Document ID: chunk:federal_register_of_legislation:C2025C00060:section:4:p11
Version: federal_register_of_legislation:C2025C00060
Segment Type: section
Provision Reference: s 4 (pt 11/21)
Character Range: 308538–311387

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)).

91.5  Matters affecting sentencing for offence against subsection 91.1(1)

 (1) In determining the sentence to be passed in respect of a person for an offence against subsection 91.1(1) (punishable by life imprisonment), the court must take into account any circumstances set out in paragraph 91.6(1)(b) that exist in relation to the commission of the offence.

 (2) However, the court need only take the circumstances into account so far as the circumstances are known to the court and relevant.

 (3) The circumstances are in addition to any other matters the court must take into account (for example, the matters mentioned in section 16A of the Crimes Act 1914).

91.6  Aggravated espionage offence

 (1) A person commits an offence against this section if:
 (a) the person commits an offence against section 91.1 (other than subsection 91.1(1)), 91.2 or 91.3 (the underlying offence); and
 (b) any of the following circumstances exist in relation to the commission of the underlying offence:
 (ii) the person dealt with information or an article from a foreign intelligence agency;
 (iii) the person dealt with 5 or more records or articles each of which has a security classification;
 (iv) the person altered a record or article to remove or conceal its security classification;
 (v) at the time the person dealt with the information or article, the person held an Australian Government security clearance allowing access to information that has, or articles that have, a security classification of at least secret.

            Penalty:
 (a) if the penalty for the underlying offence is imprisonment for 25 years—imprisonment for life; or
 (b) if the penalty for the underlying offence is imprisonment for