Document ID: chunk:federal_register_of_legislation:C2014A00108:clause:6_40c
Version: federal_register_of_legislation:C2014A00108
Segment Type: clause
Provision Reference: sch 6 cl 40C
Character Range: 140719–143427

40C  Unauthorised dealing with records—ASIS
 (1) A person commits an offence if:
 (a) the person engages in any of the following conduct (the relevant conduct):
 (i) copying a record;
 (ii) transcribing a record;
 (iii) retaining a record;
 (iv) removing a record;
 (v) dealing with a record in any other manner; and
 (b) the record was obtained by the person by reason of:
 (i) his or her being, or having been, a staff member or agent of ASIS; or
 (ii) his or her having entered into any contract, agreement or arrangement with ASIS; or
 (iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with ASIS; and
 (c) the record:
 (i) was acquired or prepared by or on behalf of ASIS in connection with its functions; or
 (ii) relates to the performance by ASIS of its functions; and
 (d) the relevant conduct was not engaged in:
 (i) in the course of the person's duties as a staff member or agent; or
 (ii) in accordance with a contract, agreement or arrangement with ASIS; or
 (iii) by the person acting within the limits of authority conferred on the person by the Director‑General; or
 (iv) with the approval of the Director‑General or of a staff member having the authority of the Director‑General to give such an approval.
Penalty: Imprisonment for 3 years.

Exception—record lawfully available
 (2) Subsection (1) does not apply to a record 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—Inspector‑General of Intelligence and Security
 (2A) Subsection (1) does not apply if the person deals with 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.

Alternative verdict
 (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 40D(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.