Commonwealth Consolidated Acts Commonwealth Consolidated ActsDisclosures by entrusted persons
(1) A person commits an offence if:
(a) the person is, or has been, an entrusted person; and
(b) information came to the knowledge or into the possession of the person in the person's capacity as an entrusted person; and
(c) the person discloses the information; and
(d) the information relates to a controlled operation.
Note: Recklessness is the fault element for paragraphs (1)(b) and (d)--see section 5.6 of the Criminal Code .
Penalty: Imprisonment for 2 years.
(1A) Strict liability applies to paragraph (1)(a).
Note: For strict liability, see section 6.1 of the Criminal Code .
(1B) A person commits an offence if:
(a) the person is, or has been, an entrusted person; and
(b) information came to the knowledge or into the possession of the person in the person's capacity as an entrusted person; and
(c) the person discloses the information; and
(d) the information relates to a controlled operation; and
(e) either or both of the following subparagraphs apply:
(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation;
(ii) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.
Note: Recklessness is the fault element for paragraphs (1B)(b) and (d) and subparagraph (1B)(e)(ii)--see section 5.6 of the Criminal Code .
Penalty: Imprisonment for 10 years.
(1C) Strict liability applies to paragraph (1B)(a).
Note: For strict liability, see section 6.1 of the Criminal Code .
Other disclosures
(1D) A person commits an offence if:
(a) the person discloses information; and
(b) the information relates to a controlled operation; and
(c) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.
Note: Recklessness is the fault element for paragraphs (1D)(b) and (c)--see section 5.6 of the Criminal Code .
Penalty: Imprisonment for 2 years.
(1E) A person commits an offence if:
(a) the person discloses information; and
(b) the information relates to a controlled operation; and
(c) either or both of the following subparagraphs apply:
(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation;
(ii) the person knows that the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.
Note: Recklessness is the fault element for paragraph (1E)(b)--see section 5.6 of the Criminal Code .
Penalty: Imprisonment for 10 years.
Exceptions--general
(2) Subsections (1) to (1E) do not apply if the disclosure was:
(a) in connection with the administration or execution of this Part; or
(b) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or
(c) for the purposes of obtaining legal advice in relation to the controlled operation; or
(d) in accordance with any requirement imposed by law; or
(e) in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency.
Note: A defendant bears an evidential burden in relation to the matters in this subsection--see subsection 13.3(3) of the Criminal Code .
Exceptions--integrity testing controlled operation authority
(2A) Subsections (1) to (1E) do not apply, in the case of a controlled operation authorised by an integrity testing controlled operation authority (granted on the basis that an integrity testing authority is in effect), if the disclosure was:
(a) in any of the circumstances mentioned in paragraphs (2)(a) to (e); or
(b) in connection with the administration or execution of Part IABA, or the National Anti - Corruption Commission Act 2022 , in relation to the integrity testing authority; or
(c) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, the controlled operation; or
(d) in relation to the integrity testing authority:
(i) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, an integrity testing operation authorised by the authority; or
(ii) to an authority of the Commonwealth, a State or a Territory, if the disclosure relates to the misconduct of an employee or officer of the authority.
Note: A defendant bears an evidential burden in relation to the matters in this subsection--see subsection 13.3(3) of the Criminal Code .
Exception--misconduct
(3) Subsections (1) to (1E) do not apply if:
(a) the person (the discloser ) discloses the information to the Ombudsman, the National Anti - Corruption Commissioner or the Inspector of the National Anti - Corruption Commission; and
(b) the discloser informs the person to whom the disclosure is made of the discloser's identity before making the disclosure; and
(c) the information concerns:
(i) a corruption issue (within the meaning of the National Anti - Corruption Commission Act 2022 ) or a NACC corruption issue (within the meaning of that Act) in relation to a controlled operation; or
(ii) misconduct in relation to a controlled operation; and
(d) the discloser considers that the information may assist a person referred to in paragraph (a) to perform the person's functions or duties; and
(e) the discloser makes the disclosure in good faith.
Note: A defendant bears an evidential burden in relation to the matters in this subsection--see subsection 13.3(3) of the Criminal Code.
Exception--previously published information
(4) Subsections (1D) and (1E) do not apply to a person disclosing information if:
(a) the information has already been communicated, or made available, to the public (the prior publication); and
(b) the person was not involved in the prior publication (whether directly or indirectly); and
(c) at the time of the disclosure, the person believes that the disclosure:
(i) will not endanger the health or safety of any person; and
(ii) will not prejudice the effective conduct of a controlled operation; and
(d) 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 subsection (4)--see subsection 13.3(3) of the Criminal Code .