Page 5320 - Week 17 - Thursday, 13 December 1990
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difficulty in proving the offence in the sensitive data category. We would have to prove the knowledge and criminal intent to get at sensitive data, as compared with data.
If these are hackers and fishers, they presumably do not know what they are seeking. It requires a very high standard of proof. It was the view of the committee, and I must say that I have accepted it. I am not prepared to say that I will go to the wall on all of this. It is simply that I believe that the Government should, if it is not prepared to accept the recommendations of that august body, have very good reasons for it. My Law Office and my advisers and I could not divine any.
The categories of sensitive data in the Commonwealth and New South Wales legislation, and as proposed in Mr Connolly's amendment, are so extensive that they cover just about all the types of information found on the computer. The view that was put to us was that there is no practical distinction between the offences proposed in Mr Connolly's section 153(1) and section 153(3). If one aim of those screening committees is to simplify as much as possible and reduce the bulk of our laws, that, presumably, if I can speculate a little, may have been one of their motivations. On perusal of it, it seems that, if one is in court on either side of the bar table, there does not seem really, given the breadth of subsection (3) of section 153 in the New South Wales legislation, to be much reason for attempting to give a comprehensive statement.
The committee was quite certain that an objective mental element was undesirable in a criminal offence. I realise that I am compromised to some extent by the inclusion of the recklessness test. That is not as objective as those dreadful words, that many law reformers want to see moved out, "know" or "ought reasonably to know". It is the words "ought reasonably to know" in subsection (3) that seem to have attracted the attention of the consultative committee. The words "ought reasonably to know" mean that the judge, or the court and the jury, or what-have-you, can substitute their tests and do away with the subjective tests of criminality. I think that is a view that most progressive lawyers now share.
It is our view that the nature of the data in the victim computer is more appropriately a matter for the court to take into account when sentencing an offender. We believe that it should be for the court to take evidence as to what the data was and deal with it that way. Hence, the simple computer trespass offence in the proposed section 153 of the Government Bill carries the higher penalty of two years gaol.
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