Unauthorised disclosure of information
317ZF Unauthorised disclosure of information
A person commits an offence if:
the person discloses information; and
the person is or was:
a designated communications provider; or
an employee of a designated communications provider; or
a contracted service provider of a designated communications provider; or
an employee of a contracted service provider of a designated communications provider; or
an entrusted ASIO person; or
an entrusted ASIS person; or
an entrusted ASD person; or
an officer of an interception agency; or
an officer or employee of the Commonwealth, a State or a Territory; or
a person appointed under subsection 317WA(2); or
a person appointed under subsection 317YA(2); or
an arbitrator appointed under section 317ZK; and
the information:
is technical assistance notice information; or
is technical capability notice information; or
is technical assistance request information; or
was obtained in accordance with a technical assistance notice; or
was obtained in accordance with a technical capability notice; or
was obtained in accordance with a technical assistance request; and
if the information is covered by subparagraph (c)(i), (ii) or (iii)—the information has come to the person’s knowledge, or into the person’s possession:
if the person is or was a designated communications provider—in connection with the person’s capacity as such a provider; or
if the person is or was an employee of a designated communications provider—because the person is or was employed by the provider in connection with its business as such a provider; or
if the person is or was a contracted service provider of a designated communications provider—in connection with the person’s business as such a contracted service provider; or
if the person is or was an employee of a contracted service provider of a designated communications provider—because the person is or was employed by the contractor in connection with its business as such a contracted service provider; or
if the person is or was an entrusted ASIO person—in the person’s capacity as such an entrusted ASIO person; or
if the person is or was an entrusted ASIS person—in the person’s capacity as such an entrusted ASIS person; or
if the person is or was an entrusted ASD person—in the person’s capacity as such an entrusted ASD person; or
if the person is or was an officer of an interception agency—in the person’s capacity as such an officer; or
if the person is or was an officer or employee of the Commonwealth, a State or a Territory—in the person’s capacity as such an officer or employee; or
if the person is or was a person appointed under subsection 317WA(2)—in the person’s capacity as such an appointee; or
if the person is or was a person appointed under subsection 317YA(2)—in the person’s capacity as such an appointee; or
if the person is or was an arbitrator appointed under section 317ZK—in the person’s capacity as such an arbitrator; and
if the information is covered by subparagraph (c)(iv), (v) or (vi)—the information has come to the person’s knowledge, or into the person’s possession:
if the person is or was an entrusted ASIO person—in the person’s capacity as such an entrusted ASIO person; or
if the person is or was an entrusted ASIS person—in the person’s capacity as such an entrusted ASIS person; or
if the person is or was an entrusted ASD person—in the person’s capacity as such an entrusted ASD person; or
if the person is or was an officer of an interception agency—in the person’s capacity as such an officer; or
if the person is or was an officer or employee of the Commonwealth, a State or a Territory—in the person’s capacity as such an officer or employee; or
if the person is or was an arbitrator appointed under section 317ZK—in the person’s capacity as such an arbitrator.
Penalty: Imprisonment for 5 years.
Exceptions
Subsection (1) does not apply if the disclosure was authorised under subsection (3), (5), (5A), (5B), (5C), (6), (7), (8), (9), (10), (11), (12A), (12B), (12C), (12D), (13), (14), (15) or (16).
Except as provided by subsection (2A) or (2B), a defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.
Despite subsection 13.3(3) of the Criminal Code, in a prosecution for an offence against subsection (1) of this section, an IGIS official does not bear an evidential burden in relation to the matters in subsection (2) of this section, to the extent to which that subsection relates to subsection (5) of this section.
Despite subsection 13.3(3) of the Criminal Code, in a prosecution for an offence against subsection (1) of this section, an Ombudsman official does not bear an evidential burden in relation to the matters in subsection (2) of this section, to the extent to which that subsection relates to subsection (5A), (5B) or (5C) of this section.
Authorised disclosures—general
A person covered by paragraph (1)(b) may disclose technical assistance notice information, technical capability notice information or technical assistance request information:
in connection with the administration or execution of this Part; or
for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or
in accordance with any requirement imposed by a law of the Commonwealth, a State or a Territory; or
in connection with the performance of functions, or the exercise of powers, by:
ASIO; or
the Australian Secret Intelligence Service; or
the Australian Signals Directorate; or
an interception agency; or
for the purpose of obtaining legal advice in relation to this Part; or
to an IGIS official for the purpose of exercising powers, or performing functions or duties, as an IGIS official; or
to an Ombudsman official for the purpose of exercising powers, or performing functions or duties, as an Ombudsman official.
For the purposes of subsection (3), this Part includes:
any other provision of this Act, so far as that other provision relates to this Part; and
the Regulatory Powers (Standard Provisions) Act 2014, so far as that Act relates to this Part.
Authorised disclosures—IGIS official
An IGIS official may disclose:
technical assistance notice information; or
technical capability notice information; or
technical assistance request information;
in connection with the IGIS official exercising powers, or performing functions or duties, as an IGIS official.
If a technical assistance notice is given by the chief officer of an interception agency of a State or Territory, an IGIS official may disclose technical assistance notice information that relates to the notice to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.
If a technical assistance request is given by the chief officer of an interception agency of a State or Territory, an IGIS official may disclose technical assistance request information that relates to the request to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.
Authorised disclosures—Ombudsman official
An Ombudsman official may disclose:
technical assistance notice information; or
technical capability notice information; or
technical assistance request information;
in connection with the Ombudsman official exercising powers, or performing functions or duties, as an Ombudsman official.
If a technical assistance notice is given by the chief officer of an interception agency of a State or Territory, an Ombudsman official may disclose technical assistance notice information that relates to the notice to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.
If a technical assistance request is given by the chief officer of an interception agency of a State or Territory, an Ombudsman official may disclose technical assistance request information that relates to the request to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.
Authorised disclosures—information sharing
The Director‑General of Security or a Communications Access Coordinator may disclose information that is:
technical assistance notice information; or
technical capability notice information; or
technical assistance request information;
to the chief officer of an interception agency for purposes relating to the performance of functions, or the exercise of powers, by the interception agency.
The chief officer of an interception agency may disclose information that is:
technical assistance notice information; or
technical capability notice information; or
technical assistance request information;
to the chief officer of another interception agency for purposes relating to the performance of functions, or the exercise of powers, by the other interception agency.
The Director‑General of Security, the Director‑General of the Australian Signals Directorate or the chief officer of an interception agency may disclose information that is:
technical assistance notice information; or
technical capability notice information; or
technical assistance request information;
to the Director‑General of the Australian Secret Intelligence Service for purposes relating to the performance of functions, or the exercise of powers, by the Australian Secret Intelligence Service.
The Director‑General of Security, the Director‑General of the Australian Secret Intelligence Service or the chief officer of an interception agency may disclose information that is:
technical assistance notice information; or
technical capability notice information; or
technical assistance request information;
to the Director‑General of the Australian Signals Directorate for purposes relating to the performance of functions, or the exercise of powers, by the Australian Signals Directorate.
A Communications Access Coordinator, the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Signals Directorate or the chief officer of an interception agency may disclose information that is:
technical assistance notice information; or
technical capability notice information; or
technical assistance request information;
to the Director‑General of Security for purposes relating to the performance of functions, or the exercise of powers, by ASIO.
The Director‑General of Security or the chief officer of an interception agency may disclose information that is:
technical assistance notice information; or
technical capability notice information; or
technical assistance request information;
to a Communications Access Coordinator for purposes relating to the performance of functions, or the exercise of powers, by a Communications Access Coordinator.
Before disclosing information under subsection (6), (7), (8), (9) or (10), the Director‑General of Security, the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Signals Directorate or the chief officer of an interception agency, as the case requires, must notify a Communications Access Coordinator of the proposed disclosure.
Authorised disclosures—Communications Access Coordinator
If:
the Attorney‑General has given a technical capability notice; and
the acts or things specified in the notice:
are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency of a State or Territory in relation to a matter covered by paragraph 317T(2)(a); or
are by way of giving help to an interception agency of a State or Territory in relation to a matter covered by paragraph 317T(2)(b);
a Communications Access Coordinator may disclose technical capability notice information that relates to the notice to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.
Authorised disclosures—State or Territory inspecting authority
If a technical assistance notice has been given to a designated communications provider by the chief officer of an interception agency of a State or Territory:
the designated communications provider; or
an employee of the designated communications provider; or
a contracted service provider of the designated communications provider; or
an employee of a contracted service provider of the designated communications provider;
may disclose technical assistance notice information that relates to the notice to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.
If a technical assistance request has been given to a designated communications provider by the chief officer of an interception agency of a State or Territory:
the designated communications provider; or
an employee of the designated communications provider; or
a contracted service provider of the designated communications provider; or
an employee of a contracted service provider of the designated communications provider;
may disclose technical assistance request information that relates to the request to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.
If:
technical assistance notice information is disclosed under subsection (12B); or
technical assistance request information is disclosed under subsection (12C);
to an officer or employee of an authority that is the State or Territory inspecting authority in relation to an interception agency, the officer or employee may disclose the information in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.
Authorised disclosures—statistics
A person who is:
a designated communications provider; or
an employee of a designated communications provider; or
a contracted service provider of a designated communications provider; or
an employee of a contracted service provider of a designated communications provider;
may, in the person’s capacity as such a provider or employee, disclose:
the total number of technical assistance notices given to the provider during a period of at least 6 months; or
the total number of technical capability notices given to the provider during a period of at least 6 months; or
the total number of technical assistance requests given to the provider during a period of at least 6 months.
This subsection authorises the disclosure of aggregate statistical information. That information cannot be broken down:
by agency; or
in any other way.
Other authorised disclosures
If a technical assistance notice has been given to a designated communications provider by the Director‑General of Security, the Director‑General of Security may, if requested to do so by the designated communications provider, authorise:
the designated communications provider; or
a specified employee of the designated communications provider; or
a specified contracted service provider of the designated communications provider; or
a specified employee of a contracted service provider of the designated communications provider;
to disclose, in accordance with the conditions specified in the authorisation, specified technical assistance notice information that relates to the notice.
If a technical assistance notice has been given to a designated communications provider by the chief officer of an interception agency, the chief officer may, if requested to do so by the designated communications provider, authorise:
the designated communications provider; or
a specified employee of the designated communications provider; or
a specified contracted service provider of the designated communications provider; or
a specified employee of a contracted service provider of the designated communications provider;
to disclose, in accordance with the conditions specified in the authorisation, specified technical assistance notice information that relates to the notice.
If a technical capability notice has been given to a designated communications provider, the Attorney‑General may, if requested to do so by the designated communications provider, authorise:
the designated communications provider; or
a specified employee of the designated communications provider; or
a specified contracted service provider of the designated communications provider; or
a specified employee of a contracted service provider of the designated communications provider;
to disclose, in accordance with the conditions specified in the authorisation, specified technical capability notice information that relates to the notice.
An authorisation under subsection (14), (15) or (16) must be in writing.
The statute text is free to read above. View subscription options to unlock the case-law research tools for each provision.