Producing, supplying or obtaining data or a device with intent to copy an account identifier is an offence under section 474.12 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 2 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You produced, supplied or obtained data or any thing
- You did so intending for you or another person to use the data or thing to:
- Copy subscription-specific data from an account identifier, which is an offence under section 471.10(1) of the Act, or
- Copy subscription-specific data onto an account identifier, which is an offence under section 471.10(2) of the Act.
‘Data’ is information in any form, including any program or part of a program.
‘Subscription-specific secure data’ is that which is used, or capable of being used, to allow:
- A carrier to identify a particular mobile telecommunications account, or
- A mobile telecommunications device in which an account identifier that contains the data is installed to access the public mobile telecommunications service to which the account relates.
A ‘carrier’ is any organisation, eligible partnership or public body.
That is granted a licence by the Australian Communications and Media Authority (ACMA), which includes licensed radio and televisions stations.
An ‘account identifier’ is something that:
- Contains subscription-specific secure data, and
- Is installed, or capable of being installed, in a mobile telecommunications device, or anything else that allows a particular mobile telecommunications device to be identified and is prescribed by the regulations as an account identifier.
This includes a SIM card.
A ‘mobile telecommunications device’ is an item of customer equipment used, or capable of being used, in connection with a public mobile telecommunications service.
A ‘public telecommunications service’ is one whereby:
- an end user can use a carriage service while moving continuously between places
- the device is not in physical contact with any part of the telecommunications network, and
- the service has intercell hand-over functions.
A ‘carriage service’ is:
‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, which includes telephone calls, text messages and internet transmissions.
You are not guilty of the offence if you establish ‘on the balance of probabilities’ that:
- You were a carrier that operated the facilities used, or to be used, in the supply of the public telecommunications service to which the subscription-specific data related
- You were an employee or agent acting on the carrier’s behalf
- You were acting with the carrier’s consent
- You were a law enforcement, intelligence or security officer acting in the course of your duties, and your conduct was reasonable in the circumstances for performing those duties, or
- You were otherwise authorised by law to engage in the conduct.
It is not an offence to attempt to commit the offence.