Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH  

Part 5.2 - Espionage and related offences  

Division 91 - Espionage  

Subdivision A - Espionage  

SECTION 91.4   Defences  

(1)  
It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article:


(a) in accordance with a law of the Commonwealth; or


(b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or


(c) in the person ' s capacity as a public official.

Note:

A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3 ).

(2)  
It is a defence to a prosecution for an offence by a person against this Subdivision that the information or article the person deals with is information or an article 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 matters in this subsection (see subsection 13.3 ).

(3)  
It is a defence to a prosecution for an offence by a person against section 91.1 , in which the prosecution relies on subparagraph 91.1(1)(c)(ii) or (2)(c)(ii) , or against section 91.3 , if:


(a) the person did not make or obtain the information or article by reason of any of the following:


(i) the person being, or having been, a Commonwealth officer (within the meaning of Part 5.6 );

(ii) the person being otherwise engaged to perform work for a Commonwealth entity;

(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and


(b) the information or article has already been communicated, or made available, to the public (the prior publication ); and


(c) the person was not involved in the prior publication (whether directly or indirectly); and


(d) at the time the person deals with the information or article, the person believes that doing so will not prejudice Australia ' s national security; and


(e) 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 this subsection (see subsection 13.3(3) ).




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