technology lawyer

Introduction of cryptocurrency and hacking offences to Parliament

by

reviewed by

Malcolm Burrows

Reading Time:

4–7 minutes

The Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022 (Bill) seeks to amend the Criminal Code Act 1995 (Criminal Code), the Crimes Act 1914 and the Proceeds of Crime Act 2002 to bring historical legislation into the modern state of play as it relates to threats of ransomware.  The new powers under this Bill complement existing search and seizure powers, which we have previously considered here.

Geographical considerations

Importantly, at the outset, the Bill does away with geographical constraints upon offending.  Whilst it may have been the case that to be charged with a cyber type of offence the offending would need to have occurred within Australia, the Bill introduces an ‘impact-focused’ method of determining jurisdiction.  That is, instead of focusing on the location at which the offending occurs, the Bill is concerned of the location upon which the offending impacts.

Where the conduct constituting the alleged offence occurs wholly outside Australia and it constitutes an offence relating to unauthorised:

  • access to data;
  • modification of data;
  • impairment of electronic communication of data to or from a computer; or
  • impairment of the reliability, security or operation of any data; and

the data is under the control of an Australian person or corporation and is reasonably capable of being accessed within Australia, an offender will not escape liability for the offence based on the geographical externality to Australia.[1]

Cryptocurrency seizures

Schedule 3 of the Bill inserts various sections into the Crimes Act 1914.  Arguably, most interestingly amongst them is section 1, which inserts section 3C(1) to define a digital asset and its seizure as follows:

digital asset means:

  • a digital representation of value or rights (including rights to property), the ownership of which is evidenced cryptographically and that is held and transferred electronically by:
  • a type of distributed ledger technology; or
  • another distributed cryptographically verifiable data structure; or
  • a right or thing prescribed by the regulations;

but does not include any right or thing that, under the regulations, is taken to be a digital asset for the purposes of this Part.

seize, for a digital asset, has a meaning affected by subsection 3FA(3).

 The legislative definition does not outright state ‘cryptocurrencies’, but it is perfectly clear for all who read that it is indeed such currency which is being referred to.  Indeed, a cryptocurrency is a digital representation of value with ownership cryptographically evidenced and is tradeable on distributed ledge technology.

Therefore, it is prudent to consider the circumstances in which this Bill would allow the government to seize cryptocurrencies.

If a warrant is in force in relation to either a premises or a person, an executing officer may seize a digital asset if:

  • in the course of exercising the warrant, the officer finds one or more things that suggest the existence of the digital asset; and
  • the officer suspects the digital asset to be:
    • evidential material in relation to an offence to which the warrant relates; or
    • evidential material in relation to another offence that is an indictable offence; or
    • evidential material or tainted property; and
  • the officer reasonably suspects that seizing the digital asset is necessary to prevent its concealment, loss or destruction, or its use in committing an offence.[2]

It is clear that there needs to be a sufficient connection between the digital asset and an offence before an officer is authorised to seize the digital asset.  Where an officer is authorised to do so by transferring the digital asset from an existing digital wallet to a digital wallet controlled by the Australian Federal Police.[3]  Notably, the Explanatory Memorandum to the Bill indicates that an officer is not confined merely to the above method of seizing digital assets.[4]  It appears Parliament intends to provide very broad powers to officers, in certain circumstances, to seize digital assets.

Hacking offences

The Bill establishes an offence of data extortion with penalty of imprisonment of ten (10) years.  Where a person without authorisation accesses, modifies or impairs data held in a computer and then, via a carriage service, makes a threat to the owner of the data compelling them to do or omit to do an act.[5]

The Bill also established an offence of dealing with data.  Where a person obtains, accesses, modifies or releases data by use of a carriage service and was not authorised to access or modify said data, they will have committed an offence and be liable for five (5) years imprisonment.[6]

The most severe penalty for offending introduced by the Bill is in relation to aggravated computer offences, whereby an offender may be liable to twenty-five (25) years imprisonment.  Where an offender commits an underlying offence, such as unauthorised access or modification, but that act is targeted directly or indirectly towards ‘critical infrastructure’, it will be considered aggravating offending.[7]  Critical infrastructure is expansively defined under section 9 of the Security of Critical Infrastructure Act 2018.

Takeaways

The Bill provides a novel power for law enforcement to seize digital assets such as cryptocurrencies and provides further protection against cyber crimes via the introduction of more severe penalties and the removal of geographical constraints, which may otherwise have created difficulty in prosecuting international offenders.

Links and further references

Legislation

Crimes Act 1914

Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022

Criminal Code Act 1995

Explanatory Memorandum to Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022

Proceeds of Crime Act 2002

Security of Critical Infrastructure Act 2018

Further information about cryptocurrency seizure and hacking offences

If you need advice on cryptocurrency seizure and hacking offences, contact us for a confidential and obligation-free discussion:

[1] Bill section 1 introducing section 476/3 to the Code.

[2] Bill Schedule 3 section 7 inserting section 3FA(1) and (2) into the Crimes Act 1914; Bill Schedule 3 s 11 inserting section 288A(1) in the Proceeds of Crime Act 2002.

[3] Bill Schedule 3 section 7 inserting section 3FA(3) into the Crimes Act 1914; Bill Schedule 3 s 11 inserting section 288A(2) in the Proceeds of Crime Act 2002.

[4] Explanatory memorandum at [144].

[5] Bill Schedule 1 section 2 inserting section 477.4 into the Criminal Code.

[6] Bill Schedule 1 section 2 inserting section 478.5 into the Criminal Code.

[7] Bill Schedule 1 section 12 inserting sections 479.1 and 479.2 into the Criminal Code.


Related insights about cryptocurrency seizure and hacking offences

  • Are software developers responsible for defects in their software?

    Are software developers responsible for defects in their software?

    Software developers in Australia may face legal liability in negligence and under the Australian Consumer Law. This article examines what is required for negligence in the context of relevant case law.

    Read more …

  • Legal challenges arising from data loss

    Legal challenges arising from data loss

    Organisations must protect confidential data from external and internal threats. Learn steps to secure data, potential data breach implications, and how a data breach notification bill may require affected entities to notify consumers.

    Read more …

  • Data Breach Bill 2016 – key data security considerations

    Data Breach Bill 2016 – key data security considerations

    The Privacy Amendment (Notifiable Data Breaches) Bill 2016 has been passed, making notification of data breaches mandatory from 23 February 2018. Find out how this could affect you and what measures you can take to protect your data.

    Read more …

  • What are Software Development Agreements?

    What are Software Development Agreements?

    Having a Software Development Agreement (SDA) is essential for any successful software development project. Learn more about the key clauses involved and how to avoid potential issues.

    Read more …

  • Legal risks in the in-app purchase model

    Legal risks in the in-app purchase model

    Software developers and publishers are offering users the chance to make In-App Purchases within their software, but there are legal risks involved. Learn how to protect yourself and your business by understanding the requirements of distribution platforms and Australian consumer law.

    Read more …

  • Letting go of employees threatening to go to the media

    Letting go of employees threatening to go to the media

    When employees leak confidential information or threaten to go to the media, employers can face serious consequences. Find out what the Fair Work Commission says about this issue and what options employers have to protect themselves.

    Read more …

  • App developers – take care with Apple Developer License

    App developers – take care with Apple Developer License

    Creating apps for Apple devices requires adherence to Apple’s Developer Agreement, Program Licence Agreement, and App Store Review Guidelines. Learn about your rights and obligations when it comes to agreeing to Apple’s terms and conditions, and the consequences of ignoring them.

    Read more …

  • Data security – the increasing burden

    Data security – the increasing burden

    The consequences for an Australian business victim for a breach of cyber security are forecast to exponentially increase. In February 2015 the Parliamentary Joint Committee on Intelligence and Security (Committee) recommended the introduction of mandatory data breach notification scheme (Scheme) by the end of 2015.[1] Whilst the details of the incoming Scheme are currently scant,…

    Read more …

  • What exactly is an advertising sign-off?

    What exactly is an advertising sign-off?

    Injunctions are Court orders that can restrain almost any conduct. Prohibitory, Mandatory, and Ex Parte injunctions can be sought if serious question to be tried, urgency, damages would not suffice, and the balance of convenience favours the applicant.

    Read more …

Send this to a friend