18BUnauthorised recording of information or matter

#### 18B Unauthorised recording of information or matter (1) A person commits an offence if: (a) the person is, or has been, an entrusted person; and (b) information or matter has come to the knowledge or into the possession of the person in the person’s capacity as an entrusted person; and (c) the information or matter: (i) was acquired or prepared by or on behalf of the Organisation in connection with its functions; or (ii) relates to the performance by the Organisation of its functions; and (d) the person makes a record of the information or matter; and (e) the record is not made by the person: (i) as an ASIO employee in the course of the person’s duties as an ASIO employee; or (ii) as an ASIO affiliate in accordance with the contract, agreement or other arrangement under which the person is performing functions or services for the Organisation; or (iii) in accordance with a contract, agreement or arrangement the person has entered into with ASIO (other than as an ASIO affiliate); or (iv) acting within the limits of authority conferred on the person by the Director‑General; or (v) with the approval of the Director‑General, or of a person having the authority of the Director‑General to give such an approval. Penalty: Imprisonment for 3 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—IGIS officials (2A) Subsection (1) 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 (2A) (see subsection 13.3(3) of the Criminal Code). Alternative verdict (3) Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence) against subsection (1), the trier of fact: (a) is not satisfied that the defendant is guilty of the prosecuted offence; but (b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 18A(1) (the alternative offence). (4) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt. Definitions (5) In this section: > record has the same meaning as in section 18A.