South Australian Numbered Acts South Australian Numbered ActsAfter section 86A insert:
Part 4A—Computer offences
86B—Interpretation
In this Part—
"computer data" includes data in any form in which it may be stored or
processed in a computer (including a computer program or part of a computer
program);
"electronic communication" means the communication of computer data between
computers by means of an electronic communication network;
"electronic communication network" means devices and systems by which computer
data is communicated between computers and includes—
(a) a
link or network that operates wholly or partially by wireless communication;
and
(b) the
world wide web;
"impairment" of electronic communication includes prevention or delay but does
not include interception if the interception does not impair, prevent or delay
the reception, at the intended destination, of the computer data that is being
communicated;
"modification" of computer data includes—
(a)
deletion or removal of the data;
(b) an
alteration of the data;
(c) an
addition to the data;
"possession" of computer data includes possession of the medium or device in
which the computer data is stored;
"serious computer offence" means an offence against section 86E, 86F, 86G or
86H;
"serious offence" means an offence for which a maximum penalty of life
imprisonment or imprisonment for a term of at least 5 years is prescribed;
"use"—a person uses a computer if the person causes the computer to
perform a function.
86C—Meaning of unauthorised access to or modification of computer data
(1) Access to, or
modification of, computer data is unauthorised unless it is done or made by
the owner of the data or some other person who has an authorisation or licence
(express or implied) from the owner of the data to have access or to make the
modification.
(2) A person is to be
regarded as the owner of computer data if—
(a) the
person brought the data into existence or stored the data in the computer for
his or her own purposes; or
(b) the
data was brought into existence or stored in the computer at the request or on
behalf of that person; or
(c) the
person has a proprietary interest in, or possessory rights over, the medium in
which the computer data is stored entitling the person to determine what data
is stored in the medium and in what form.
(3) For the purposes
of an offence against this Part, the onus of establishing that access to, or
modification of, computer data was unauthorised lies on the prosecution.
86D—Meaning of unauthorised impairment of electronic communication
(1) An impairment of
electronic communication is unauthorised unless it is caused by the person who
is entitled to control use of the relevant electronic communication network or
some other person who has an authorisation or licence (express or implied)
from the person who is entitled to control use of the relevant electronic
communication network to cause the impairment.
(2) A person is to be
regarded as being entitled to control use of the relevant electronic
communication network if the person is entitled by law to determine who is to
have access to the network for the purpose of sending or receiving electronic
communications.
(3) For the purposes
of an offence against this Part, the onus of establishing that an impairment
of electronic communication was unauthorised lies on the prosecution.
86E—Use of computer with intention to commit, or facilitate the
commission of, an offence
(1) A person
who—
(a) uses
a computer to cause (directly or indirectly)—
(i)
unauthorised access to or modification of computer data;
or
(ii)
an unauthorised impairment of electronic communication;
and
(b)
knows that the access, modification or impairment is unauthorised; and
(c)
intends, by that access, modification or impairment to commit, or to
facilitate the commission (either by that person or someone else) of, a
serious
offence (the "principal offence"),
is guilty of an offence.
Maximum penalty: The maximum penalty for an attempt to commit the principal
offence.
(2) An offence may be
committed under this section—
(a)
whether the principal offence was to be committed at the time the computer was
used or later; and
(b) even
though it would have been impossible in the circumstances to commit the
principal offence.
(3) If the principal
offence is in fact committed—
(a) this
section does not prevent the person who used the computer from being convicted
as a principal offender or as an accessary to the commission of the principal
offence; but
(b) a
person is not liable to be convicted of the principal offence (or as an
accessory to the principal offence) and of an offence against this section.
(4) A person cannot be
convicted of an attempt to commit an offence against this section.
86F—Use of computer to commit, or facilitate the commission of, an
offence outside the State
(1) A person
who—
(a) uses
a computer in this State to cause (directly or indirectly)—
(i)
unauthorised access to or modification of computer data;
or
(ii)
an unauthorised impairment of electronic communication;
and
knows that the access, modification or impairment is unauthorised; and
(b)
intends, by that access, modification or impairment, to commit, or to
facilitate the commission (either by that person or someone else) of, a
prohibited act in another jurisdiction (the "relevant jurisdiction ),
is guilty of an offence.
Maximum penalty: The maximum penalty under the law of this State for an
attempt to commit the prohibited act in this State.
(2) A "prohibited act"
is an act that would—
(a) if
committed with intent in the relevant jurisdiction, constitute an offence for
which a maximum penalty of life imprisonment or imprisonment for a term of at
least 5 years is prescribed; and
(b) if
committed with intent in this State, constitute an offence for which a maximum
penalty of life imprisonment or imprisonment for a term of at least 5 years is
prescribed.
(3) A person may be
convicted of an offence against this section—
(a)
whether the prohibited act was to be committed at the time of the conduct to
which the charge relates or later; and
(b) even
though it would have been impossible in the circumstances to commit the
prohibited act.
(4) A person cannot be
convicted of an attempt to commit an offence against this section.
(5) In this
section—
"act" includes an omission or state of affairs that is (if it occurred in this
State) capable of constituting an element of an offence.
86G—Unauthorised modification of computer data
A person who—
(a)
causes (directly or indirectly) an unauthorised modification of computer data;
and
(b)
knows that the modification is unauthorised; and
(c)
intends, by that modification, to cause harm or inconvenience by impairing
access to, or by impairing the reliability, security or operation of, computer
data, or is reckless as to whether such harm or inconvenience will ensue,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
86H—Unauthorised impairment of electronic communication
A person who—
(a)
causes (directly or indirectly) an unauthorised impairment of electronic
communication; and
(b)
knows that the impairment is unauthorised; and
(c)
intends, by that impairment, to cause harm or inconvenience, or is reckless as
to whether harm or inconvenience will ensue,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
86I—Possession of computer viruses etc with intent to commit serious
computer offence
(1) A person is guilty
of an offence if the person—
(a)
produces, supplies or obtains proscribed data or a proscribed object; or
(b) is
in possession or control of proscribed data or a proscribed object,
with the intention of committing, or facilitating the commission (either by
that person or someone else) of, a serious computer offence.
Maximum penalty: Imprisonment for 3 years.
(2) In this
section—
"proscribed data" means a computer virus or other computer data clearly
designed or adapted to enable or facilitate the commission of a serious
computer offence;
"proscribed object" means a document or other object clearly designed or
adapted to enable or facilitate the commission of a serious computer offence.
Examples—
1 A disk, card or other data storage device
containing a computer virus or other computer data adapted for the commission
of a serious computer offence.
2 Instructions (whether in hard copy or electronic
form) for carrying out a serious computer offence.
(3) If it is
established in proceedings for an offence against this section that the
defendant was in control of proscribed data, it is irrelevant—
(a)
whether the data is stored inside or outside the State; or
(b)
whether the defendant owned or was in possession of the medium or device in
which the data was stored.
(4) A person may be
convicted of an offence against this section even though it would have been
impossible in the circumstances to commit the intended offence.
(5) A person cannot be
convicted of an attempt to commit an offence against this section.