Document ID: chunk:federal_register_of_legislation:C2023C00273:section:44:p2
Version: federal_register_of_legislation:C2023C00273
Segment Type: section
Provision Reference: s 44 (pt 2/2)
Character Range: 57510–59707

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, information or matter lawfully available
 (3) Subsection (1) does not apply to a record, and subsection (2) does not apply to information or matter, 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 (3): see subsection 13.3(3) of the Criminal Code.

Exception—dealing with or making record for IGIS officials
 (4) Subsection (1) does not apply if the person deals with, and subsection (2) does not apply if the person makes, the record for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code.

Extended geographical jurisdiction
 (5) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against this section.

Alternative verdicts
 (6) In a prosecution for an offence against subsection (1), the trier of fact may find the defendant not guilty of that offence but guilty of an offence against subsection (2) if:
 (a) the trier of fact:
 (i) is not satisfied that the defendant is guilty of the offence against subsection (1); but
 (ii) is satisfied beyond reasonable doubt that the defendant is guilty of the offence against subsection (2); and
 (b) the defendant has been accorded procedural fairness in relation to that finding of guilt.
 (7) In a prosecution for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence but guilty of an offence against subsection (1) if:
 (a) the trier of fact:
 (i) is not satisfied that the defendant is guilty of the offence against subsection (2); but
 (ii) is satisfied beyond reasonable doubt that the defendant is guilty of the offence against subsection (1); and
 (b) the defendant has been accorded procedural fairness in relation to that finding of guilt.