Document ID: chunk:federal_register_of_legislation:C2025C00060:section:8:p153
Version: federal_register_of_legislation:C2025C00060
Segment Type: section
Provision Reference: s 8 (pt 153/268)
Character Range: 754315–757138

other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
 (d) any one or more of the following applies:
 (i) the information has a security classification of secret or top secret;
 (ii) the dealing with the information damages the security or defence of Australia;
 (iii) the dealing with the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against of a law of the Commonwealth;
 (iv) the dealing with the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.
Note: The fault elements for this offence are intention for paragraph (2)(a) and recklessness for paragraphs (2)(b) to (d) (see section 5.6).
Penalty: Imprisonment for 2 years.

Proof of identity not required
 (3) In proceedings for an offence against this section, the prosecution is not required to prove the identity of the other person referred to in paragraph (1)(c) or (2)(c).

122.5  Defences

Powers, functions and duties in a person's capacity as a public official etc. or under arrangement
 (1) It is a defence to a prosecution for an offence by a person against this Division that:
 (a) the person was exercising a power, or performing a function or duty, in the person's capacity as a public official or a person who is otherwise engaged to perform work for a Commonwealth entity; or
 (b) the person communicated, removed, held or otherwise dealt with the information in accordance with an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information.
Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).

Information that is already public
 (2) It is a defence to a prosecution for an offence by a person against this Division that the relevant information 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)).

Information communicated etc. to integrity agency
 (3) It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it:
 (a) to any of the following:
 (i) the Inspector‑General of Intelligence and Security, or a person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986;
 (ii) the Commonwealth Ombudsman, or another officer within the meaning of subsection 35(1) of