(i) his or her being, or having been, a Commonwealth officer;
(ii) his or her being otherwise engaged to perform work for a Commonwealth entity;
(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and
(b) the information has already been communicated, or made available, to the public (the prior publication); and
(c) the person was not involved in the prior publication (whether directly or indirectly); and
(d) at the time of the communication, removal, holding or dealing, the person believes that engaging in that conduct will not cause harm to Australia’s interests or the security or defence of Australia; and
(e) 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 this subsection (see subsection 13.3(3)).
Information relating to a person etc.
(9) 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:
(i) his or her being, or having been, a Commonwealth officer;
(ii) his or her being otherwise engaged to perform work for a Commonwealth entity;
(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and
(b) at the time of the communication, removal, holding or dealing, the person believes that the making or obtaining of the information by the person was required or authorised by law; and
(c) having regard to the circumstances of the making or obtaining of the information, the person has reasonable grounds for that belief; and
(d) any of the following apply:
(i) the person communicates the information to the person to whom the information relates;
(ii) the person is the person to whom the information relates;
(iii) the communication, removal, holding or dealing is in accordance with the express or implied consent of the person to whom the information relates.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(10) To avoid doubt, a defence to an offence may constitute an authorisation for the purposes of paragraph (9)(b).
Removing, holding or otherwise dealing with information for the purposes of communicating information
(11) For the purposes of subsection (3), (4), (4B), (5) or (5A), it is not necessary to prove that information, that was removed, held or otherwise dealt with for the purposes of communicating it, was actually communicated.
Burden of proof for integrity agency officials
(12) Despite subsection 13.3(3), in a prosecution for an offence against this Division, a person mentioned in subparagraph (3)(a)(i), (ii), (iia) or (iii) does not bear an evidential burden in relation to the matter in:
(a) subsection (1), (4), (4A) or (4B); or
(b) either of the following:
(i) subparagraph (3)(a)(i), (ii), (iia) or (iii);
(ii) paragraph (3)(b), to the extent that that paragraph relates to the Inspector‑General of Intelligence and Security, the Ombudsman, the Australian Information Commissioner, the National Anti‑Corruption Commissioner or the Inspector of the National Anti‑Corruption Commission.
Defences do not limit each other
(13) No defence in this section limits the operation of any other defence in this section.
Division 123—Miscellaneous
123.1 Injunctions
Enforceable provisions
(1) The provisions of Division 122 are enforceable under Part 7 of the Regulatory Powers Act.
Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
Authorised person and relevant court
(2) For the purposes of Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of Division 122 of this Act:
(a) the Minister is an authorised person; and
(b) each of the following is a relevant court:
(i) the Federal Court of Australia;
(ii) the Federal Circuit and Family Court of Australia (Division 2);
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Extension to external Territories
(3) Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of Division 122 of this Act, extends to every external Territory.
123.2 Forfeiture of articles etc.
(1) A sketch, article, record or document which is made, obtained, recorded, retained, possessed or otherwise dealt with in contravention of this Part is forfeited to the Commonwealth.
(2) In subsection (1), sketch, article and record have the same respective meanings as in Part 5.2.
123.3 Extended geographical jurisdiction—category D
Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Part.
123.4 Effect of this Part on other rights, privileges, immunities or defences
Nothing in this Part limits or affects any other right, privilege, immunity or defence existing apart from this Part.
123.5 Requirements before proceedings can be initiated
(1) Proceedings for the commitment of a person for trial for an offence against this Part must not be instituted without:
(a) the written consent of the Attorney‑General; and
(b) for proceedings that relate to security classified information—a certification by the Attorney‑General that, at the time of the conduct that is alleged to constitute the offence, it was appropriate that the information had a security classification.
(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent or certification having been obtained:
(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;
(b) a person may be charged with the offence;
(c) a person so charged may be remanded in custody or on bail.
(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
(4) In deciding whether to consent, the Attorney‑General must consider whether the conduct might be authorised in a way mentioned in section 122.5.
Chapter 7—The proper administration of Government
Part 7.1—Preliminary
Division 130—Preliminary
130.1 Definitions
In this Chapter:
duty:
(a) in relation to a person who is a Commonwealth public official—means any authority, duty, function or power that:
(i) is conferred on the person as a Commonwealth public official; or
(ii) the person holds himself or herself out as having as a Commonwealth public official; and
(b) in relation to a person who is a public official—means any authority, duty, function or power that:
(i) is conferred on the person as a public official; or
(ii) the person holds himself or herself out as having as a public official.
gain means:
(a) a gain in property, whether temporary or permanent; or
(b) a gain by way of the supply of services;
and includes keeping what one has.
loss means a loss in property, whether temporary or permanent, and includes not getting what one might get.
obtaining includes:
(a) obtaining for another person; and
(b) inducing a third person to do something that results in another person obtaining.
property includes:
(a) real property; and
(b) personal property; and
(c) money; and
(d) a thing in action or other intangible property; and
(e) electricity; and
(f) a wild creature that is:
(i) tamed; or
(ii) ordinarily kept in captivity; or
(iii) reduced (or in the course of being reduced) into the possession of a person.
services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities, but does not include rights or benefits being the supply of goods.
supply includes:
(a) in relation to goods—supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and
(b) in relation to services—provide, grant or confer.
Note: The expression person includes a Commonwealth entity. This is the combined effect of subsection 2C(1) of the Acts Interpretation Act 1901 (which provides that person includes a body politic or corporate), and the definition of person in the Dictionary.
130.2 When property belongs to a person
(1) For the purposes of this Chapter, property belongs to a person if, and only if:
(a) the person has possession or control of the property; or
(b) the person has a proprietary right or interest in the property, other than an equitable interest arising only from:
(i) an agreement to transfer an interest; or
(ii) an agreement to grant an interest; or
(iii) a constructive trust.
(2) Subsection (1) has effect subject to subsections 134.1(9) and (10) (which deal with money transfers).
130.3 Dishonesty
For the purposes of this Chapter, dishonest means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.
Note: The following provisions affect the meaning of dishonesty:
(a) section 131.2 (theft);
(b) section 134.1 (obtaining property by deception).
130.4 Determination of dishonesty to be a matter for the trier of fact
In a prosecution for an offence against this Chapter, the determination of dishonesty is a matter for the trier of fact.
Part 7.2—Theft and other property offences
Division 131—Theft
131.1 Theft
(1) A person commits an offence if:
(a) the person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property; and
(b) the property belongs to a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of theft.
(3) Absolute liability applies to the paragraph (1)(b) element of the offence of theft.
(4) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).
Note: For alternative verdicts, see sections 132.1 and 134.1.
131.2 Special rules about the meaning of dishonesty
(1) For the purposes of this Division, a person’s appropriation of property belonging to another is taken not to be dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
(2) However, the rule in subsection (1) does not apply if the person appropriating the property held it as trustee or personal representative.
(3) For the purposes of this Division, a person’s appropriation of property belonging to another may be dishonest even if the person or another person is willing to pay for the property.
131.3 Appropriation of property
(1) For the purposes of this Division, any assumption of the rights of an owner to ownership, possession or control of property, without the consent of the person to whom it belongs, amounts to an appropriation of the property. This includes, in a case where a person has come by property (innocently or not) without committing theft, any later such assumption of rights without consent by keeping or dealing with it as owner.
(2) For the purposes of this Division, if property, or a right or interest in property, is, or purports to be, transferred or given to a person acting in good faith, a later assumption by the person of rights which the person had believed himself or herself to be acquiring does not, because of any defect in the transferor’s title, amount to an appropriation of the property.
131.4 Theft of land or things forming part of land
(1) For the purposes of this Division, a person cannot commit theft of land, except in the following cases:
(a) the case where the person appropriates anything forming part of the land by severing it or causing it to be severed;
(b) the case where:
(i) the person is a trustee or personal representative, or is authorised (by power of attorney, as liquidator of a company or otherwise) to sell or dispose of land belonging to another; and
(ii) the person appropriates the land, or anything forming part of it, by dealing with it in breach of the confidence reposed in the person.
(2) For the purposes of this section, land does not include incorporeal hereditaments.
131.5 Trust property
(1) For the purposes of this Division, if property is subject to a trust, the persons to whom the property belongs include any person who has a right to enforce the trust.
(2) Accordingly, for the purposes of this Division, an intention to defeat the trust is an intention to deprive any such person of the property.
131.6 Obligation to deal with property in a particular way
For the purposes of this Division, if:
(a) a person receives property from or on account of another; and
(b) the person is under a legal obligation to the other to retain and deal with that property or its proceeds in a particular way;
the property or proceeds belong (as against the person) to the other.
131.7 Property obtained because of fundamental mistake
(1) For the purposes of this Division, if:
(a) a person gets property by another’s fundamental mistake; and
(b) the person is under a legal obligation to make restoration (in whole or in part) of the property, its proceeds or value;
then, to the extent of that obligation, the property or proceeds belongs (as against the person) to the person entitled to restoration.
(2) For the purposes of this Division, an intention not to make restoration is:
(a) an intention to permanently deprive the person so entitled of the property or proceeds; and
(b) an appropriation of the property or proceeds without the consent of the person entitled to restoration.
(3) For the purposes of this section, a fundamental mistake is:
(a) a mistake about the identity of the person getting the property; or
(b) a mistake as to the essential nature of the property; or
(c) a mistake about the amount of any money if the person getting the money is aware of the mistake at the time of getting the money.
(4) In this section:
money includes anything that is equivalent to money. For this purpose, cheques, negotiable instruments and electronic funds transfers are taken to be equivalent to money.
131.8 Property of a corporation sole
For the purposes of this Division, property of a corporation sole belongs to the corporation despite a vacancy in the corporation.
131.9 Property belonging to 2 or more persons
If property belongs to 2 or more persons, a reference in this Division (other than paragraph 131.1(1)(b)) to the person to whom the property belongs is a reference to all of those persons.
131.10 Intention of permanently depriving a person of property
(1) For the purposes of this Division, if:
(a) a person appropriates property belonging to another without meaning the other permanently to lose the thing itself; and
(b) the person’s intention is to treat the thing as the person’s own to dispose of regardless of the other’s rights;
the person has the intention of permanently depriving the other of it.
(2) For the purposes of this section, a borrowing or lending of a thing amounts to treating the thing as the borrower’s or lender’s own to dispose of regardless of another’s rights if, and only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
(3) For the purposes of this section, if:
(a) a person has possession or control (lawfully or not) of property belonging to another; and
(b) the person parts with the property under a condition as to its return that the person may not be able to perform; and
(c) the parting is done for purposes of the person’s own and without the other’s authority;
the parting is taken to amount to treating the property as the person’s own to dispose of regardless of the other’s rights.
Note: See also paragraph 131.7(2)(a).
131.11 General deficiency
(1) For the purposes of this Division, a person may be convicted of theft of all or any part of a general deficiency in money even though the deficiency is made up of any number of particular sums of money that were appropriated over a period of time.
(2) For the purposes of this Division, a person may be convicted of theft of all or any part of a general deficiency in property other than money even though the deficiency is made up of any number of particular items of property that were appropriated over a period of time.
Division 132—Other property offences
132.1 Receiving
(1) A person commits an offence if the person dishonestly receives stolen property, knowing or believing the property to be stolen.
Penalty: Imprisonment for 10 years.
(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of receiving.
(2A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew or believed that the property belonged to a Commonwealth entity.
Stolen property
(3) For the purposes of this section, property is stolen property if, and only if:
(a) it is original stolen property (as defined by subsection (5)); or
(aa) it is previously received property (as defined by subsection (5A)); or
(b) it is tainted property (as defined by subsection (7)).
This subsection has effect subject to subsections (4) and (6).
(4) For the purposes of this section, stolen property does not include land obtained in the course of an offence against section 134.1.
Original stolen property
(5) For the purposes of this section, original stolen property is:
(a) property, or a part of property, that:
(i) was appropriated in the course of theft (whether or not the property, or the part of the property, is in the state it was in when it was so appropriated); and