Page 5316 - Week 17 - Thursday, 13 December 1990
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dealing with material. We then go back to uniformity with our 10-year penalty offence for actively damaging or introducing the virus. I will be moving that specific amendment.
The other point that I would like to raise by way of query to the Attorney - I think there may well be good reason for this, and I am not proposing an amendment - is why we have introduced the additional concept of recklessness in the ACT legislation when that is not present in either the Commonwealth legislation or the New South Wales legislation. I might just say that again because Dr Kinloch was speaking to the Attorney. I am raising a question as to why in the ACT legislation we have introduced the concept of recklessness in the provision relating to damage to the computer.
I note that the New South Wales provision merely covers intentional destruction or interference, as does the Commonwealth. Again, we have, in the two comparable jurisdictions, an offence limited to intentional damage to the computer or the data. Here we have introduced the concept of recklessness. I am wondering whether that has been done under advisement because of problems that have been identified with the existing provisions in New South Wales or the Commonwealth and, perhaps, what degree of mental element would be intended to apply to this reckless use of the computer.
The courts, as the Attorney would be aware, have laboured over recent years to come up with an adequate definition of recklessness. We are getting to the point where one can be reckless if one should reasonably have foreseen that harmful consequences would follow. As a person who is not computer literate, I am well aware that if I am given access to a computer there is a rather high likelihood that I am going to muck something up and drop something out. I am just wondering whether we are heading into dangerous grounds by introducing the concept of recklessness. I will hear what the Attorney has to say in response to that because it may well be that the law officers in other States, or here, have identified a real failure in the New South Wales and Commonwealth provisions. It does seem that in this area the introduction of recklessness, or an element of recklessness, may not necessarily be justified. I will await the Attorney's views on that.
DR KINLOCH (11.42): I appreciated Mr Connolly's exposition. I am not wanting to sound computer literate either; but I would be terrified at someone getting into one's computer, not with any determination to commit a crime but merely to muck it up without knowing what they were doing. Whether that is reckless or not, or ignorance, I am not sure. The dilemma you raise is a considerable one. I am not a lawyer and I cannot possibly comment on the technical and fascinating areas that Mr Connolly has talked about. I would rather go back now to look at the Bill in general and make some general points about it, not at the level of detailed law.
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