)  The Commissioner may, in writing, vary or revoke a direction under subsection (1).

             (3)  Without limiting subsection (1), the Commissioner may direct that the material must not be published, produced or disclosed to:

                     (a)  a court; or

                     (b)  a tribunal, authority or person having power to require the production of documents or the answering of questions.

54   Publication in contravention of non-publication direction

                   A person commits an offence if:

                     (a)  the person publishes information; and

                     (b)  the publication contravenes a direction under subsection 53(1).

Penalty:  Imprisonment for 3 years.

55   Unauthorised use or disclosure of protected information

                   A person commits an offence if:

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

                     (b)  the person uses or discloses information; and

                     (c)  the information is protected information; and

                     (d)  neither of the following apply:

                              (i)  the use or disclosure is for the purposes of performing or exercising the Commissioner’s functions or powers;

                             (ii)  the information is disclosed by the Commissioner in accordance with section 56 or 57.

Note:          See Part 5.6 of the Criminal Code for offences relating to secrecy of information.

Penalty:  Imprisonment for 2 years.

56   Authorisation to disclose information (other than intelligence information)

Authorisation to disclose

             (1)  The Commissioner may disclose information (including personal information) to an entity specified in subsection (2) if:

                     (a)  the information was given to the Commissioner in accordance with a notice under section 30 or 32, or in accordance with section 40 or 41; and

                     (b)  the Commissioner is satisfied that the information will assist the entity to perform any of its functions or exercise any of its powers; and

                     (c)  the information is not intelligence information.

Note:          The Commissioner’s power under this subsection is not delegable: see section 15.

             ( 2)  The entities are the following:

                     (a)  the Attorney-General of the Commonwealth, of a State or Territory;

                     (b)  the Australian Federal Police;

                     (c)  the police force of a State or Territory;

                     (d)  the Director of Public Prosecutions;

                     (e)  a Special Prosecutor appointed under the Special Prosecutors Act 1982 ;

                      (f)  a body with functions equivalent to a Royal Commission;

                     (g)  if the information relates, or may relate, to the contravention, or evidence of a contravention, of a law of the Commonwealth, a State or a Territory—an entity responsible for the administration or enforcement of the law;

                     (h)  the Australian Crime Commission;

                      (i)  the Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006 );

                      (j)  a Coroner or a Coroner’s court;

                     (k)  any other Commonwealth body;

                      (l)  any other State body or Territory body;

                    (m)  any other individual who holds any office or appointment under a law of the Commonwealth, a State or Territory.

Authorisation for agencies and bodies to use and disclose information

             (3)  An entity to which information is disclosed under subsection (1) may use and disclose the information for the purposes for which the information was disclosed under that subsection.

Contravention of a law

             (4)  A reference in paragraph (2)(g) to a contravention of a law is a reference to a contravention for which a person may be liable to:

                     (a)  a criminal penalty; or

                     (b)  a civil or administrative penalty.

57   Authorisation to disclose intelligence information

Authorisation to disclose

             (1)  The Commissioner may disclose intelligence information (including personal information) to an entity specified in subsection (2) if:

                     (a)  the information was given to the Commissioner in accordance with a notice under section 30 or 32, or in accordance with section 40 or 41; and

                     (b)  except in the case of a disclosure to the Inspector-General of Intelligence and Security—the information relates, or may relate, to the commission, or evidence of the commission, of an offence against a law of the Commonwealth, a State or a Territory; and

                     (c)  in any case—the Commissioner is satisfied that the information will assist the entity to perform any of its functions or exercise any of its powers.

Note:          The Commissioner’s power under this subsection is not delegable: see section 15.

             (2)  The entities are the following:

                     (a)  the Australian Federal Police;

                     (b)  the police force of a State or Territory;

                     (c)  the Australian Crime Commission;

                     (d)  the Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006 );

                     (e)  the Inspector-General of Intelligence and Security;

                      (f)  an agency or body, or the holder of an office, that is prescribed by the rules for the purposes of this paragraph.

Consultation requirement

             (3)  Before disclosing intelligence information under subsection (1) to an entity other than the Inspector-General of Intelligence and Security, the Commissioner must consult the following:

                     (a)  the person mentioned in subsection (4) for the entity;

                     (b)  the head of the Australian intelligence entity to which the information relates.

             (4)  For the purposes of paragraph (3)(a), the person for the entity is as follows:

                     (a)  for the Australian Federal Police—the Commissioner of Police;

                     (b)  for the police force of a State or Territory—the head (however described) of the police force of the State or Territory;

                     (c)  for the Australian Crime Commission—the Chief Executive Officer of the Australian Crime Commission;

                     (d)  for the Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006 )—the Integrity Commissioner;

                     (e)  for an agency or body, or the holder of an office, that is prescribed by the rules for the purposes of paragraph (2)(f)—the person holding, or performing the duties of, the principal office in respect of the body or agency that is prescribed by the rules for the purposes of this paragraph.

             (5)  For the purposes of paragraph (3)(a), the consultation must cover the protection of the intelligence information while it remains in the entity’s possession.

Matters to which Commissioner must have regard in disclosing information

             (6)  In disclosing intelligence information under subsection (1), the Commissioner:

                     (a)  must have regard to any matter set out in an arrangement entered into for the purposes of subsection 42(1) with the head of the Australian intelligence entity to which the information relates; and

                     (b)  may have regard to any other matter the Commissioner considers relevant.

58   No criminal or civil liability under secrecy provisions

Information provided in accordance with notices

             (1)  A person who is served with a notice under section 30 (summons) or 32 (Commissioner may require information etc.) does not commit an offence, and is not liable to any penalty, under a secrecy provision because the person:

                     (a)  answers a question at a hearing that the Commissioner requires the person to answer; or

                     (b)  gives information or a statement that the person is required to give in accordance with the notice; or

                     (c)  produces a document or thing that the person is required to produce in accordance with the notice.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3) of the Criminal Code .

Information disclosed under section 40 or 41

             (2)  A person who discloses information undersection 40 or 41 does not commit an offence, and is not liable to any penalty, under a secrecy provision because the person disclosed information in accordance with section 40 or 41.