40DUnauthorised recording of information or matter—ASIS, AGO, DIO and ASD

#### 40D Unauthorised recording of information or matter—ASIS, AGO, DIO and ASD (1) A person commits an offence if: (a) the person makes a record of any information or matter; and (b) the information or matter was acquired or prepared by or on behalf of ASIS, AGO, DIO or ASD (the relevant agency) in connection with its functions, or relates to the performance by the relevant agency of its functions; and (c) the information or matter has come to the knowledge or into the possession of the person by reason of the person: (i) being, or having been, a staff member of the relevant agency or an agent of ASIS; or (ii) having entered into any contract, agreement or arrangement with the relevant agency; or (iii) having been an employee or agent of a person who has entered into a contract, agreement or arrangement with the relevant agency; and (d) the record was not made: (i) in the course of the person’s duties as a staff member or agent; or (ii) in accordance with a contract, agreement or arrangement with the relevant agency; or (iii) by the person acting within the limits of authority conferred on the person by the head of the relevant agency; or (iv) with the approval of the head of the relevant agency or of a staff member of the relevant agency having the authority of the head of the relevant agency 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 40C(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: > head of the relevant agency has the same meaning as in section 39.