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Cybercrime Legislation Amendment Bill 2011

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7232

2010-2011-2012

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

Cybercrime Legislation Amendment Bill 2011

 

 

(1)     Schedule 2, item 41, page 32 (line 3), at the end of subsection 180A(3), add “in relation to an offence that is punishable by imprisonment for at least 3 years”.

[limitations on access and disclosure]

(2)     Schedule 2, item 41, page 32 (line 13), after “country”, insert “in relation to an offence that is punishable by imprisonment for at least 3 years”.

[limitations on access and disclosure]

(3)     Schedule 2, item 41, page 34 (line 22), after “country”, insert “in relation to an offence that is punishable by imprisonment for at least 3 years”.

[limitations on access and disclosure]

(4)     Schedule 2, item 41, page 35 (lines 1 to 19), omit subsection 180D(2), substitute:

             (2)  The authorised officer must not authorise the disclosure of the information or documents to the Organisation unless he or she is satisfied that the disclosure is appropriate in all the circumstances and is reasonably necessary for the performance by the Organisation of its functions.

             (3)  The authorised officer must not authorise the disclosure of the information or documents to an enforcement agency unless he or she is satisfied that the disclosure is appropriate in all the circumstances and is reasonably necessary:

                     (a)  for the enforcement of the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

                     (b)  for the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

                     (c)  for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

             (4)  The authorised officer must not authorise the use of the information or documents by the Australian Federal Police unless he or she is satisfied that the disclosure is appropriate in all the circumstances and is reasonably necessary:

                     (a)  for the enforcement of the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

                     (b)  for the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

                     (c)  for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

[limitations on access and disclosure]

(5)     Schedule 2, items 54, 55 and 56, page 39 (lines 5 to 19), omit the items, substitute:

54  Paragraph 313(3)(c)

Repeal the paragraph, substitute:

                     (c)  enforcing the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years;

                    (ca)  enforcing a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;

                   (cb)  assisting the enforcement of the criminal laws in force in a foreign country in relation to an offence that is punishable by imprisonment for at least 3 years;

54A  At the end of paragraph 313(3)(d)

Add “in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;”.

54B  At the end of paragraph 313(3)(e)

Add “in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.”.

55  Paragraph 313(4)(c)

Repeal the paragraph, substitute:

                     (c)  enforcing the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years;

                    (ca)  enforcing a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;

                   (cb)  assisting the enforcement of the criminal laws in force in a foreign country in relation to an offence that is punishable by imprisonment for at least 3 years;

55A  At the end of paragraph 313(4)(d)

Add “in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;”.

55B  At the end of paragraph 313(4)(e)

Add “in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.”.

56  Application of amendments made by this Part

(1)       The amendments made by items 54, 54A and 54B of this Schedule apply to help given by a carrier or carriage service provider on or after the commencement of this item.

(2)       The amendments made by items 55, 55A and 55B of this Schedule apply to help given by a carriage service intermediary on or after the commencement of this item.

[limitations on access and disclosure]

(6)     Schedule 4, page 42 (after line 8), after item 1, insert:

1A  At the end of subsection 177(1)

Add “in relation to an offence that is punishable by imprisonment for at least 3 years”.

1B  Subsection 177(2)

Repeal the subsection, substitute:

Enforcement of a law imposing a pecuniary penalty

             (2)  Sections 276 and 277 of the Telecommunications Act 1997 do not prevent a disclosure by a person (the holder ) of information or a document to an enforcement agency if the disclosure is reasonably necessary for the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

                     (a)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                     (b)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

Enforcement of a law for the protection of the public revenue

          (2A)  Sections 276 and 277 of the Telecommunications Act 1997 do not prevent a disclosure by a person (the holder ) of information or a document to an enforcement agency if the disclosure is reasonably necessary for the enforcement of a law for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

                     (a)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                     (b)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

1C  At the end of subsection 178(3)

Add “in relation to an offence that is punishable by imprisonment for at least 3 years”.

1D  Subsection 179(3)

Repeal the subsection, substitute:

             (3)  The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for:

                     (a)  the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

                     (b)  for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

[limitations on access and disclosure]

(7)     Schedule 4, item 3, page 43 (lines 7 to 17), omit subsection 181A(3), substitute:

             (3)  Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is for the purposes of the authorisation, revocation or notification concerned.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code ).

          (3A)  Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is reasonably necessary:

                     (a)  to enable the Organisation to perform its functions; or

                     (b)  to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

                     (c)  to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

                     (d)  to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3A) (see subsection 13.3(3) of the Criminal Code ).

[limitations on access and disclosure]

(8)     Schedule 4, item 3, page 44 (lines 3 to 13), omit subsection 181A(6), substitute:

             (6)  Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is for the purposes of the authorisation, revocation or notification concerned.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ).

             (7)  Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is reasonably necessary:

                     (a)  to enable the Organisation to perform its functions; or

                     (b)  to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

                     (c)  to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

                     (d)  to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).

[limitations on access and disclosure]

(9)     Schedule 4, item 3, page 45 (lines 3 to 13), omit subsection 181B(3), substitute:

             (3)  Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is for the purposes of the authorisation, revocation or notification concerned.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code ).

          (3A)  Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is reasonably necessary:

                     (a)  to enable the Organisation to perform its functions; or

                     (b)  to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

                     (c)  to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

                     (d)  to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3A) (see subsection 13.3(3) of the Criminal Code ).

[limitations on access and disclosure]

(10)   Schedule 4, item 3, page 46 (lines 1 to 10), omit subsection 181B(6), substitute:

             (6)  Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is for the purposes of the authorisation, revocation or notification concerned.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ).

             (7)  Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is reasonably necessary:

                     (a)  to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

                     (b)  to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

                     (c)  to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

                              (i)  a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

                             (ii)  if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).

[limitations on access and disclosure]