(1) 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) his or her being, or having been, a staff member of DIO; or
(ii) his or her having entered into any contract, agreement or arrangement with DIO; or
(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with DIO; and
(c) the information or matter:
(i) was acquired or prepared by or on behalf of DIO in connection with its functions; or
(ii) relates to the performance by DIO 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 DIO; or
(iii) by the person acting within the limits of authority conferred on the person by the Director of DIO; or
(iv) with the approval of the Director of DIO or of a staff member having the authority of the Director of DIO 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--communication to the Inspector-General of Intelligence and Security
(2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 .
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code .
(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 40L(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.