44Offences—dealing with and making records

44 Offences—dealing with and making records

Unauthorised dealing with records (1) A person commits an offence if: (a) the person engages in any of the following conduct (the relevant conduct): (i) copying a record; (ii) transcribing a record; (iii) retaining a record; (iv) removing a record; (v) dealing with a record in any other manner; and (b) the record was obtained by the person by reason of: (i) the person being, or having been, a staff member of ONI; or (ii) the person having entered into any contract, agreement or arrangement with ONI; or (iii) the person having been an employee or agent of a person who has entered into a contract, agreement or arrangement with ONI; and (c) the record: (i) was acquired or prepared by or on behalf of ONI in connection with its functions; or (ii) relates to the performance by ONI of its functions; and (d) the relevant conduct was not engaged in: (i) in the course of the person’s duties as a staff member; or (ii) in accordance with a contract, agreement or arrangement with ONI; or (iii) by the person acting within the limits of authority conferred on the person by the Director‑General; or (iv) with the approval of the Director‑General or a staff member having the authority of the Director‑General to give such an approval.

Penalty: Imprisonment for 3 years.

Unauthorised recording of information or matter (2) A person commits an offence if: (a) the person makes a record of any information or matter; and (b) the information or matter has come to the knowledge or into the possession of the person by reason of: (i) the person being, or having been, a staff member of ONI; or (ii) the person having entered into any contract, agreement or arrangement with ONI; or (iii) the person having been an employee or agent of a person who has entered into a contract, agreement or arrangement with ONI; and (c) the information or matter: (i) was acquired or prepared by or on behalf of ONI in connection with its functions; or (ii) relates to the performance by ONI of its functions; and (d) the record was not made: (i) in the course of the person’s duties as a staff member; or (ii) in accordance with a contract, agreement or arrangement with ONI; or (iii) by the person acting within the limits of authority conferred on the person by the Director‑General; or (iv) with the approval of the Director‑General or of a staff member having the authority of the Director‑General to give such an approval.

Penalty: Imprisonment for 3 years.

Exception—record, information or matter lawfully available (3) Subsection (1) does not apply to a record, and subsection (2) 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 (3): see subsection 13.3(3) of the Criminal Code.