(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note: The fault elements for this offence are intention for paragraph (3)(a) and recklessness for paragraphs (3)(b) and (c) (see section 5.6).
Penalty: Imprisonment for 3 years.
Failure to comply with direction regarding information
(4) A person commits an offence if:
(a) the person is given a direction; and
(b) the direction is a lawful direction regarding the retention, use or disposal of information; and
(c) the person fails to comply with the direction; and
(ca) the failure to comply with the direction results in a risk to the security of the information; and
(d) the information is inherently harmful information; and
(e) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note: The fault elements for this offence are intention for paragraph (4)(c) and recklessness for paragraphs (4)(a), (b), (ca), (d) and (e) (see section 5.6).
Penalty: Imprisonment for 3 years.
122.2 Conduct by current and former Commonwealth officers etc. causing harm to Australia’s interests
Communication causing harm to Australia’s interests
(1) A person commits an offence if:
(a) the person communicates information; and
(b) either:
(i) the communication causes harm to Australia’s interests; or
(ii) the communication will or is likely to cause harm to Australia’s interests; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note 1: For the definition of cause harm to Australia’s interests, see section 121.1.
Note 2: For exceptions to the offences in this section, see section 122.5.
Penalty: Imprisonment for 7 years.
Other conduct causing harm to Australia’s interests
(2) A person commits an offence if:
(a) the person deals with information (other than by communicating it); and
(b) either:
(i) the dealing causes harm to Australia’s interests; or
(ii) the dealing will or is likely to cause harm to Australia’s interests; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 3 years.
Information removed from, or held outside, proper place of custody
(3) A person commits an offence if:
(a) the person:
(i) removes information from a proper place of custody for the information; or
(ii) holds information outside a proper place of custody for the information; and
(b) either:
(i) the removal or holding causes harm to Australia’s interests; or
(ii) the removal or holding will or is likely to cause harm to Australia’s interests; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 3 years.
Failure to comply with direction regarding information
(4) A person commits an offence if:
(a) the person is given a direction; and
(b) the direction is a lawful direction regarding the retention, use or disposal of information; and
(c) the person fails to comply with the direction; and
(d) either:
(i) the failure to comply causes harm to Australia’s interests; or
(ii) the failure to comply will or is likely to cause harm to Australia’s interests; and
(e) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 3 years.
122.3 Aggravated offence
(1) A person commits an offence against this section if:
(a) the person commits an offence against section 122.1 or 122.2 (the underlying offence); and
(b) any of the following circumstances exist in relation to the commission of the underlying offence:
(ii) if the commission of the underlying offence involves a record—the record is marked with a code word, “for Australian eyes only” or as prescribed by the regulations for the purposes of this subparagraph;
(iii) the commission of the underlying offence involves 5 or more records each of which has a security classification;
(iv) the commission of the underlying offence involves the person altering a record to remove or conceal its security classification;
(v) at the time the person committed the underlying offence, the person held an Australian Government security clearance allowing the person to access information that has a security classification of at least secret.
Penalty:
(a) if the penalty for the underlying offence is imprisonment for 7 years—imprisonment for 10 years; or
(b) if the penalty for the underlying offence is imprisonment for 3 years—imprisonment for 5 years.
(2) There is no fault element for the physical element in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.
(4) To avoid doubt:
(a) a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence; and
(b) a person may be convicted of an offence against this section even if the person has not been convicted of the underlying offence.
122.4 Unauthorised disclosure of information by current and former Commonwealth officers etc.
(1) A person commits an offence if:
(a) the person communicates information; and
(b) the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(c) the person is under a duty not to disclose the information; and
(d) the duty arises under a law of the Commonwealth.
Penalty: Imprisonment for 2 years.
(2) Absolute liability applies in relation to paragraph (1)(d).
Sunset provision
(3) This section does not apply in relation to any communication of information that occurs after the end of 29 June 2026.
122.4A Communicating and dealing with information by non‑Commonwealth officers etc.
Communication of information
(1) A person commits an offence if:
(a) the person communicates information; and
(b) the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(c) the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(d) any one or more of the following applies:
(i) the information has a security classification of secret or top secret;
(ii) the communication of the information damages the security or defence of Australia;
(iii) the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth;
(iv) the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.
Note 1: For exceptions to the offences in this section, see section 122.5.
Note 2: The fault elements for this offence are intention for paragraph (1)(a) and recklessness for paragraphs (1)(b) to (d) (see section 5.6).
Penalty: Imprisonment for 5 years.
Other dealings with information
(2) A person commits an offence if:
(a) the person deals with information (other than by communicating it); and
(b) the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(c) the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(d) any one or more of the following applies:
(i) the information has a security classification of secret or top secret;
(ii) the dealing with the information damages the security or defence of Australia;
(iii) the dealing with the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against of a law of the Commonwealth;
(iv) the dealing with the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.
Note: The fault elements for this offence are intention for paragraph (2)(a) and recklessness for paragraphs (2)(b) to (d) (see section 5.6).
Penalty: Imprisonment for 2 years.
Proof of identity not required
(3) In proceedings for an offence against this section, the prosecution is not required to prove the identity of the other person referred to in paragraph (1)(c) or (2)(c).
122.5 Defences
Powers, functions and duties in a person’s capacity as a public official etc. or under arrangement
(1) It is a defence to a prosecution for an offence by a person against this Division that:
(a) the person was exercising a power, or performing a function or duty, in the person’s capacity as a public official or a person who is otherwise engaged to perform work for a Commonwealth entity; or
(b) the person communicated, removed, held or otherwise dealt with the information in accordance with an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information.
Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).
Information that is already public
(2) It is a defence to a prosecution for an offence by a person against this Division that the relevant information 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 matters in this subsection (see subsection 13.3(3)).
Information communicated etc. to integrity agency
(3) It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it:
(a) to any of the following:
(i) the Inspector‑General of Intelligence and Security, or a person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986;
(ii) the Commonwealth Ombudsman, or another officer within the meaning of subsection 35(1) of the Ombudsman Act 1976;
(iia) the Australian Information Commissioner, a member of the staff of the Office of the Australian Information Commissioner, or a consultant engaged under the Australian Information Commissioner Act 2010;
(iii) the National Anti‑Corruption Commissioner or another staff member of the NACC (within the meaning of the National Anti‑Corruption Commission Act 2022);
(iv) the Inspector of the National Anti‑Corruption Commission or a person assisting the Inspector (within the meaning of the National Anti‑Corruption Commission Act 2022); and
(b) for the purpose of the Inspector‑General, the Ombudsman, the Australian Information Commissioner, the National Anti‑Corruption Commissioner or the Inspector of the National Anti‑Corruption Commission (as the case requires) exercising a power, or performing a function or duty.
Note: A person mentioned in paragraph (3)(a) does not bear an evidential burden in relation to the matters in this subsection (see subsection (12)).
Information communicated etc. in accordance with the Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982
(4) It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it, in accordance with:
(a) the Public Interest Disclosure Act 2013; or
(b) the Freedom of Information Act 1982.
Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).
Information communicated etc. for the purpose of reporting offences and maladministration
(4A) It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information for the primary purpose of reporting, to an appropriate agency of the Commonwealth, a State or a Territory:
(a) a criminal offence, or alleged criminal offence, against a law of the Commonwealth; or
(b) maladministration relating to the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth; or
(c) maladministration relating to the performance of functions of the Australian Federal Police under:
(i) the Australian Federal Police Act 1979; or
(ii) the Proceeds of Crime Act 2002.
Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).
Information communicated etc. to a Royal Commission
(4B) It is a defence to a prosecution for an offence by a person against this Division that:
(a) the person communicated, removed, held or otherwise dealt with the relevant information for the primary purpose of communicating it to a Royal Commission within the meaning of the Royal Commissions Act 1902 (whether or not as a result of a requirement); and
(b) at that time, the person reasonably believed that the relevant information was relevant to the Royal Commission’s inquiry.
Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).
Information communicated etc. to a court or tribunal
(5) It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it, to a court or tribunal (whether or not as a result of a requirement).
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Information communicated etc. for the purposes of obtaining or providing legal advice
(5A) It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information for the primary purpose of obtaining or providing, in good faith, legal advice in relation to:
(a) an offence against this Part; or
(b) the application of any right, privilege, immunity or defence (whether or not in this Part) in relation to such an offence;
whether that advice was obtained or provided before or after the person engaged in the conduct constituting the offence.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Information communicated etc. by persons engaged in business of reporting news etc.
(6) It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information in the person’s capacity as a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media, and:
(a) at that time, the person reasonably believed that engaging in that conduct was in the public interest (see subsection (7)); or
(b) the person:
(i) was, at that time, a member of the administrative staff of an entity that was engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media; and
(ii) acted under the direction of a journalist, editor or lawyer who was also a member of the staff of the entity, and who reasonably believed that engaging in that conduct was in the public interest (see subsection (7)).
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(7) Without limiting paragraph (6)(a) or (b), a person may not reasonably believe that communicating, removing, holding or otherwise dealing with information is in the public interest if:
(a) engaging in that conduct would be an offence under section 92 of the Australian Security Intelligence Organisation Act 1979 (making public the identity of ASIO employees and ASIO affiliates) or section 92A of that Act (disclosing the identity of ASIO employees and ASIO affiliates); or
(b) engaging in that conduct would be an offence under section 41 of the Intelligence Services Act 2001 (publication of identity of staff); or
(c) engaging in that conduct would be an offence under section 22, 22A or 22B of the Witness Protection Act 1994 (offences relating to Commonwealth, Territory, State participants or information about the national witness protection program); or
(d) that conduct was engaged in for the purpose of directly or indirectly assisting a foreign intelligence agency or a foreign military organisation.
Information that has been previously communicated
(8) It is a defence to a prosecution for an offence by a person against this Division if:
(a) the person did not make or obtain the relevant information by reason of any of the following: