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Part 4—Provisions relating to information

Part 4 Provisions relating to information

Division 1 Information gathering

37   Requirement to provide information, documents or things to ONI relating to international matters

             (1)  For the purpose of ONI performing its function under paragraph 7(1)(c), the Director-General may make a written request that a Commonwealth authority provide information, documents or things in its possession that relate to:

                     (a)  international matters of political, strategic or economic significance to Australia; or

                     (b)  domestic aspects relating to such international matters.

             (2)  Before making a written request of a Commonwealth authority under subsection (1), the Director-General must:

                     (a)  consult with the Commonwealth authority; and

                     (b)  consider any concerns raised by the Commonwealth authority, including concerns about:

                              (i)  a contract, arrangement or understanding that would prohibit or limit the Commonwealth authority’s ability to provide information, documents or things that would need to be provided in response to a request; or

                             (ii)  the need to provide personal information (within the meaning of the Privacy Act 1988 ) in response to a request.

             (3)  A Commonwealth authority must provide any information, documents or things to ONI in response to a written request by the Director-General under subsection (1), unless and to the extent that a law of the Commonwealth, or of a State or Territory prohibits the provision (however described) of the information, documents or things.

Note:          For limits on the use that ONI may make of such information, documents or things: see section 40.

38   Ability to provide information, documents or things to ONI relating to international or other matters

             (1)  For the purpose of ONI performing its function under paragraph 7(1)(c) or (d), a Commonwealth authority may provide to ONI information, documents or things that the head (however described) of the Commonwealth authority considers relates to matters of political, strategic or economic significance to Australia.

Note:          Even though a Commonwealth authority may voluntarily provide information, documents or things under this section, the Commonwealth authority may be required to provide the same information, documents or things in response to a request made under section 37.

             (2)  To avoid doubt, a Commonwealth authority may provide information, documents or things to ONI under this section even if doing so would not otherwise fall within the Commonwealth authority’s statutory functions.

39   Ability of agencies to provide information, documents or things to ONI relating to its functions

             (1)  For the purpose of ONI performing its functions, an intelligence agency or agency with an intelligence role or function may provide to ONI information, documents or things that relate, or may relate, to any of ONI’s functions.

Note:          Even though an intelligence agency or agency with an intelligence role or function may voluntarily provide information, documents or things under this section, if the agency is a Commonwealth authority, the agency may be required to provide the same information, documents or things in response to a request made under section 37.

             (2)  To avoid doubt, an intelligence agency or agency with an intelligence role or function may provide information, documents or things to ONI under this section even if doing so would not otherwise fall within the agency’s statutory functions.

40   Use of information, documents or things

             (1)  If information, documents or things are provided to ONI under section 37, the Director-General must ensure that the information, documents and things are only used for the purpose of ONI performing its function under paragraph 7(1)(c), unless the head (however described) of the relevant Commonwealth authority gives written authorisation for the subsequent use of information, documents or things in relation to:

                     (a)  the performance of another of ONI’s functions; or

                     (b)  the exercise of ONI’s powers; or

                     (c)  the performance of the Director-General’s functions; or

                     (d)  the exercise of the Director-General’s powers.

             (2)  To avoid doubt, ONI does not contravene subsection (1) in relation to information, documents and things if:

                     (a)  the information, a document or thing is mentioned or referred to in any way in an assessment or report prepared under paragraph 7(1)(c); and

                     (b)  anything is done in relation to an assessment or report prepared under paragraph 7(1)(c) that is otherwise allowed by this Act or the general rules.

41   Protection of information, documents or things

             (1)  If information, documents or things are provided to ONI under this Division by an intelligence agency or agency with an intelligence role or function, the Director-General must make arrangements with the head of the relevant agency for the protection of the information, documents or things while they remain in ONI’s possession.

             (2)  If such arrangements are not made, ONI must take all reasonable steps to ensure:

                     (a)  the appropriate storage, access, use or further disclosure of the information or documents, according to their sensitivity or classification; and

                     (b)  in relation to a thing:

                              (i)  the appropriate storage, access or use of the thing; and

                             (ii)  the appropriate further disclosure of information or documents generated from the thing;

                            according to the thing’s sensitivity or classification.

             (3)  Subsection (2) is subject to section 40.

Division 2 Secrecy

42   Offence—communicating certain information

Communication of information or matter

             (1)  A person commits an offence if:

                     (a)  the person communicates any information or matter that:

                              (i)  was acquired or prepared by or on behalf of ONI in connection with its functions; or

                             (ii)  relates or related to the performance by ONI of its functions; 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 another person who has entered into a contract, agreement or arrangement with ONI; and

                     (c)  the communication was not made:

                              (i)  to the Director-General or a staff member by the person in the course of the person’s duties as a staff member; or

                             (ii)  to the Director-General or a staff member by the person in accordance with a contract, agreement or arrangement; or

                            (iii)  by the person in the course of the person’s duties as a staff member, 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 10 years.

Exception—information or matter lawfully available

             (2)  Subsection (1) 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 (2): see subsection 13.3(3) of the Criminal Code .

Exception—communication to IGIS officials

             (3)  Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the 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 (3): 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).

43   Offence—subsequent communications of certain information

             (1)  A person commits an offence if:

                     (a)  the person has come to know or possess information or matter other than 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 another person who has entered into a contract, agreement or arrangement with ONI; and

                     (b)  the information or matter:

                              (i)  was acquired or prepared by or on behalf of ONI in connection with its functions; or

                             (ii)  relates or related to the performance by ONI of its functions; and

                     (c)  the person communicates the information or matter; and

                     (d)  the person:

                              (i)  intends that the communication cause harm to national security or endanger the health or safety of another person; or

                             (ii)  knows that the communication will, or is likely to, cause harm to national security or endanger the health or safety of another person.

Penalty:  Imprisonment for 5 years.

Exception—information or matter lawfully available

             (2)  Subsection (1) 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 (2): see subsection 13.3(3) of the Criminal Code .

Other exceptions

             (3)  Subsection (1) does not apply if the communication was:

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

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

                     (c)  to an IGIS official for the purpose of the 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 matters in subsection (3): 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).

44   Offences—dealing with and making records

Unauthorised 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.

Alternative verdicts

             (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:

                     (a)  the trier of fact:

                              (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:

                     (a)  the trier of fact:

                              (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.

45   Instituting prosecutions for offences against this Division

             (1)  A prosecution under this Division may be instituted only by or with the consent of:

                     (a)  the Attorney-General; or

                     (b)  a person acting under the Attorney-General’s direction.

             (2)  However:

                     (a)  a person charged with an offence against this Division may be arrested, or a warrant for the person’s arrest may be issued and executed; and

                     (b)  such a person may be remanded in custody or on bail;

even if the consent of the Attorney-General or a person acting under the Attorney-General’s direction has not been obtained, but no further proceedings are to be taken until that consent has been obtained.

             (3)  Nothing in subsection (1) or (2) prevents the discharging of the accused if proceedings are not continued within a reasonable time.

46   Offences against this Division—IGIS officials

             (1)  A person does not commit an offence against this Division if:

                     (a)  the person is an IGIS official; and

                     (b)  the relevant conduct is engaged in by the person for the purpose of exercising powers, or performing functions or duties, as an IGIS official.

             (2)  In a prosecution for an offence against this Division, the defendant does not bear an evidential burden in relation to the matter in subsection (1) of this section, despite subsection 13.3(3) of the Criminal Code .