Lyla Lindsey
In Australia, hacking or unauthorised access to data is a criminal offence. The Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 gives the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) the authority to disrupt and prosecute online criminal activity. The use of spyware without the user's consent is considered cybercrime, and the Commonwealth Criminal Code Act 1995 prescribes multiple computer crime hacking offences that warrant imprisonment, fines, and convictions.
| Characteristics | Values |
|---|---|
| Hacking someone's phone | Illegal |
| Using spyware without consent | Illegal |
| Police access to phones | Only with consent or a warrant |
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What You'll Learn
Police access to phones
In Australia, police can access your phone if they have a valid warrant. Warrants are issued if there is reasonable suspicion that you have committed a crime, and the warrant must specify that text messages are among the data they are allowed to examine. Police can also seize phones during routine checks or arrests if they believe the phone contains evidence of a crime and there is a risk that this evidence could be lost or destroyed. In this case, they can temporarily seize the phone but still require a warrant to search its contents.
During an arrest, police can seize property, including phones, and search your possessions during or after an arrest if there is reasonable suspicion that the item could be used in a crime, aid escape, or provide evidence. In Queensland, Sections 88A and 88B of the Crime and Corruption Act 2001 allow law officials to obtain information on a phone from the service provider and social media accounts. A similar law exists in New South Wales.
In 2022, the Australian government amended the Surveillance Legislation on the Identify and Disrupt Bill 2020, giving the Australian Federal Police (AFP) and Australian Criminal Intelligence Commission (ACIC) more rights to search and seize information on mobile devices. Data disruption warrants allow law enforcement to modify or delete data on suspected offenders' devices. Network activity warrants allow police to collect intelligence about criminal networks, and account takeover warrants give police permission to take control of online accounts on a suspected offender's mobile phone.
The length of time police can keep your phone must be reasonable and only last as long as necessary to complete relevant investigative actions, such as obtaining a warrant or conducting the search. If your phone is held for an extended period, police should provide reasons for the continued retention.
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Spyware and hacking programs
Spyware is a type of malware that infiltrates and infects devices without being noticed. It is carefully disguised by attackers to encourage users to open it, often by obscuring malicious files within regular downloads and websites. Spyware can be used to steal data such as call logs, browser history, contact lists, photos, and text messages. Certain types of spyware can also record using the device's microphone, take photos, and track locations using GPS.
One example of spyware is Pegasus, which was used to infect the devices of activists, lawyers, journalists, and mental health counsellors in Bahrain. Pegasus was developed by the NSO Group, and it can be installed on devices running certain versions of iOS and some Android devices.
Another example of spyware is the Remote Access Trojan (RAT) called "Imminent Monitor", which was created by a 24-year-old Australian man when he was just 15 years old. This spyware was sold to 14,500 individuals across 128 countries, including 201 Australians. The software was advertised on forums dedicated to hacking and cost roughly $35 (AUD). Once installed on a victim's computer, it allowed users to control the device, steal personal information, or spy on the victim by turning on their webcam and microphone.
To protect yourself from spyware, it is important to keep your device's software and operating system up to date and only download apps and software from trusted sources. It is also recommended to avoid clicking on suspicious links or emails and to keep your webcam covered when not in use.
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Cybercrime and hacking offences
In Australia, hacking or unauthorised access to data is a criminal offence. The Commonwealth Criminal Code Act 1995 (Criminal Code) outlines various computer crime hacking offences that can result in imprisonment, fines, and convictions. This includes hacking without consent.
The Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 has given the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) expanded powers to disrupt and prosecute online criminal activity. This legislation applies only to Commonwealth crimes with a sentence of more than three years, excluding state-level crimes like murder or robbery.
The use of spyware without user consent is considered cybercrime. In 2019, a 24-year-old Australian man was charged for creating and selling the Remote Access Trojan (RAT) spyware, which allowed users to control devices, steal personal information, and spy on victims. The spyware was sold to individuals in 128 countries, including 201 Australians.
If charged with an unauthorised access offence, there are several defences available. These include mistaken identity, not intentionally accessing or modifying data, and having authorisation or entitlement to access the data.
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Defences against unauthorised access charges
In Australia, unauthorised access to computer systems is criminalised by both State and Federal legislation. The Commonwealth Criminal Code Act 1995 (Criminal Code) prescribes multiple computer crime hacking offences warranting imprisonment, fines, and convictions. This includes hacking without consent.
If you have been charged with unauthorised access, you have several defences available to you. Here are some strategies that can be used as defences against unauthorised access charges:
- Mistaken identity: You can argue that you were not the person who committed the offence. For example, someone else with access to the device used to commit the offence may have been responsible.
- Data not meeting the definition of restricted: If the data accessed does not meet the legal definition of restricted data, this can be used as a defence. Restricted data is typically protected by an access control system, such as a password or encryption.
- Authorisation or entitlement: If you had authorisation or were entitled to access the data, this can be a valid defence. This includes express or implied consent or authorisation. For instance, if you accessed the data as an employee or subcontractor and did not intentionally access or modify restricted data, you may have a defence against the charge.
- Ulterior purpose: In some jurisdictions, Section 308B(2) states that the 'access or modification' is not unauthorised if the person had an ulterior purpose for their actions. However, this defence has limitations. For example, an officer accessing data outside the scope of their duties cannot rely on this subsection as a defence.
- Ignorance of restricted nature: While ignorance of the law is generally not a valid excuse, you may be able to argue that you were unaware of the restricted nature of the data. This defence may be more successful if you can demonstrate that you did not intend to use the information for any unlawful purpose.
It is important to note that the availability and effectiveness of these defences may vary depending on the specific circumstances of the case and the applicable laws in the relevant Australian state or territory. Seeking legal advice from a qualified professional is essential to understand your rights and options.
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Privacy rights
In Australia, unauthorised access to computer systems is considered a criminal offence under both State and Federal legislation. The Commonwealth Criminal Code Act 1995 (Criminal Code) outlines multiple computer crime hacking offences that warrant imprisonment, fines, and convictions. This includes hacking without consent.
The Privacy Act 1988 is the primary piece of Australian legislation that safeguards the handling of personal information about individuals. This includes the collection, use, storage, and disclosure of personal information in the federal public sector and the private sector. The Privacy Act was amended in December 2022 to increase maximum penalties and provide the Office of the Australian Information Commissioner with enhanced enforcement and information-sharing powers.
The Australian Cyber Security Centre received over 67,500 cybercrime reports in the 2020-2021 financial year, indicating a cyber-attack report approximately every eight minutes. To protect oneself from spyware, it is crucial to keep devices' software and operating systems updated and only download apps and software from trusted sources.
In terms of state-based legislation, the New South Wales' (NSW) Crimes Act 1900 criminalises the hacking of private computer systems. It sets out multiple offences related to unauthorised access, modification, or impairment of restricted data and electronic communications. The maximum penalty for unauthorised impairment of electronic communication is 10 years' imprisonment.
Additionally, there are state/territory laws that may be relevant to cybersecurity, including criminal laws and privacy legislation pertaining to accessing and handling specific information, such as health records. The Australian legal system also recognises a common-law doctrine against the misuse of confidential information.
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Frequently asked questions
Yes, hacking someone's phone is illegal in Australia and is considered a cybercrime. The Commonwealth Criminal Code Act 1995 (Criminal Code) outlines multiple computer crime hacking offences that can result in imprisonment, fines, and convictions.
Hacking is considered to be the unauthorised access of data, such as passwords or security features, or the manipulation of someone else's systems without their permission or consent.
If you suspect that someone is hacking your phone, it is advisable to seek legal advice and contact the Australian Cyber Security Centre, which handles cybercrime reports. Additionally, ensure that your device's software and operating system are up to date, and only download apps and software from trusted sources.
