Page 5319 - Week 17 - Thursday, 13 December 1990
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Mr Connolly mentioned the fact that we have moved to include recklessness as one of the elements in an offence. So as to be not too technical, the test we have adopted is to require the requisite intent. As the lawyers in this house know, there may well be a difference between the subjective and objective test; but when you get to recklessness, as the great debate goes, you get to the thin line between difficulties of proof. I can certainly put to members a scenario of someone who has the requisite intent to get into a system that may be remarkably sensitive in itself - a social security or taxation data bank containing privacy details or, more importantly, pension records that have to be right every fortnight, or else people starve. I believe that the community may well admit that we need to have a recklessness test for that person who, though having a requisite intent to trespass - because all offences start with that initial trespass - moves on to cause immense damage and hardship by the mere fact of blundering through a system, as my colleague, Dr Kinloch, mentioned. This is particularly so with systems that pay moneys.
It is more than their incompetence or ineptitude, or even negligence. It is our view that computer bases should be protected from recklessness as well as intentional damage. I am encouraged in that view because it is the practice of our Government - and I trust that it will be the practice of all governments who may follow us in the long term - to refer all these criminal amendment proposals to the Criminal Law Consultative Committee, which is a very august committee that includes judges and the rest.
These provisions have gone over that hurdle. The fact is that Mr Connolly may be amused to know that when we sent the Bill to the Criminal Law Consultative Committee it had in it his provision from the New South Wales Act. In fact, our Bill, when I first saw it, looked like Mr Connolly's amendment. It is on the advice of that committee - which is chaired by Justice Elizabeth Evatt and contains Mr Justice Higgins of the Supreme Court of the ACT and other eminent lawyers including the chair of our ACT Law Reform Committee, the former judge, the Honourable John Kelly, the Chief Magistrate, and senior and eminent legal advisers to governments - that we have not proceeded to adopt the style of the New South Wales Act. That will require some explanation. (Quorum formed)
In fact, as I said, our Bill before it went to the Criminal Law Consultative Committee originally made the distinction, as does Mr Connolly's amendment from the New South Wales Act, between simple unauthorised access and access to sensitive data; that is, the law chased you differently if you had had just simple unauthorised access or had access to sensitive data. The reasoning behind the advice given, as I understand it, from the Criminal Law Consultative Committee was that a straightforward computer trespass offence was preferred. The view was that there would be
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