Page 5315 - Week 17 - Thursday, 13 December 1990
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The legislation presently before the Assembly does not do that. Section 153 of the legislation presently before the Assembly merely creates an overall offence of intentionally obtaining access to data. I would have thought that section 154 of our proposed legislation, which deals with damaging computer data, with some amendments to reflect ACT drafting style, is almost a precise copy of section 310 of the New South Wales Act and section 76E of the Commonwealth Act. It is a 10-year penalty offence - the destruction or erasure of data, or the interference with or interruption of the lawful use of a computer, which I understand covers the virus.
We are in the same position as the Commonwealth and New South Wales in relation to that serious level of damage. However, in relation to the lower level offences, all other legislatures have seen fit to create a two-level offence. My proposed section 153(1) covers the mere intrusion; the breaking down of the electronic door. My proposed sections 153(2), 153(3) and 153(4) deal with going beyond that step to use that data or, specifically, address the accessing of particular types of data that are of particular sensitivity - government information, confidential information, information relating to criminal law and so on. Then we go on to the higher level of offence of intentional damage.
I think it is incumbent on the Government, if they are not prepared to accept these amendments, to give a clear explanation as to why they feel that the ACT ought to have a position different to other States. I understand that there is a view that was expressed at a law reform forum that it would be better to leave discretion in the judges here. What the Bill before the house is doing is creating the one offence at the highest level of imprisonment, that is, imprisonment for two years.
As a point of principle the Opposition is wary of that. That is in no way intended to be any reflection on the judiciary; but it is far better, in our view, for the parliaments to lay down levels of seriousness and distinguish between a more serious level of offence and a less serious level of offence rather than to create a single cover-all offence and leave it to judicial discretion. Based on the argument reductio ad absurdum, the Crimes Act could simply say, "One shall not be naughty. Penalty: life imprisonment", and leave it to the judges to distinguish between levels of offence and levels of penalty. It is far better to be specific.
There is also the obvious argument here, that was referred to by the Attorney in the previous debate, of uniformity. Certainly, when one is in an island in New South Wales one should at least have a good reason for departing from the law applying in the surrounding jurisdiction. I think that is doubly so when we look at the Commonwealth legislation which basically adopts the same structure of a six-month penalty offence for the mere obtaining of access, and a two-year penalty offence for going beyond mere access and
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