Section 1 of the Cybercrime Code Act 2016 is not boilerplate. It is the Act’s own account of what it costs, and why Parliament thought the cost justified.
Section 1(1) — a matter of national interest
For the purposes of section 41 of the Organic Law on Provincial Governments and Local-level Governments, it is declared that this law relates to a matter of national interest.
The declaration places cybercrime in the national legislative sphere rather than the provincial one. Compare the Copyright and Neighbouring Rights Act 2000, whose section 1(1) makes the same declaration under both Organic Laws on provincial government.
Section 1(2) — the six qualified rights
(a) the right to freedom from arbitrary search and entry conferred by section 44;
(b) the right to freedom of expression conferred by section 46;
(c) the right to privacy conferred by section 49;
(d) the right to freedom of information conferred by section 51;
(e) the right to freedom of movement conferred by section 52;
(f) the right to protection from unjust deprivation of property conferred by section 53,
of the Constitution.
| Right | Provisions that engage it |
|---|---|
| s 44 — search and entry | Section 32 warrants; section 33 search powers, including operating devices and accessing data not held at the private place; section 41 remote access to a suspect’s device |
| s 46 — expression | Section 21 defamatory publication; section 22 and section 23, including section 23(4) on vulgar or obscene commentary; section 17; section 31 |
| s 49 — privacy | Section 39 interception; section 40 traffic data; section 35(b) subscriber information; section 41 keystroke logging and remote tools |
| s 51 — information | Section 25 unlawful disclosure; section 45, which makes it a crime for a provider to reveal that an order exists |
| s 52 — movement | ICT prohibition orders under sections 14, 22, 23, 27–31 — barring a person from accessing and using ICTs; and imprisonment generally |
| s 53 — property | Section 33(e) moving devices for examination; section 32(4) detention and destruction of seized data or things; section 38 restraining orders |
Section 1(2) — the justification
The restriction is one that is necessary for the purpose of giving effect to the public interest in public safety, public order and public welfare and is reasonably justifiable in a democratic society having proper respect and regard for the rights and dignity of mankind, taking into account the National Goals and Directive Principles and Basic Social Obligations — because of the risks cybercrime poses to public safety, public order and public welfare, as well as to the successful social and economic development of Papua New Guinea and its citizens.
The qualified rights in Subdivision III.3.C of the Constitution may be regulated or restricted by a law that is reasonably justifiable in a democratic society having proper respect for the rights and dignity of mankind, and that is necessary for one of the listed purposes — here public safety, public order and public welfare.
Section 1(2) does three things required of such a law: it identifies the rights restricted; it states the purpose; and it gives the reason — the risks cybercrime poses to safety, order, welfare and development.
The declaration is not conclusive. Whether a particular provision is in fact reasonably justifiable remains a question for the courts, and the constitutional guarantees continue to apply to how the powers are exercised.
Where the tension is sharpest
Several content offences reach a long way into ordinary speech. Section 23(4) makes it a crime, punishable by up to 10 years for an adult, to post commentary whether or not it is directed at anyone in particular using language that is vulgar, or otherwise unacceptable or which grossly offends against accepted standards of public decency.
Section 21 makes online defamation a crime carrying up to 15 years, or 25 years if the publisher knew the material was false — where in many countries defamation is a civil matter only.
The Act does provide balancing mechanisms: the section 21(5) defences of truth, public benefit, fair comment and good faith; the shifting of the burden to the party alleging absence of good faith under section 21(7); and the application of section 362E of the Criminal Code on matters of public interest, with “public meeting” extended to include online discussion forums.
Part IV allows a court to authorise interception, traffic data collection, and the installation of remote forensic tools including keystroke logging, with remote access to the suspect’s device.
The safeguards are judicial rather than administrative: every one of those powers requires an application to a Court on sworn evidence, and section 41 adds detailed limits — a six-month maximum, restriction to what the investigation requires, mandatory recording, protection of the information obtained, immediate removal on discharge, and revocation where police exceed the order.
Read section 1 alongside section 4, which prevents retrospective punishment, and section 5, which fixes the age of criminal responsibility. Together they are the Act’s internal statement of its own limits.
Sources
- Cybercrime Code Act 2016 — ss 1, 4, 5, 17, 21–23, 25, 31–41, 45
- Criminal Code Act (Chapter 262) — s 362E
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.