Crimes (Property Damage and Computer Offences) Act 2003

i Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 2 3. Principal Act 2 PART 2—AMENDMENTS TO THE CRIMES ACT 1958 3 4. New section 201A inserted 3 201A. Intentionally or recklessly causing a bushfire 3 5. Insertion of new Subdivision (6) in Division 3 of Part I 4 (6) Computer Offences 4 247A. Interpretation 4 247B. Unauthorised access, modification or impairment with intent to commit serious offence 7 247C. Unauthorised modification of data to cause impairment 8 247D. Unauthorised impairment of electronic communication 9 247E. Possession of data with intent to commit serious computer offence 9 247F. Producing, supplying or obtaining data with intent to commit serious computer offence 10 247G. Unauthorised access to or modification of restricted data 11 247H. Unauthorised impairment of data held in computer disk, credit card or other device 11 247I. Extra-territorial operation of offences 12 6. Insertion of new Subdivision (7) in Division 3 of Part I 12 (7) Sabotage 12 247J. Interpretation 12 247K. Sabotage 14 247L. Threats to sabotage 15 7. New sections 428 and 429 inserted 16 428. Alternative verdict for charges of unauthorised modification of data to cause impairment 16 429. Alternative verdict for charges of unauthorised impairment of electronic communication 16 -- 1 of 22 -- Section Page ii 8. Consequential amendments 17 9. Transitional provision 17 597. Transitional provision—Crimes (Property Damage and Computer Offences) Act 2003 17 PART 3—AMENDMENTS TO THE BAIL ACT 1977 AND OTHER CONSEQUENTIAL AMENDMENTS 18 10. Amendment to the Bail Act 1977 18 11. Transitional provision—amendment to the Bail Act 1977 18 12. Consequential amendment to the Magistrates' Court Act 1989 18 37A. Computer Offences 18 13. Consequential amendment to the Sentencing Act 1991 18 14. Transitional provision—consequential amendment to the Sentencing Act 1991 19 127. Transitional provision—Crimes (Property Damage and Computer Offences) Act 2003 19 15. Repeal of section 9A of the Summary Offences Act 1966 19 ═══════════════ ENDNOTES 20 -- 2 of 22 -- 1 Crimes (Property Damage and Computer Offences) Act 2003 † [Assented to 6 May 2003] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The main purpose of this Act is— (a) to amend the Crimes Act 1958 to create offences relating to bushfires, computers and sabotage; and Victoria No. 10 of 2003 -- 3 of 22 -- Part 1—Preliminary Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 2 (b) to amend the Bail Act 1977 to include the offence of arson causing death as an offence in respect of which there is a presumption against bail. 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. 3. Principal Act In this Act, the Crimes Act 1958 is called the Principal Act. __________________ s. 2 See: Act No. 6231/1958. Reprint No. 16 as at 1 January 2002 and amending Act Nos 45/2001, 11/2002, 16/2002 and 35/2002. LawToday: www.dms. dpc.vic. gov.au -- 4 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 3 PART 2—AMENDMENTS TO THE CRIMES ACT 1958 4. New section 201A inserted After section 201 of the Principal Act insert— '201A. Intentionally or recklessly causing a bushfire (1) A person who— (a) intentionally or recklessly causes a fire; and (b) is reckless as to the spread of the fire to vegetation on property belonging to another— is guilty of an offence and liable to level 4 imprisonment (15 years maximum). (2) For the purposes of sub-section (1)(b), circumstances in which a person is not to be taken to be reckless as to the spread of a fire include the following— (a) the person caused the fire in the course of carrying out a fire prevention, fire suppression or other land management activity; and (b) at the time the activity was carried out— (i) there was in force a provision made by or under an Act or by a Code of Practice approved under an Act, that regulated or otherwise applied to the carrying out of the activity and the person in carrying out that activity acted in accordance with the provision; and s. 4 -- 5 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 4 (ii) the person believed that his or her conduct in carrying out the activity was justified having regard to all of the circumstances. (3) For the purposes of sub-section (2)(b)(ii) it is sufficient that a person honestly believed that the conduct was justified. (4) In this section— (a) a reference to causing a fire includes— (i) lighting a fire; (ii) maintaining a fire; (iii) failing to contain a fire, except where the fire was lit by another person or the fire is beyond the control of the person who lit the fire; (b) "spread of the fire" means spread of the fire beyond the capacity of the person who caused the fire to extinguish it.'. 5. Insertion of new Subdivision (6) in Division 3 of Part I After Subdivision (5) of Division 3 of Part I of the Principal Act insert— '(6) Computer Offences 247A. Interpretation (1) In this Subdivision— "access", in relation to data held in a computer, means— s. 5 -- 6 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 5 (a) the display of the data by the computer or any other output of the data from the computer; or (b) the copying or moving of the data to any other place in the computer or to a data storage device; or (c) in the case of a program, the execution of the program; "data" includes— (a) information in any form; and (b) any program or part of a program; "data held in a computer" includes— (a) data entered or copied into the computer; and (b) data held in any removable data storage device for the time being in the computer; and (c) data held in a data storage device on a computer network of which the computer forms part; "data storage device" means any thing (for example, a disk or file server) containing or designed to contain data for use by a computer; "electronic communication" means a communication of information in any form by means of guided or unguided electromagnetic energy; "impairment", in relation to electronic communication to or from a computer, includes— (a) the prevention of any such communication; and s. 5 -- 7 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 6 (b) the impairment of any such communication on an electronic link or network used by the computer— but does not include a mere interception of any such communication; "modification", in relation to data held in a computer, means— (a) the alteration or removal of the data; or (b) an addition to the data; "serious computer offence" means— (a) an offence against section 247B, 247C or 247D; or (b) conduct in another jurisdiction that is an offence in that jurisdiction and that would constitute an offence against section 247B, 247C or 247D if the conduct occurred in Victoria; "unauthorised computer function" means any of the following— (a) any unauthorised access to data held in a computer; or (b) any unauthorised modification of data held in a computer; or (c) any unauthorised impairment of electronic communication to or from a computer. s. 5 -- 8 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 7 (2) In this Subdivision, a reference to access to data, modification of data or impairment of electronic communication is limited to access, modification or impairment caused (whether directly or indirectly) by the execution of a function of a computer. (3) For the purposes of this Subdivision, access to data, modification of data or impairment of electronic communication by a person— (a) is unauthorised if the person is not entitled to cause that access, modification or impairment; (b) is not unauthorised merely because the person has an ulterior purpose for that action. (4) For the purposes of an offence against this Subdivision, a person causes an unauthorised computer function if the person's conduct substantially contributes to the unauthorised computer function. 247B. Unauthorised access, modification or impairment with intent to commit serious offence (1) A person who causes any unauthorised computer function— (a) knowing it is unauthorised; and (b) with the intention of committing a serious offence or facilitating the commission of a serious offence (whether by the person or by another person)— is guilty of an offence and liable to the same maximum penalty as applies to the commission of the serious offence in Victoria. s. 5 -- 9 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 8 (2) In this section "serious offence" means— (a) an offence in Victoria punishable on conviction for a first offence with imprisonment for a term of 5 years or more; or (b) an offence in any other jurisdiction that would be punishable on conviction for a first offence with imprisonment for a term of 5 years or more if committed in Victoria. (3) A person may be found guilty of an offence against this section— (a) even if committing the serious offence is impossible; or (b) whether the serious offence is to be committed at the time of the unauthorised conduct or at a later time. (4) It is not an offence to attempt to commit an offence against this section. 247C. Unauthorised modification of data to cause impairment A person who— (a) causes any unauthorised modification of data held in a computer; and (b) knows that the modification is unauthorised; and (c) intends by the modification to impair access to, or to impair the reliability, security or operation of, any data held in a computer or is reckless as to any such impairment— is guilty of an offence and liable to level 5 imprisonment (10 years maximum). s. 5 -- 10 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 9 247D. Unauthorised impairment of electronic communication A person who— (a) causes any unauthorised impairment of electronic communication to or from a computer; and (b) knows that the impairment is unauthorised; and (c) intends to impair electronic communication to or from the computer or is reckless as to any such impairment— is guilty of an offence and liable to level 5 imprisonment (10 years maximum). 247E. Possession of data with intent to commit serious computer offence (1) A person who is in possession or control of data— (a) with the intention of committing a serious computer offence; or (b) with the intention of facilitating the commission of a serious computer offence (whether by the person or by another person)— is guilty of an offence and liable to imprisonment for a term not exceeding 3 years. (2) In this section, a reference to a person having possession or control of data includes a reference to a person— (a) having possession of a computer or data storage device that holds or contains the data; and s. 5 -- 11 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 10 (b) having possession of a document in which the data is recorded; and (c) having control of data held in a computer that is in the possession of another person (whether the computer is in Victoria or outside Victoria). (3) A person may be found guilty of an offence against this section even if committing the serious computer offence is impossible. (4) It is not an offence to attempt to commit an offence against this section. 247F. Producing, supplying or obtaining data with intent to commit serious computer offence (1) A person who produces, supplies or obtains data— (a) with the intention of committing a serious computer offence; or (b) with the intention of facilitating the commission of a serious computer offence (whether by the person or by another person)— is guilty of an offence and liable to imprisonment for a term not exceeding 3 years. (2) In this section, a reference to a person producing, supplying or obtaining data includes a reference to the person— (a) producing, supplying or obtaining data held in a computer or contained in a data storage device; and (b) producing, supplying or obtaining a document in which the data is recorded. s. 5 -- 12 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 11 (3) A person may be found guilty of an offence against this section even if committing the serious computer offence is impossible. 247G. Unauthorised access to or modification of restricted data (1) A person who— (a) causes any unauthorised access to or modification of restricted data held in a computer; and (b) knows that the access or modification is unauthorised; and (c) intends to cause the access or modification— is guilty of an offence and liable to level 7 imprisonment (2 years maximum). (2) An offence against this section is a summary offence. (3) In this section "restricted data" means data held in a computer to which access is restricted by an access control system associated with a function of the computer. 247H. Unauthorised impairment of data held in computer disk, credit card or other device (1) A person who— (a) causes any unauthorised impairment of the reliability, security or operation of data held on a computer disk, credit card or other device used to store data by electronic means; and (b) knows that the impairment is unauthorised; and s. 5 -- 13 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 12 (c) intends to cause the impairment— is guilty of an offence and liable to level 7 imprisonment (2 years maximum). (2) An offence against this section is a summary offence. (3) For the purposes of this section, impairment of reliability, security or operation of data is unauthorised if the person is not entitled to cause the impairment. 247I. Extra-territorial operation of offences (1) It is immaterial that some or all of the conduct constituting an offence against this Subdivision occurred outside Victoria, so long as the computer or device used to store data by electronic means affected by the conduct was in Victoria at the time at which the conduct occurred. (2) It is immaterial that the computer or device used to store data by electronic means affected by some or all of the conduct constituting an offence against this Subdivision was outside Victoria at the time the conduct occurred, so long as that conduct occurred in Victoria.'. 6. Insertion of new Subdivision (7) in Division 3 of Part I At the end of Division 3 of Part I of the Principal Act insert— '(7) Sabotage 247J. Interpretation (1) In this Subdivision— "property offence" means— s. 6 -- 14 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 13 (a) an offence against Subdivision (1) of this Division or Division 4; or (b) conduct in another jurisdiction that is an offence in that jurisdiction and that would constitute an offence against Subdivision (1) of this Division or Division 4 if the conduct occurred in Victoria; "public facility" means any of the following (whether publicly or privately owned)— (a) a government facility, including premises used by government employees in connection with official duties; (b) a public infrastructure facility, including a facility providing or distributing water, sewerage, energy, fuel, communication or other services to, or for the benefit of, the public; (c) a public information system, including a system used to generate, send, receive, store or otherwise process electronic communications; (d) a public transport facility, including a conveyance used to transport people or goods; s. 6 -- 15 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 14 (e) a public place, including any premises, land or water open to the public; "unauthorised computer function" has the same meaning as in Subdivision (6). (2) In this Subdivision "damage", in relation to a public facility, means— (a) cause damage to the facility or any part of the facility; or (b) cause disruption to the use or operation of the facility. (3) For the purposes of an offence against this Subdivision, a person causes any damage or disruption if the person's conduct substantially contributes to the damage or disruption. 247K. Sabotage A person who— (a) damages a public facility by committing a property offence or by causing an unauthorised computer function; and (b) intends to cause— (i) major disruption to government functions; or (ii) major disruption to the use of services by the public; or (iii) major economic loss— is guilty of an offence and liable to level 2 imprisonment (25 years maximum). s. 6 -- 16 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 15 247L. Threats to sabotage (1) A person who— (a) makes to another person a threat to damage a public facility by committing a property offence or by causing an unauthorised computer function; and (b) intends that person to fear that the threat will be carried out and will cause— (i) major disruption to government functions; or (ii) major disruption to the use of services by the public; or (iii) major economic loss— is guilty of an offence and liable to level 4 imprisonment (15 years maximum). (2) In the prosecution of an offence against this section it is not necessary to prove that the person threatened actually feared that the threat would be carried out. (3) For the purposes of this section— (a) a threat may be made by any conduct and may be explicit or implicit, conditional or unconditional; and (b) a threat to a person includes a threat to a group of persons; and (c) fear that a threat will be carried out includes apprehension that it will be carried out.'. s. 6 -- 17 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 16 7. New sections 428 and 429 inserted After section 427 of the Principal Act insert— "428. Alternative verdict for charges of unauthorised modification of data to cause impairment If on the trial of a person charged with an offence against section 247C the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of— (a) an offence under section 197(1); or (b) an offence under section 247D— the jury may acquit the accused of the offence charged and find him or her guilty of whichever of those offences they are satisfied that he or she is guilty and he or she is liable to punishment accordingly. 429. Alternative verdict for charges of unauthorised impairment of electronic communication If on the trial of a person charged with an offence against section 247D the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of— (a) an offence under section 197(1); or (b) an offence under section 247C— the jury may acquit the accused of the offence charged and find him or her guilty of whichever of those offences they are satisfied that he or she is guilty and he or she is liable to punishment accordingly.". s. 7 -- 18 of 22 -- Part 2—Amendments to the Crimes Act 1958 Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 17 8. Consequential amendments In item 17 of Schedule 8 to the Principal Act— (a) in paragraph (b) for "death)." substitute "death);"; (b) after paragraph (b) insert— " (c) section 201A (intentionally or recklessly causing a bushfire); (d) section 247K (sabotage); (e) section 247L (threats to sabotage).". 9. Transitional provision After section 596 of the Principal Act insert— "597. Transitional provision—Crimes (Property Damage and Computer Offences) Act 2003 (1) The amendments of this Act made by the Crimes (Property Damage and Computer Offences) Act 2003 apply only to offences alleged to have been committed on or after the commencement of that Act. (2) For the purposes of sub-section (1), if an offence is alleged to have been committed between two dates, one before and one after the commencement of the Crimes (Property Damage and Computer Offences) Act 2003, the offence is alleged to have been committed before that commencement.". __________________ s. 8 -- 19 of 22 -- Part 3—Amendments to the Bail Act 1977 and other Consequential Amendments Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 18 PART 3—AMENDMENTS TO THE BAIL ACT 1977 AND OTHER CONSEQUENTIAL AMENDMENTS 10. Amendment to the Bail Act 1977 After section 4(4)(c) of the Bail Act 1977 insert— "(caa) with an offence of arson causing death under section 197A of the Crimes Act 1958; or". 11. Transitional provision—amendment to the Bail Act 1977 After section 34(4) of the Bail Act 1977 insert— "(5) The amendment of section 4(4) made by section 10 of the Crimes (Property Damage and Computer Offences) Act 2003 applies only with respect to a charge for an offence filed on or after the commencement of that Act.". 12. Consequential amendment to the Magistrates' Court Act 1989 After item 37 of Schedule 4 to the Magistrates' Court Act 1989 insert— "37A. Computer Offences (1) Offences under section 247B of the Crimes Act 1958, if the maximum penalty does not exceed level 5 imprisonment. (2) Offences under sections 247E and 247F of the Crimes Act 1958.". 13. Consequential amendment to the Sentencing Act 1991 After clause 5(a)(ii) of Schedule 1 to the Sentencing Act 1991 insert— " (iii) section 201A (intentionally or recklessly causing a bushfire);". s. 10 -- 20 of 22 -- Part 3—Amendments to the Bail Act 1977 and other Consequential Amendments Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 19 14. Transitional provision—consequential amendment to the Sentencing Act 1991 After section 126B of the Sentencing Act 1991 insert— "127. Transitional provision—Crimes (Property Damage and Computer Offences) Act 2003 (1) The amendment of this Act made by section 13 of the Crimes (Property Damage and Computer Offences) Act 2003 applies only to offences alleged to have been committed on or after the commencement of that Act. (2) For the purposes of sub-section (1), if an offence is alleged to have been committed between two dates, one before and one after the commencement of the Crimes (Property Damage and Computer Offences) Act 2003, the offence is alleged to have been committed before that commencement.". 15. Repeal of section 9A of the Summary Offences Act 1966 Section 9A of the Summary Offences Act 1966 is repealed. ═══════════════ s. 14 -- 21 of 22 -- Crimes (Property Damage and Computer Offences) Act 2003 Act No. 10/2003 20 ENDNOTES † Minister's second reading speech— Legislative Council: 27 February 2003 Legislative Assembly: 25 March 2003 The long title for the Bill for this Act was "to amend the Crimes Act 1958 to create offences relating to bushfires, computers and sabotage, to amend the Bail Act 1977 with respect to the granting of bail on a charge of arson causing death, to make consequential amendments to other Acts and for other purposes." Endnotes -- 22 of 22 --