35PUnauthorised disclosure of information

#### 35P Unauthorised disclosure of information Disclosures by entrusted persons (1) A person commits an offence if: (a) the person is, or has been, an entrusted person; and (b) information came to the knowledge or into the possession of the person in the person’s capacity as an entrusted person; and (c) the person discloses the information; and (d) the information relates to a special intelligence operation. Penalty: Imprisonment for 5 years. > Note: Recklessness is the fault element for paragraphs (1)(b) and (d)—see section 5.6 of the Criminal Code. (1A) Strict liability applies to paragraph (1)(a). > Note: For strict liability, see section 6.1 of the Criminal Code. (1B) A person commits an offence if: (a) the person is, or has been, an entrusted person; and (b) information came to the knowledge or into the possession of the person in the person’s capacity as an entrusted person; and (c) the person discloses the information; and (d) the information relates to a special intelligence operation; and (e) either or both of the following subparagraphs apply: (i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation; (ii) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation. Penalty: Imprisonment for 10 years. > Note: Recklessness is the fault element for paragraphs (1B)(b) and (d) and subparagraph (1B)(e)(ii)—see section 5.6 of the Criminal Code. (1C) Strict liability applies to paragraph (1B)(a). > Note: For strict liability, see section 6.1 of the Criminal Code. Other disclosures (2) A person commits an offence if: (a) the person discloses information; and (b) the information relates to a special intelligence operation; and (c) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation. Penalty: Imprisonment for 5 years. > Note: Recklessness is the fault element for paragraphs (2)(b) and (c)—see section 5.6 of the Criminal Code. (2A) A person commits an offence if: (a) the person discloses information; and (b) the information relates to a special intelligence operation; and (c) either or both of the following subparagraphs apply: (i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation; (ii) the person knows that the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation. Penalty: Imprisonment for 10 years. > Note: Recklessness is the fault element for paragraph (2A)(b)—see section 5.6 of the Criminal Code. Exceptions (3) Subsections (1) to (2A) do not apply if the disclosure was: (a) in connection with the administration or execution of this Division; or (b) for the purposes of any legal proceedings arising out of or otherwise related to this Division or of any report of any such proceedings; or (c) in accordance with any requirement imposed by law; or (d) in connection with the performance of functions or duties, or the exercise of powers, of the Organisation; or (e) for the purpose of obtaining legal advice in relation to the special intelligence operation; or (f) to an IGIS official for the purpose of exercising powers, or performing functions or duties, as an IGIS official; or (g) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, 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). (3A) Subsections (2) and (2A) do not apply to a person disclosing information if: (a) the information has already been communicated, or made available, to the public (the prior publication); and (b) the person was not involved in the prior publication (whether directly or indirectly); and (c) at the time of the disclosure, the person believes that the disclosure: (i) will not endanger the health or safety of any person; and (ii) will not prejudice the effective conduct of a special intelligence operation; and (d) 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 subsection (3A)—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), (1B), (2) or (2A). (5) Subsection (4) does not, by implication, affect the interpretation of any other provision of this Act.