Unauthorised modification of data to cause impairment is an offence under section 477.2 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 10 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You caused any unauthorised modification of data held in a computer
- You knew the modification was unauthorised, and
- You were reckless as to whether the modification impaired or would impair: (a) Access to data held in the computer, or (b) The reliability, security or operation of any such data.
‘Data’ is information in any form, including any program or part of a program.
‘Data held in a computer’ includes that which is held in any:
- Removable data storage device being held in a computer, or
- Data storage device on a computer network of which the computer formed a part.
‘Modification’ of data held in a computer, means:
- The alteration or removal of the data, or
- An addition to the data.
You caused an unauthorised modification if you substantially contributed to it.
The modification was not unauthorised merely because you had an ulterior purpose for causing it.
You were authorised to modify the data if this was done:
- Under a warrant pursuant to a law of the Commonwealth, a State or a Territory
- Under an emergency authorisation pursuant to the Surveillance Devices Act 2004 or under a law of a State or Territory to similar effect
- Under a tracking device authorisation given under section 39 of the Surveillance Devices Act 2004, or
- Pursuant to a technical assistance request or notice, or a technical capability notice.
You may be found guilty even if there is or will be no actual impairment to:
- Access to data held in the computer, or
- The reliability, security or operation of any such data.
You were ‘reckless’ if you were aware there was a substantial risk that your modification would impair access to, or the reliability, security or operation of, the data, or that there was a risk your modification would do so and it was unjustifiable to take that risk, but you went ahead with your actions regardless.
Duress is a defence to the charge.