45Prohibition on use, recording, communication or publication of protected information or its admission in evidence

45 Prohibition on use, recording, communication or publication of protected information or its admission in evidence

(1) A person commits an offence if: (a) the person uses, records, communicates or publishes any information; and (b) the information is protected information; and (c) the use, recording, communication or publication of the information is not permitted by this section or section 45A (which deals with information relating to integrity operations) or section 65B (which deals with information obtained before an interim control order is declared void).

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if: (a) the person uses, records, communicates or publishes any information; and (b) the information is protected information; and (c) the use, recording, communication or publication of the information is not permitted by this section or section 45A (which deals with information relating to integrity operations) or section 65B (which deals with information obtained before an interim control order is declared void); and (d) the use, recording, communication or publication of the information, endangers the health or safety of any person or prejudices the effective conduct of an investigation into a relevant offence.

Penalty: Imprisonment for 10 years.

(3) Subject to subsections (4) and (5) and section 65B, protected information may not be admitted in evidence in any proceedings. (4) Subsections (1), (2) and (3) do not apply to: (aa) the use, recording, communication or publication of protected information in connection with the administration or execution of this Act; or (a) the use, recording, communication or publication of any information that has been disclosed in proceedings in open court lawfully; or (b) the use or communication of protected information by a person who believes on reasonable grounds that the use or communication is necessary to help prevent or reduce the risk of serious violence to a person or substantial damage to property; or (c) the communication to the Director‑General (within the meaning of the Australian Security Intelligence Organisation Act 1979) of protected information that relates or appears to relate to any matter within the functions of that organisation; or (d) the communication to the agency head (within the meaning of the Intelligence Services Act 2001) of an agency (within the meaning of that Act) of protected information that relates or appears to relate to any matter within the functions of that agency; or (e) the use, recording or communication of: (i) protected information referred to in paragraph (c)—by the Director‑General (within the meaning of the Australian Security Intelligence Organisation Act 1979), an ASIO employee (within the meaning of that Act) or an ASIO affiliate (within the meaning of that Act); or (ii) protected information referred to in paragraph (d)—by the agency head (within the meaning of the Intelligence Services Act 2001), or a staff member (within the meaning of that Act), of an agency (within the meaning of that Act); in the performance of his or her official functions; or (f) the communication of information for the purpose of providing it to one of the following entities (or to an appropriate authority of that entity): (i) a foreign country; (ii) the International Criminal Court; (iii) a War Crimes Tribunal; if the information was obtained under, or relates to, a surveillance device warrant issued in relation to an international assistance authorisation requested by that entity; or (g) the communication of information for the purpose of providing it to a foreign country, or an appropriate authority of a foreign country, if this has been authorised under subsection 13A(1) of the Mutual Assistance in Criminal Matters Act 1987; or (h) the communication of information for the purpose of providing it to the International Criminal Court, if this has been authorised under section 69A of the International Criminal Court Act 2002; or (i) the communication of information for the purpose of providing it to a War Crimes Tribunal, if this has been authorised under section 25A of the International War Crimes Tribunals Act 1995. (5) Protected information may be used, recorded, communicated or published, or may be admitted in evidence, if it is necessary to do so for any of the following purposes: (a) the investigation of a relevant offence (including a State or Territory relevant offence but not including a relevant offence referred to in paragraph (d) or (i)) or the making of a report on the outcome of such an investigation; (b) the making of a decision whether or not to bring a prosecution for a relevant offence (including a State or Territory relevant offence but not including a relevant offence referred to in paragraph (d) or (i)); (c) a relevant proceeding (not including a relevant proceeding in respect of a relevant offence referred to in paragraph (d) or (i)) or a State or Territory relevant proceeding; (d) an investigation of a complaint against, or into the conduct of, a public officer within the meaning of this Act and also any subsequent investigation or prosecution of a relevant offence arising directly from the investigation of the complaint, or into the conduct; (e) the making of a decision in relation to the appointment, term of appointment, termination of the appointment, or retirement, of a person referred to in paragraph (d); (f) the keeping of records and the making of reports by a law enforcement agency under Division 2; (g) an inspection by the Ombudsman under section 55; (ga) the performance of the Australian Crime Commission’s function covered by paragraph 7A(da) of the Australian Crime Commission Act 2002; (gb) a proceeding relating to the review of an adverse criminal intelligence assessment (within the meaning of Part III of the Australian Crime Commission Act 2002); (h) the performance of any function of the public interest monitor under either the Crime and Corruption Act 2001 of Queensland or the Police Powers and Responsibilities Act 2000 of Queensland or under both of those Acts with respect to ensuring compliance with either of those Acts or with this Act; (i) an investigation under the Privacy Act 1988 or any other law of the Commonwealth concerning the privacy of personal information and also any subsequent investigation or prosecution of a relevant offence arising directly from that first‑mentioned investigation; (ia) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under: (i) Division 104 (control orders), Division 105A (post‑sentence orders) or Division 395 (community safety orders) of the Criminal Code; or (ii) a post‑sentence detention law or a post‑sentence supervision law; or (iii) section 36C of the Australian Citizenship Act 2007; (j) in the case of information: (i) obtained under a warrant issued on the basis of a Part 5.3 supervisory order that is or was in force; or (ii) relating to an application for, the issue of, the existence of, or the expiration of, such a warrant; or (iii) that is likely to enable the identification of a person, object or premises specified in such a warrant; determining whether the order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; (k) in the case of information: (i) obtained under a tracking device authorisation given on the basis of a Part 5.3 supervisory order; or (ii) relating to an application for, the giving of, the existence of, or the expiration of, a tracking device authorisation given on the basis of a Part 5.3 supervisory order; or (iii) that is likely to enable the identification of a person, object or premises specified in a tracking device authorisation given on the basis of a Part 5.3 supervisory order; determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; (ka) in the case of information: (i) obtained under a warrant issued on the basis of a community safety supervision order that is or was in force; or (ii) relating to an application for, the issue of, the existence of, or the expiration of, such a warrant; or (iii) that is likely to enable the identification of a person, object or premises specified in such a warrant; determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; (kb) in the case of information: (i) obtained under a tracking device authorisation given on the basis of a community safety supervision order; or (ii) relating to an application for, the giving of, the existence of, or the expiration of, a tracking device authorisation given on the basis of a community safety supervision order; or (iii) that is likely to enable the identification of a person, object or premises specified in a tracking device authorisation given on the basis of a community safety supervision order; determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; (l) an IGIS official exercising powers, or performing functions or duties, as an IGIS official. (5A) To avoid doubt, paragraphs (5)(ia), (j) and (ka) do not limit paragraph (5)(c).