34GFSecrecy relating to warrants and questioning

#### 34GF Secrecy relating to warrants and questioning Before warrant ceases to be in force (1) A person (the discloser) commits an offence if: (a) a questioning warrant is issued; and (b) the discloser discloses information; and (c) either or both of the following apply: (i) the information indicates the fact that the warrant has been issued, or a fact relating to the content of the warrant or to the questioning or apprehension of a person in connection with the warrant; (ii) the information is operational information; and (d) if subparagraph (c)(ii) applies but subparagraph (c)(i) does not—the discloser has the information as a direct or indirect result of: (i) the issue of the warrant; or (ii) the doing of anything authorised by the warrant, by a direction given by a prescribed authority in connection with the warrant or by another provision of this Division in connection with the warrant; and (e) the disclosure occurs before the end of the period specified in the warrant as the period for which the warrant is to be in force; and (f) the disclosure is not a permitted disclosure. Penalty: Imprisonment for 5 years. In the 2 years after warrant ceases to be in force (2) A person (the discloser) commits an offence if: (a) a questioning warrant is issued; and (b) the discloser discloses information; and (c) the information is operational information; and (d) the discloser has the information as a direct or indirect result of: (i) the issue of the warrant; or (ii) the doing of anything authorised by the warrant, by a direction given by a prescribed authority in connection with the warrant or by another provision of this Division in connection with the warrant; and (e) the disclosure occurs before the end of the 2 years starting at the end of the period specified in the warrant as the period during which the warrant is to be in force; and (f) the disclosure is not a permitted disclosure. Penalty: Imprisonment for 5 years. Strict liability (3) Strict liability applies to paragraphs (1)(c) and (2)(c) if the discloser is: (a) the subject of the warrant; or (b) a lawyer who has at any time been: (i) present, as the lawyer for the subject of the warrant, during the questioning of the subject under the warrant; or (ii) contacted for the purpose of the subject obtaining legal advice in connection with the warrant; or (iii) contacted for the purpose of the subject obtaining representation in legal proceedings seeking a remedy relating to the warrant or the treatment of the subject in connection with the warrant. Otherwise, the fault element applying to paragraphs (1)(c) and (2)(c) is recklessness. > Note: For strict liability, see section 6.1 of the Criminal Code. For recklessness, see section 5.4 of the Criminal Code. Immunity from liability (3A) Subsections (1) and (2) do not apply to a person who discloses information if, as a result of the operation of a law of the Commonwealth, the person is not subject to any civil or criminal liability for the conduct. > Note 1: The Public Interest Disclosure Act 2013 provides that an individual is not subject to any civil or criminal liability for making a public interest disclosure. > Note 2: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code). Extended geographical jurisdiction—category D (4) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1) or (2) of this section. Definitions (5) In this section: > operational information means information indicating one or more of the following: (a) information that the Organisation has or had; (b) a source of information (other than the subject of the warrant mentioned in subsection (1) or (2)) that the Organisation has or had; (c) an operational capability, method or plan of the Organisation. > permitted disclosure means any of the following: (a) a disclosure made by a person in the course of any of the following: (i) exercising a power, or performing a function or duty, under this Act; (ii) doing anything the person is authorised to do by a warrant issued under this Act; (iii) doing anything the person is required or permitted to do by a direction given by a prescribed authority; (iv) exercising a power (including a power to make a complaint or to give information), or performing a function or duty, under Part V of the Australian Federal Police Act 1979, the Ombudsman Act 1976 or a law of a State or Territory appointing or establishing a complaints agency; (aa) a disclosure made to or by an IGIS official for the purposes of the IGIS official exercising a power, or performing a function or duty, as an IGIS official; (b) a disclosure that is: (i) made in the course of the questioning of the subject of a questioning warrant under the warrant; and (ii) made by a person who is present during the questioning when making the disclosure; (c) a disclosure to a lawyer for the purpose of: (i) obtaining legal advice in connection with a questioning warrant; or (ii) obtaining representation in legal proceedings seeking a remedy relating to such a warrant or the treatment of a person in connection with such a warrant; (d) a disclosure for the purpose of the initiation, conduct or conclusion (by judgment or settlement) of legal proceedings relating to a remedy relating to a questioning warrant or the treatment of a person in connection with such a warrant; (e) a disclosure that is permitted by a prescribed authority to be made; (f) a disclosure to one or more of the following persons, by the subject of a minor questioning warrant, by a parent, guardian or sibling of the subject, or by a minor’s representative for the subject, of information described in paragraph (1)(c) or (2)(c) of this section in relation to the warrant: (i) the subject; (ii) a minor’s representative for the subject; (iii) a parent, guardian or sibling of the subject; (iv) a prescribed authority; (v) a person exercising authority under the warrant; (vi) an IGIS official; (vii) the Commonwealth Ombudsman; (viii) a complaints agency; (g) a disclosure for the purpose of making an application for assistance under subsection 34JE(1); (h) a disclosure that is permitted by the Director‑General to be made; (i) a disclosure that is permitted by the Attorney‑General to be made; (j) a disclosure that is prescribed by the regulations. (6) For the purposes of paragraph (e) of the definition of permitted disclosure in subsection (5), a prescribed authority may give a direction, not inconsistent with the regulations (if any), permitting: (a) the subject of a questioning warrant; or (b) a lawyer for the subject of a questioning warrant; or (c) a minor’s representative mentioned in subsection 34FG(1); to disclose specified information to a specified person. The direction may be given either unconditionally or subject to specified conditions. > Note: The prescribed authority may revoke or amend the direction: see subsection 33(3) of the Acts Interpretation Act 1901. (7) A prescribed authority may give written permission under subsection (6): (a) on the prescribed authority’s own initiative; or (b) on application by, or on behalf of, the person to whom the permission relates. (8) For the purposes of paragraph (h) of the definition of permitted disclosure in subsection (5), the Director‑General may give written permission for a disclosure. The permission may be given either unconditionally or subject to specified conditions. > Note: The Director‑General may revoke or amend the permission: see subsection 33(3) of the Acts Interpretation Act 1901. (9) For the purposes of paragraph (i) of the definition of permitted disclosure in subsection (5), the Attorney‑General may, after obtaining advice from the Director‑General, give written permission for a disclosure. The permission may be given either unconditionally or subject to specified conditions. > Note: The Attorney‑General may, after obtaining advice from the Director‑General, revoke or amend the permission: see subsection 33(3) of the Acts Interpretation Act 1901. (10) In deciding whether to give permission to a person under subsection (6), (8) or (9), the prescribed authority, the Director‑General or the Attorney‑General (as the case requires) must take into account: (a) the person’s family and employment interests, to the extent that the prescribed authority, the Director‑General or the Attorney‑General (as the case requires) is aware of those interests; and (b) the public interest; and (c) the risk to security if the permission were given; and (d) any submissions made by the person, the person’s lawyer or the Organisation. This subsection does not limit the matters that may be taken into account. (11) If a permission under subsection (6), (8) or (9) is given subject to a condition and the condition is not met, the permission is not in force. (12) Regulations made for the purposes of paragraph (j) of the definition of permitted disclosure in subsection (5) may prescribe a disclosure by reference to one or more of the following: (a) the person making the disclosure; (b) the person to whom the disclosure is made; (c) the circumstances in which the disclosure is made; (d) the purpose of the disclosure; (e) the nature of information disclosed; (f) an opinion of a specified person about the possible or likely effect of the disclosure. This subsection does not limit the way in which such regulations may prescribe a disclosure. Offences apply to original and previously disclosed information (13) To avoid doubt, subsections (1) and (2) apply whether or not the discloser has the information that the discloser discloses as a result of a disclosure by another person. Relationship with other laws prohibiting disclosure (14) This section has effect in addition to, and does not limit, other laws of the Commonwealth that prohibit the disclosure of information.