CRIMES ACT 1914

Part IAB - Controlled operations  

Division 4 - Compliance and monitoring  

SECTION 15HK   Unauthorised disclosure of information  

Disclosures 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.

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 Law Enforcement Integrity Commissioner Act 2006 , 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 or the Integrity Commissioner; 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 Law Enforcement Integrity Commissioner Act 2006 (see section 7 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 .




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