Author: Nyman Gibson Miralis
Subject: Cyber Crime
Keywords: cyber crime, Crimes Act 1900 (NSW), Criminal Code (CTH), cyber-bullying, cyber security, computer hacking, online fraud, identity offences, online grooming, Australian Federal Police, Australian Crime Commission
Australia and the digital age
Online security has become one of the fastest expanding industries for governments across the world. Maintaining security in the cyberspace creates trust and confidence for individuals, corporations and the public sector.
How does Cyber Crime affect Individuals?
Photography and filming
In some cases, it is illegal to photograph or film a person and publish or distribute the photo or footage. This conduct can give rise to an offence where the images being produced or distributed amount to ‘child abuse material’ or child pornography.
Section 91K-91M of the Crimes Act 1900 (NSW) makes it an offence to film a person without their consent for your own sexual gratification.
This type of cybercrime is not an offence in itself, but is a term used to refer to various online activities which have the intention to humiliate, distress, annoy or harass a person.
It is very common for these offences to occur on blogs, social media sites and public forums. Possible offences include stalking or intimidating with intent to cause fear of physical or mental harm as per section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
The Criminal Code (CTH) similarly carries offences between 474.15 to 474.17 that target people using a carriage service to threaten to kill, threaten serious harm or to menace, harass or offend.
How can Cyber Crime affect Corporations?
The Australian Government now holds annual Cyber Security meetings comprising of leaders from business and the research community to align initiatives and strategies to tackle emerging issues. The aim is to create a national partnership that is better able to detect, deter and respond to cyber security threats and anticipate risks.
Computer Hacking and unauthorised access
These offences relate to the use of software or hardware to access computer systems.
In the Crimes Act 1900 (NSW), the main offences around computer hacking include:
- section 308D: the unauthorised modification of date with the intent to impair access to, or to impair the reliability, security or operation of any data held in a computer
- section 308E: the unauthorised impairment of electronic communication to or from a computer.
These offences are similarly found in Sections 476-478 of the Criminal Code (CTH).
Fraud is a serious offence found under Part 4AA of the Crimes Act (NSW) and Part 7.3 of the Criminal Code (CTH).
Section 192B of the Crimes Act (NSW) creates the offence of deception which caters for conduct by a person that causes a computer, machine or electronic device to make a response that a person is not authorised to cause it to make.
This forms the basis for fraud in section 192E which is an offence where a person, by any deception, dishonestly obtains property belonging to another or obtains any financial advantage or causes financial disadvantage. Such an offence can be effected if committed virtually.
Identify offences fall within Part 4AB of the Crimes Act 1900 (NSW) and Part 9.5 of the Criminal Code (CTH) which are based on the illegal use of identification information. Identification information includes name, address, date of birth, driving licence, passport, credit card, biometric data or ABN and TFN.
It is an offence to use or supply information with the intention of committing, or facilitating the commission of an indictable offence; section 192J of the Crimes Act 1900 (NSW) and section 372.1 of the Criminal Code (CTH).
It is also an offence to possess identification information with the intention of committing or facilitating the commission of an indictable offence; section 192K of the Crimes Act 1900 (NSW) and section 372.2 of the Criminal Code (CTH).
Cyber Crime offences relating to children
Child pornography and child abuse material
It is an offence within section 91FB of the Crimes Act 1900 (NSW) to access, possess or distribute ‘child abuse material’.
Child abuse material is defined broadly and covers any material that could depict or a describe a person who is, appears to be or is implied to be a child under the age of 16:
- in a sexual pose or engaged in sexual activity;
- in the presence of a person (or persons) in a sexual pose or engaged in sexual activity;
- the private parts of a child; or
- as a victim of torture, cruelty or physical abuse in a way that a reasonable person would find offensive.
In NSW, person found guilty of distributing child abuse material becomes a ‘registrable person’ under the Child Protection (Offenders Registration) Act 2000 (NSW) requiring him or her to be registered as a sex offender.
The Commonwealth Criminal Code targets offences that relate to the use of a ‘carriage service’ for the transmission of ‘child pornography material’. This is material that depicts a person who is or appears to be under the age of 18:
- in a sexual pose or engaged in sexual activity; or
- in the presence of a person in a sexual pose or engaged in sexual activity in a way that is offensive.
‘Grooming’ is a reference to the actions taken by a person to gain a child’s trust. Grooming a child for sexual activity is an offence within section 66EB of the Crimes Act 1900 (NSW) and division 474 of the Criminal Code (CTH).
Nyman Gibson Miralis specialise in dealing with complex national and international cybercrime investigations. Our expertise includes dealing with malware, phishing and computer hacking offences, bootlegging and tripping, Bitcoin and crypto-currency fraud, as well as offences relating to identity theft, spreading computer viruses and DDoS attacks. If you require assistance, contact one of our expert criminal defence lawyers