Criminal Code Act 1995

A defence official (within the meaning of subsection (8)) is not subject to any civil or criminal liability for engaging in conduct inside or outside Australia if:

the conduct is engaged in on the reasonable belief that it is likely to cause a computer‑related act, event, circumstance or result to take place outside Australia (whether or not it in fact takes place outside Australia); and

the conduct is engaged in in the proper performance of authorised ADF activities.

A person is not subject to any civil or criminal liability for engaging in conduct inside or outside Australia if:

the conduct is preparatory to, in support of, or otherwise directly connected with, authorised ADF activities outside Australia; and

the conduct:

taken together with a computer‑related act, event, circumstance or result that took place, or was intended to take place, outside Australia, could amount to an offence; but

in the absence of that computer‑related act, event, circumstance or result, would not amount to an offence; and

the conduct is engaged in in the proper performance of authorised ADF activities.

Subsection (2) is not intended to permit any conduct in relation to premises, persons, computers, things, or carriage services in Australia, being:

conduct which ASIO could not engage in without a Minister authorising it by warrant issued under Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979 or under Part 2‑2 of the Telecommunications (Interception and Access) Act 1979; or

conduct engaged in to obtain information that ASIO could not obtain other than in accordance with Division 3 of Part 4‑1 of the Telecommunications (Interception and Access) Act 1979.

Subsections (1) and (2) have effect despite anything in a law of the Commonwealth or of a State or Territory, whether passed or made before or after the commencement of this subsection, unless the law expressly provides otherwise.

Subsection (4) does not affect the operation of subsection (3).

If:

a person engages in conduct referred to in subsection (1) or (2); and

the conduct causes material damage, material interference or material obstruction to a computer (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979) in Australia; and

apart from this section, the person would commit an offence against this Part;

the Chief of the Defence Force; and

if the person is not under the command of the Chief of the Defence Force—the Secretary of the Defence Department.

The notice must also provide details about the conduct that caused the damage, interference or obstruction to the computer.

In this section:

authorised by the Chief of the Defence Force; and

connected with the defence or security of Australia.

a member of the Australian Defence Force; or

a defence civilian (within the meaning of the Defence Force Discipline Act 1982); or

the Secretary of the Defence Department; or

an APS employee of the Defence Department; or

a consultant or contractor to the Defence Department; or

a person who is made available by another Commonwealth or State authority or other person to perform services for the Defence Department; or

any other person included in a class of persons specified under subsection (9).

The Secretary of the Defence Department or the Chief of the Defence Force may, by legislative instrument, specify one or more classes of persons for the purposes of paragraph (g) of the definition of defence official in subsection (8).

For specification by class, see subsection 13(3) of the Legislation Act 2003.

The Secretary of the Defence Department may, in writing, delegate the Secretary’s power under subsection (9) to an SES employee in the Defence Department.

The Chief of the Defence Force may, in writing, delegate the Chief’s power under subsection (9) to:

an officer of the Australian Navy who holds the rank of Commodore or a higher rank; or

an officer of the Australian Army who holds the rank of Brigadier or a higher rank; or

an officer of the Australian Air Force who holds the rank of Air Commodore or a higher rank.