Page 5314 - Week 17 - Thursday, 13 December 1990
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People may well have gained the impression from that presentation speech that this Bill was the sole legislative provision standing between the good, lawful computer users of the ACT and mayhem at the hands of hackers. In fact, most hacking is done by way of a person gaining access to a computer situated at a remote location. It is done via a modem and telephone lines. As the Commonwealth has legislative jurisdiction in this area, they used that constitutional head of power in amendments to the Crimes Act in 1989 to create a series of offences that are based on the use of a Commonwealth facility; that is, a telephone line to access a computer, damage a computer, damage data, or copy or extract data. By and large, one would expect that the hacker would be dealt with under Commonwealth law. The gap that is left by Commonwealth law concerns the person who physically accesses data in a computer at that present location. The legislation that is before the Assembly - and I am sure the Attorney would acknowledge this - is based on legislation in New South Wales, which itself very closely models the scheme that has been introduced in the Commonwealth.
It is that general scheme that the Opposition looks at to raise its detailed comments. In this in-principle stage, I will outline to the Assembly what the Opposition's concerns are. Essentially, the scheme in the Commonwealth Crimes Act and the New South Wales legislation is to distinguish between levels of offence. The first level of offence is to make it an offence for a person to unlawfully access data in a computer; that is, it creates the offence of, as it were, breaking down the electronic door and getting into the data bank. Interestingly, the offence is at the same level under both the New South Wales legislation and the Commonwealth legislation, namely, that breaking down the barrier and getting into the computer is an offence punishable by six months imprisonment.
Both the Commonwealth and New South Wales legislative models then go on to create the next level of offence. Having broken down the door and got in, it creates an offence of dealing with the data, damaging the data, extracting the data or introducing the virus. That offence, which clearly is more serious because damage is actually done, is dealt with more seriously again in both the Commonwealth Crimes Act and the New South Wales Crimes Act. For the record, I am dealing with sections 76A, 76B and 76C of the Commonwealth Crimes Act and sections 309 and 310 of the New South Wales Crimes Act.
I have not had the opportunity to research the position in other States in Australia. I suspect that the position is the same where State parliaments are addressing the gap left by the Commonwealth legislation - that is, physically accessing a computer as opposed to accessing a computer via the telephone lines. The legislatures are creating a distinction between merely getting in, and getting in and doing some damage.
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