Criminal Code Act 1995

A person commits an offence against this section if:

the person commits an offence against section 122.1 or 122.2 (the underlying offence); and

any of the following circumstances exist in relation to the commission of the underlying offence:

if the commission of the underlying offence involves a record—the record is marked with a code word, “for Australian eyes only” or as prescribed by the regulations for the purposes of this subparagraph;

the commission of the underlying offence involves 5 or more records each of which has a security classification;

the commission of the underlying offence involves the person altering a record to remove or conceal its security classification;

at the time the person committed the underlying offence, the person held an Australian Government security clearance allowing the person to access information that has a security classification of at least secret.

if the penalty for the underlying offence is imprisonment for 7 years—imprisonment for 10 years; or

if the penalty for the underlying offence is imprisonment for 3 years—imprisonment for 5 years.

There is no fault element for the physical element in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.

To avoid doubt:

a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence; and

a person may be convicted of an offence against this section even if the person has not been convicted of the underlying offence.