(ii) any conduct engaged in by the other person while trespassing on the agricultural land;
could cause detriment to a primary production business that is being carried on on the agricultural land.
Penalty: Imprisonment for 12 months.
(2) Subsection (1) does not apply to material if the material relates to a news report, or a current affairs report, that:
(a) is in the public interest; and
(b) is made by a person working in a professional capacity as a journalist.
(2A) In a prosecution for an offence against subsection (1), the defendant does not bear an evidential burden in relation to the matters in subsection (2), despite subsection 13.3(3).
(3) Subsection (1) does not apply to conduct engaged in by a person if, as a result of the operation of a law of the Commonwealth, a State or a Territory, the person is not subject to any civil or criminal liability for the conduct.
Note 1: The Public Interest Disclosure Act 2013 provides that an individual is not subject to any civil or criminal liability for making a public interest disclosure.
Note 2: Section 1317AB of the Corporations Act 2001 provides that a person who makes a disclosure that qualifies for protection under Part 9.4AAA of that Act is not subject to any civil or criminal liability for making the disclosure.
Note 3: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(4) Subsection (3) does not limit section 10.5 (lawful authority).
474.47 Using a carriage service for inciting property damage, or theft, on agricultural land
(1) A person (the offender) commits an offence if:
(a) the offender transmits, makes available, publishes or otherwise distributes material; and
(b) the offender does so using a carriage service; and
(c) the offender does so with the intention of inciting another person to:
(i) unlawfully damage property on agricultural land; or
(ii) unlawfully destroy property on agricultural land; or
(iii) commit theft of property on agricultural land.
Penalty: Imprisonment for 5 years.
(2) Subsection (1) does not apply to material if the material relates to a news report, or a current affairs report, that:
(a) is in the public interest; and
(b) is made by a person working in a professional capacity as a journalist.
(2A) In a prosecution for an offence against subsection (1), the defendant does not bear an evidential burden in relation to the matters in subsection (2), despite subsection 13.3(3).
(3) Subsection (1) does not apply to conduct engaged in by a person if, as a result of the operation of a law of the Commonwealth, a State or a Territory, the person is not subject to any civil or criminal liability for the conduct.
Note 1: The Public Interest Disclosure Act 2013 provides that an individual is not subject to any civil or criminal liability for making a public interest disclosure.
Note 2: Section 1317AB of the Corporations Act 2001 provides that a person who makes a disclosure that qualifies for protection under Part 9.4AAA of that Act is not subject to any civil or criminal liability for making the disclosure.
Note 3: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(4) Subsection (3) does not limit section 10.5 (lawful authority).
When a person commits theft
(5) For the purposes of this section, a person commits theft of property if:
(a) the property belongs to another person; and
(b) the person dishonestly appropriates the property with the intention of permanently depriving the other person of the property.
(6) An expression used in subsection (5) and in Chapter 7 has the same meaning in that subsection as it has in that Chapter.
(7) In a prosecution for an offence against this section, the determination of dishonesty is a matter for the trier of fact.
(8) Sections 131.2 to 131.11 apply (with appropriate modifications) in determining whether a person commits theft of property (within the meaning of this section).
474.48 Implied freedom of political communication
(1) This Subdivision does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
(2) Subsection (1) does not limit the application of section 15A of the Acts Interpretation Act 1901 to this Act.
Division 475—Miscellaneous
475.1A Defences for NRS employees and emergency call persons
(1) A person is not criminally responsible for an offence against a provision of Subdivision C, D, E, F, G, HA, HB or J of Division 474 in relation to particular conduct if the person:
(a) is an employee of an NRS provider; and
(b) engages in the conduct in good faith in the course of the person’s duties as such an employee.
(2) A person is not criminally responsible for an offence against a provision of Subdivision C, D, E, F, G, HA, HB or J of Division 474 in relation to particular conduct if the person:
(a) is an emergency call person; and
(b) engages in the conduct in good faith in the course of the person’s duties as such an emergency call person.
475.1B Provisions relating to element of offence that particular conduct was engaged in using a carriage service
Presumption that conduct engaged in using carriage service
(1) If:
(a) a physical element of an offence against Subdivision C, D, E, F or J of Division 474 consists of a person using a carriage service to engage in particular conduct; and
(b) the prosecution proves beyond reasonable doubt that the person engaged in that particular conduct;
then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Absolute liability applies to physical element of offence that carriage service was used
(2) If:
(a) a physical element of an offence against Subdivision C, D, E, F or J of Division 474 consists of a person using a carriage service to engage in particular conduct; and
(b) the prosecution proves beyond reasonable doubt that the person intended to engage in that particular conduct;
then absolute liability applies to the physical element of the offence that a carriage service was used to engage in that particular conduct.
Note: For absolute liability, see section 6.2.
475.1 Saving of other laws
(1) This Part is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
(2) Without limiting subsection (1), a provision in this Part to the effect that a person is not criminally responsible for an offence against a provision of this Part in relation to particular conduct does not make the conduct lawful if it would otherwise be unlawful under the Radiocommunications Act 1992.
475.2 Geographical jurisdiction
(1) Section 15.1 (extended geographical jurisdiction—category A) applies to each offence against this Part (other than Subdivision H of Division 474).
(2) Section 14.1 (standard geographical jurisdiction) does not apply to an offence against Subdivision H of Division 474.
Part 10.7—Computer offences
Division 476—Preliminary
476.1 Definitions
(1) In this Part:
access to data held in a computer means:
(a) the display of the data by the computer or any other output of the data from the computer; or
(b) the copying or moving of the data to any other place in the computer or to a data storage device; or
(c) in the case of a program—the execution of the program.
ASIO officer means:
(a) the Director‑General of Security; or
(b) an ASIO employee (within the meaning of the Australian Security Intelligence Organisation Act 1979); or
(c) an ASIO affiliate (within the meaning of that Act).
civil or criminal liability means any civil or criminal liability (whether under this Part, under another law or otherwise).
computer‑related act, event, circumstance or result means an act, event, circumstance or result involving:
(a) the reliability, security or operation of a computer; or
(b) access to, or modification of, data held in a computer or on a data storage device; or
(c) electronic communication to or from a computer; or
(d) the reliability, security or operation of any data held in or on a computer, computer disk, credit card, or other data storage device; or
(e) possession or control of data held in a computer or on a data storage device; or
(f) producing, supplying or obtaining data held in a computer or on a data storage device.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
electronic communication means a communication of information in any form by means of guided or unguided electromagnetic energy.
impairment of electronic communication to or from a computer includes:
(a) the prevention of any such communication; or
(b) the impairment of any such communication on an electronic link or network used by the computer;
but does not include a mere interception of any such communication.
modification, in respect of data held in a computer, means:
(a) the alteration or removal of the data; or
(b) an addition to the data.
unauthorised access, modification or impairment has the meaning given in section 476.2.
(2) In this Part, a reference to:
(a) access to data held in a computer; or
(b) modification of data held in a computer; or
(c) the impairment of electronic communication to or from a computer;
is limited to such access, modification or impairment caused, whether directly or indirectly, by the execution of a function of a computer.
476.2 Meaning of unauthorised access, modification or impairment
(1) In this Part:
(a) access to data held in a computer; or
(b) modification of data held in a computer; or
(c) the impairment of electronic communication to or from a computer; or
(d) the impairment of the reliability, security or operation of any data held on a computer disk, credit card or other device used to store data by electronic means;
by a person is unauthorised if the person is not entitled to cause that access, modification or impairment.
(2) Any such access, modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.
(3) For the purposes of an offence under this Part, a person causes any such unauthorised access, modification or impairment if the person’s conduct substantially contributes to it.
(4) For the purposes of subsection (1), if:
(a) a person causes any access, modification or impairment of a kind mentioned in that subsection; and
(b) the person does so:
(i) under a warrant issued under the law of the Commonwealth, a State or a Territory; or
(ii) under an emergency authorisation given to the person under Part 3 of the Surveillance Devices Act 2004 or under a law of a State or Territory that makes provision to similar effect; or
(iii) under a tracking device authorisation given to the person under section 39 of that Act; or
(iv) in accordance with a technical assistance request; or
(v) in compliance with a technical assistance notice; or
(vi) in compliance with a technical capability notice;
the person is entitled to cause that access, modification or impairment.
476.3 Geographical jurisdiction
Section 15.1 (extended geographical jurisdiction—Category A) applies to offences under this Part.
476.4 Saving of other laws
(1) This Part is not intended to exclude or limit the operation of any other law of the Commonwealth, a State or a Territory.
(2) Subsection (1) has effect subject to sections 476.6 and 476.7.
476.6 Liability for certain acts—ASIS, ASD or AGO
(1) A staff member or agent of an agency (within the meaning of subsection (10)) is not subject to any civil or criminal liability for engaging in conduct inside or outside Australia if:
(a) the conduct is engaged in on the reasonable belief that it is likely to cause a computer‑related act, event, circumstance or result to take place outside Australia (whether or not it in fact takes place outside Australia); and
(b) the conduct is engaged in in the proper performance of a function of the agency.
(2) A person is not subject to any civil or criminal liability for engaging in conduct inside or outside Australia if:
(a) the conduct is preparatory to, in support of, or otherwise directly connected with, overseas activities of an agency; and
(b) the conduct:
(i) taken together with a computer‑related act, event, circumstance or result that took place, or was intended to take place, outside Australia, could amount to an offence; but
(ii) in the absence of that computer‑related act, event, circumstance or result, would not amount to an offence; and
(c) the conduct is engaged in in the proper performance of a function of the agency.
(3) Subsection (2) is not intended to permit any conduct in relation to premises, persons, computers, things, or carriage services in Australia, being:
(a) conduct which ASIO could not engage in without a Minister authorising it by warrant issued under Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979 or under Part 2‑2 of the Telecommunications (Interception and Access) Act 1979; or
(b) conduct engaged in to obtain information that ASIO could not obtain other than in accordance with Division 3 of Part 4‑1 of the Telecommunications (Interception and Access) Act 1979.
(4) Subsections (1) and (2) have effect despite anything in a law of the Commonwealth or of a State or Territory, whether passed or made before or after the commencement of this subsection, unless the law expressly provides otherwise.
(5) Subsection (4) does not affect the operation of subsection (3).
Certificate
(6) The Inspector‑General of Intelligence and Security may give a certificate in writing certifying any fact relevant to the question of whether conduct was engaged in in the proper performance of a function of an agency.
(7) In any proceedings, a certificate given under subsection (6) is prima facie evidence of the facts certified.
Notice to Inspector‑General of Intelligence and Security
(8) If:
(a) a person engages in conduct referred to in subsection (1) or (2) in relation to an agency; and
(b) the conduct causes material damage, material interference or material obstruction to a computer (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979) in Australia; and
(c) apart from this section, the person would commit an offence against this Part;
then the agency head (within the meaning of the Intelligence Services Act 2001) of the agency must, as soon as practicable, give a written notice to the Inspector‑General of Intelligence and Security that:
(d) informs the Inspector‑General of Intelligence and Security of that fact; and
(e) provides details about the conduct that caused the damage, interference or obstruction to the computer.
(9) This section has effect in addition to, and does not limit, section 14 of the Intelligence Services Act 2001.
Definitions
(10) In this section:
agency means ASIS, ASD or AGO.
AGO means that part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation.
ASD means the Australian Signals Directorate.
ASIS means the Australian Secret Intelligence Service.
staff member means:
(a) in relation to ASIS:
(i) the Director‑General of ASIS; or
(ii) a member of the staff of ASIS (whether an employee of ASIS, a consultant or contractor to ASIS, or a person who is made available by another Commonwealth or State authority or other person to perform services for ASIS); or
(b) in relation to ASD:
(i) the Director‑General of ASD; or
(ii) a member of the staff of ASD (whether an employee of ASD, a consultant or contractor to ASD, or a person who is made available by another Commonwealth or State authority or other person to perform services for ASD); or
(c) in relation to AGO:
(i) the Director of AGO; or
(ii) a member of the staff of AGO (whether an employee of AGO, a consultant or contractor to AGO, or a person who is made available by another Commonwealth or State authority or other person to perform services for AGO).
476.7 Liability for certain acts—defence officials
(1) A defence official (within the meaning of subsection (8)) is not subject to any civil or criminal liability for engaging in conduct inside or outside Australia if:
(a) the conduct is engaged in on the reasonable belief that it is likely to cause a computer‑related act, event, circumstance or result to take place outside Australia (whether or not it in fact takes place outside Australia); and
(b) the conduct is engaged in in the proper performance of authorised ADF activities.
(2) A person is not subject to any civil or criminal liability for engaging in conduct inside or outside Australia if:
(a) the conduct is preparatory to, in support of, or otherwise directly connected with, authorised ADF activities outside Australia; and
(b) the conduct:
(i) taken together with a computer‑related act, event, circumstance or result that took place, or was intended to take place, outside Australia, could amount to an offence; but
(ii) in the absence of that computer‑related act, event, circumstance or result, would not amount to an offence; and
(c) the conduct is engaged in in the proper performance of authorised ADF activities.
(3) Subsection (2) is not intended to permit any conduct in relation to premises, persons, computers, things, or carriage services in Australia, being:
(a) conduct which ASIO could not engage in without a Minister authorising it by warrant issued under Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979 or under Part 2‑2 of the Telecommunications (Interception and Access) Act 1979; or