Updated as at 28/3/2001.
IMPORTANT - Please note that since this Fact Sheet was last updated a number of significant legislative changes have been made, eg the Cyberspace Crime Act 2001 (Cth). An update incorporating these changes is being prepared. Until the update is posted, the content below should be used as a general guide only. If you have any questions on this topic, please contact Oz NetLaw via the Contact Us link on this site.
1. Application of Commonwealth, State and Territory Laws
Under the Australian system of Government, all Australian States and Territories have a general power to enact criminal laws to operate within their own borders. The Commonwealth is limited to enacting criminal laws which fall within one of its enumerated heads of constitutional power, although within these heads of power it can enact law which is applicable across the country and extraterritorially. The Commonwealth’s constitutional power to enact laws with respect to
"telephonic, telegraphic and other like services" is of particular relevance in the context of cyberspace crime.
In many areas, including cyberspace crime, Commonwealth and State and Territory offences exist and operate side by side, with the State and Territory offences applying generally to wrongful conduct within that jurisdiction and the Commonwealth offences targeting particular aspects (for example, offences involving computers owned or leased by the Commonwealth, and offences involving a telecommunications carriage service).
What follows below is an overview of some of the laws enacted by the Commonwealth and the States and Territories which are relevant to the use of computers and the Internet. It should be noted, however, that changes to the existing law are pending. For example, provisions of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth) which commence on 24 May 2001 will impact upon the current law.
(1)
2. Unlawful Access and Computer Trespass
(a) Hacking and cracking
"Hacker" and "cracker" are terms which are used to describe people who intentionally seek to access computer systems or networks with dishonest intentions.
(2) A cracker may access a system with destructive or malicious intentions, such as to alter data or to spread a virus, whereas a hacker is generally motivated by curiosity.
(3)
Hackers and crackers may be criminally liable if they access, or access and continue to examine, certain data.
(4) Cracking may also involve damage to data and fraud.
(b) Unauthorised access and computer trespass offences
Both the Commonwealth, and the States and Territories
(5) have enacted laws in relation to computer trespass and the unauthorised access of data.
(6) Most of the relevant provisions in the Commonwealth Act relate specifically to Commonwealth data, that is, data which is stored in a Commonwealth computer or data which is stored on behalf of the Commonwealth in a computer that is not a Commonwealth computer.
(7)
For example, the Commonwealth Act provides that a person who intentionally and without authority obtains access to Commonwealth data is guilty of an offence.
(8) The relevant Victorian Act states that a person must not gain access to, or enter, a computer system or part of a computer system without lawful authority to do so.
(9) In Tasmania, a person who, without lawful excuse, intentionally gains access to a computer system, system of computers, or any part of a system of computers, is guilty of a crime.
(10)
The Commonwealth Act also provides that a person who intentionally and without authority obtains access to Commonwealth data, being data that the person knows or ought reasonably to know relates to:
* the security, defence or international relations of Australia;
* confidential sources of information relating to the enforcement of Australian criminal law;
* the enforcement of an Australian law;
* the protection of public safety;
* the personal affairs of any person;
* trade secrets;
* records of a financial institution; or
* commercial information, the disclosure of which could cause an advantage or disadvantage to any person;
is guilty of an offence.
(11) Under the Act it is also an offence for a person who has intentionally and without authority obtained access to Commonwealth data to
continue to examine the data if they know or ought reasonably to have known that it relates to any one of the above categories of information.
(12)
A person who by means of a Commonwealth facility (for example, part of the infrastructure of a telecommunications network) or by a facility provided by a carrier
(13) intentionally and without authority obtains access to data stored in a computer is also guilty of an offence under the Commonwealth Act.
(14)
3. Damaging Data and Impeding Access to Computers
A variety of Commonwealth, State and Territory laws exist which make it an offence for a person to alter or impair information stored on a computer, or to impede access to a computer.
(15)
For example, the New South Wales Crimes Act provides that a person who intentionally and without authority or lawful excuse destroys, erases or alters data stored, or inserts data into a computer, or interferes with, or interrupts or obstructs the lawful use of a computer is liable to imprisonment or a fine, or both.
(16)
Similarly, the Commonwealth Act provides that a person who intentionally and without authority or lawful excuse:
* destroys, erases or alters data stored in, or inserts data into, a Commonwealth computer;
* interferes with, or interrupts or obstructs the lawful use of, a Commonwealth computer;
* destroys, erases, alters or adds to data stored on behalf of the Commonwealth in a computer that is not a Commonwealth computer; or
* impedes or prevents access to, or impairs the usefulness or effectiveness of, data stored in a Commonwealth computer or data stored on behalf of the Commonwealth in a computer that is not a Commonwealth computer
is guilty of an offence, the penalty for which is imprisonment for 10 years.
(17)
The Commonwealth Act further provides that it is an offence for a person who, by means of a facility operated or provided by the Commonwealth or by a carrier, intentionally and without lawful authority
(18) or excuse:
* destroys, erases or alters data stored in, or inserts data into, a computer;
* interferes with, or interrupts or obstructs the lawful use of, a computer; or
* impedes or prevents access to, or impairs the usefulness or effectiveness of, data stored in a computer
is guilty of an offence. The penalty for damaging data in Commonwealth and other computers by means of a Commonwealth facility is also imprisonment for 10 years.
(19)
4. Theft of Data
The question of whether there can be theft of computer data remains unsettled. An intruder into a computer system who dishonestly appropriates information is likely to be charged with unauthorised access or computer trespass, rather than theft.
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth) (the relevant sections of which commence on 24 May 2001) provides that a person is guilty of theft if they dishonestly appropriate property belonging to another with the intention of permanently depriving that person of the property, and the property belongs to a Commonwealth entity.
(20)
Property is defined by the Code to include "intangible property". It remains to be seen whether computer data will fall within this definition.
5. Computer Fraud
Fraud in the off-line environment generally involves deception through the use of a tangible object, such as a created document. In cyberspace, however, fraud may be committed through the use of digital technology without the need for any such object.
The Commonwealth Act provides that a person who with intent to defraud any person and without authority obtains access to Commonwealth data is guilty of an offence and is liable to a penalty of imprisonment for two years.
(21) The Act also states that a person who by means of a facility operated or provided by the Commonwealth or by a carrier, with intent to defraud any person and without authority obtains access to data stored in a computer, is guilty of an offence.
(22)
Laws dealing specifically with computer fraud have also been established under State legislation.(23) The Tasmanian Criminal Code, for example, states that a person who, uses a computer with intent to defraud, is guilty of the crime of computer-related fraud.
(24)
6. Cyber-Stalking and Harassment
Stalking is commonly defined as the act of frequently giving unwanted attention to a person with the intention of intimidating them or causing them to fear for their safety or the safety of others. Cyber-stalking is commonly executed using electronic mail.
It is an offence for a person to knowingly or recklessly use a carriage service supplied by a carrier to menace or harass another person or to use a carriage service supplied by a carrier in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive.
(25)
Any conduct which could reasonably be likely to arouse an apprehension of fear in the victim is an offence.
(26) Accordingly, sending email or posting messages on interactive internet forums such as bulletin boards or chat rooms may constitute stalking.
An intervention order is the most common remedy for stalking. Breach of an intervention order may result in imprisonment.
7. Attempt, Incitement, Complicity and Common Purpose
Attempt, Incitement and Complicity and Common Purpose are offences which are relevant to cyberspace crime.
(a) Attempt
In all Australian jurisdictions there are laws which establish that attempts to commit certain offences are themselves offences.
(27) To be guilty of an attempt, the offender must intend to commit the offence and take steps which go beyond mere preparation in pursuance of their intention.
An offender may be criminally liable for an attempt even though circumstances unknown to them make it impossible for them to complete the offence.
The penalty which applies to a person for attempt differs between jurisdictions.
(b) Incitement
A person who incites another person to commit an offence may themselves be guilty of a criminal offence, even if the offence incited is not committed. Inciting may involve urging, requesting, authorising or encouraging the commission of an offence.
For example, under the Commonwealth Criminal Code a person who urges the commission of an offence is guilty of incitement if the person intends that the offence incited be committed.
(28) The person may be guilty even if the offence incited is impossible.
Any mode of encouragement can be used to incite an offence. Accordingly, a person may, for example, incite another person to commit an offence by publishing a notice on a site that urges, requests or encourages others to commit a crime or doing the same by email.
The maximum penalty for incitement depends upon the maximum penalty for the offence incited. The precise elements of the offence of incitement, and the applicable penalties, vary between jurisdictions.
(29)
(c) Complicity and Common Purpose
In all Australian jurisdictions the law provides that a person who directly or indirectly participates in the commission of an offence, with the requisite mental element and without a relevant defence, is guilty of that offence.
(30)
The Australian Capital Territory Crimes Act, for example, states that a person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of an offence shall be deemed to have committed that offence and shall be punishable, on conviction, accordingly.
(31)
A person’s presence at the scene while an offence is being committed may amount to aiding or abetting if, in the circumstances of the case, that person’s conduct encourages or assists the principal offender to commit the offence.
8. Contempt
The law of contempt of court is a set of rules which have been developed whereby persons who engage in conduct tending to interfere with the administration of justice may be subjected to legal sanctions.
Numerous types of conduct may attract liability for contempt. The form of contempt known as "sub judice" aims to protect a person’s right to a fair trial. Accordingly, a person may be found in contempt of court if they publish (online or otherwise) prejudicial material concerning matters which are, or will be, before the court. This restriction on free speech applies throughout the period in which a case is in the court system. In a criminal case, this period is usually from the time the accused is arrested, until a not guilty verdict has been delivered or all possible avenues of appeal have been exhausted.
Information which is considered to be prejudicial includes details of prior convictions, material or statements which create an adverse impression of the accused, statements about the guilt or innocence of the accused, and in some cases, the identification of the accused.
A limited form of defence to contempt exists which recognises the need for ongoing public discussion about matters of public concern. If material is published in the context of a continuing public debate about an issue, and the risk of prejudice resulting from the material is an incidental and unintended by-product, then publication may not be contemptuous.
9. Possession of child pornography
Possession of child pornography cached on a personal computer as a result of an internet browsing session may constitute an offence under State laws.
For example, in NSW, a person who has in his or her possession any child pornography is guilty of an offence which carries a maximum penalty of $11,000 or imprisonment for 2 years or both.
(32) Child pornography is material (includes any form of recording from which a visual image, including a computer generated image, can be produced) that is refused classification or would, if classified, be refused classification by the Office of Film and Literature Classification Board on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16.
Property in a person’s custody or knowingly in the custody of another person is considered to be possession.
(33)
Other relevant Fact Sheets:PrivacyTelecommunications (long version)Sources of Law Crimes Act 1914(Cth)
Crimes Act 1900 (NSW)
Crimes Act 1958 (Vic)
Crimes Act 1900 (ACT)
Summary Offences Act 1953 (SA)
Summary Offences Act 1966 (Vic)
Criminal Law Consolidation Act 1935 (SA)
Broadcasting Service Act 1992 (Cth)
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth)
Criminal Code Act 1913 (WA)
Criminal Code 1983 (NT)
Criminal Code 1924 (Tas)
Criminal Code 1995 (Qld) End Notes1. No 137, 2000
2.a> see: Akindemowo, Olujoke (1999) "Computer Crime. Telecommunications and Internet Abuse". Chapter 5, Information Technology Law in Australia, Law Book Company
3.a> see: Akindemowo, Olujoke (1999) "Computer Crime. Telecommunications and Internet Abuse". Chapter 5, Information Technology Law in Australia, Law Book Company
4. eg.
Crimes Act 1914(Cth) , sections 76B (1) and (3)
5. with the exception of the Northern Territory
6. Crimes Act 1914(Cth) , section 76B;
Summary Offences Act 1966 (Vic), section 9;
Crimes Act (NSW), section 309;
Summary Offences Act 1953 (SA), section 44;
Crimes Act 1900 (ACT), section 135J;
Criminal Code Act 1913 (WA), section 440A;
Criminal Code 1995 (Qld), section 408D(i);
Criminal Code 1924 (Tas), section 257D
7. Crimes Act 1914(Cth) , Part VIA
8. section 76B (1)
9. Summary Offences Act 1966 (Vic), section 9A
10. Criminal Code, section 257D
11. section 76B (2) (b)(i) to (viii)
12. section 76B (3)
13. A service for carrying communications by means of guided and/or unguided electromagnetic energy
14. section 76D (1). See also sections 76D (2) and (3)
15. Summary Offences Act 1966 (Vic), section 9;
Crimes Act 1900 (NSW), section 310;
Summary Offences Act 1953 (SA), section 44;
Crimes Act 1900 (ACT), section 135K;
Criminal Code 1924 (Tas), section 257C
16. section 310
17. section 76C
18. the words "or lawful excuse" will be deleted from this provision and section 76C following the commencement of the
Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000
19. section 76E
20. After commencement reference will be to section 131.1 of the
Commonwealth Criminal Code
21. Crimes Act 1914 (Cth), section 76B (2) (a)
22. Crimes Act 1914 (Cth), section 76D (2) (a)
23. eg
Crimes Act 1900 (NSW), section 390. See also
Crimes Act 1958 (Vic), Part 1 Div 2;
Crimes Act 1900 (NSW), Part 4 Div 1;
Criminal Law Consolidation Act 1935 (SA), section 184;
Crimes Act 1900 (ACT), Part 4;
Criminal Code Act 1913 (WA), Part 6;
Criminal Code (Qld) Part 6 Div 1;
Criminal Code 1983 (NT), Part 7 in relation to fraud generally
24. section 257B
25. Crimes Act 1914 (Cth), section 85ZE. Note that this provision does not apply to Internet content which is regulated under the
Broadcasting Service Act 1992 (Cth) and other offences of specific application such as those governing pornography
26. See
Crimes Act 1958 (Vic), section 21A (2) (b);
Crimes Act 1900 (NSW), section 562AB;
Criminal Law Consolidation Act 1935 (SA), section 19AA;
Crimes Act 1900 (ACT), section 34A;
Criminal Code 1995 (Qld), section 359A;
Criminal Code 1913 (WA), section 338D;
Criminal Code 1924 (Tas), section 192;
Criminal Code 1983 (NT), section 189
27. Section 11.1
Criminal Code (Cth);
Crimes Act 1900 (ACT), section 347;
Crimes Act 1900 (NSW), section 344A;
Criminal Code (NT), sections 277-279;
Criminal Code (Qld), sections 535-538;
Criminal Law Consolidation Act 1935 (SA), sections 270a-270ab;
Criminal Code (Tas), section 299;
Crimes Act 1958 (Vic), sections 321M, 321O-P,
Criminal Code (WA), sections 552, 554-555A
28. section 11.4
29. see:
Criminal Code (Cth), section 11.4;
Crimes Act 1914 (Cth), section 7A (a);
Crimes Act 1900 (ACT), section 348;
Criminal Code (Tas), section 298;
Crimes Act 1958 (Vic), sections 321G-L;
Criminal Code (WA), sections 553, 555A. The common law offence has been retained in New South Wales and South Australia
30. Crimes Act 1914 (Cth) section 5;
Crimes Act 1900 (NSW), section 351;
Criminal Law Consolidation Act 1935 (SA), section 269;
Crimes Act 1958 (Vic), sections 323, 324;
Crimes Act 1900 (ACT), section 345;
Criminal Code (NT) section 12;
Criminal Code (Qld), section 7;
Criminal Code (WA), section 7;
Criminal Code (Tas), section 3
31. Section 11.2
Criminal Code (Cth)
32. Section 578B
Crimes Act 1900 NSW
33. Section 7
Crimes Act 1900 NSW