Every offence in Part III of the Cybercrime Code Act 2016 is labelled. Understanding the labels requires the Criminal Code.
Where the classification comes from
Section 2 provides that “offence” has the same meaning as in section 3 of the Criminal Code Act (Chapter 262), and that “criminally responsible” has the same meaning as in section 1 of that Act.
Section 3(1) applies the Criminal Code’s provisions on criminal practice and procedure, jurisdiction and punishments to this Act.
So the Cybercrime Code Act borrows the Criminal Code’s taxonomy. Section 3 of the Code divides offences into crimes, misdemeanours and simple offences, with crimes and misdemeanours together making up the indictable offences.
Which cybercrime offences are which
| Classification | Offences |
|---|---|
| Misdemeanour | s 6(1) unauthorised access; s 9(1) system interference; s 11 illegally remaining; s 14(1) electronic gambling by a child; s 22(1) cyber bullying; s 23(1) cyber harassment |
| Simply “an offence” | s 26 spam; s 36(4) failure to comply with a preservation notice |
| Crime | Every other offence in the Act — ss 6(2), 7, 8, 10, 12–13, 14(2), 15–21, 22(2)–(3), 23(2)–(4), 24–25, 27–31, 44 and 45 |
Four sections follow this structure:
Section 6 — subsection (1) a misdemeanour; subsection (2), where damage or loss results, a crime.
Section 9 — subsection (1) a misdemeanour; subsection (2), against critical infrastructure, a crime.
Section 22 — subsection (1) a misdemeanour; subsections (2) and (3), where harm or death results, crimes.
Section 23 — the same pattern.
And section 14 divides by offender: the child who gambles commits a misdemeanour; the gaming operator who makes gaming available to a child commits a crime.
Classification does not track the sentence
Section 9(1) is a misdemeanour carrying up to 10 years. Section 11 is a misdemeanour carrying seven years. Section 22(1) is a misdemeanour carrying seven years for an adult.
By contrast section 26 — labelled simply an offence — carries 12 months, and section 6(2), a crime, carries 15 years.
So the label reflects the character of the wrong rather than a sentencing tier. The maximum penalty is stated separately in each section.
Why the classification matters
- Procedure. Through section 3(1), the Criminal Code’s rules of criminal practice and procedure apply, and those rules differ by classification.
- Arrest and process. The powers available to police, and the way a charge is commenced, follow the Code’s framework for indictable and simple offences.
- Summary disposal. Section 48 allows twelve indictable offences listed in Schedule 2 to be dealt with summarily by a District Court constituted by a Principal Magistrate, under section 421 of the Criminal Code. Schedule 2 includes both crimes (ss 8, 15, 21(2), 25(1), 31) and misdemeanours (ss 6(1), 9(1), 11, 14(1), 22(1)–(2), 23(1)–(2)) and the simple offence in s 26.
- Sentencing. Sections 18 and 19 of the Criminal Code, expressly applied by section 3(1)(c), govern how sentences are imposed — including the general discretion in section 19 to impose less than the maximum, which several provisions of this Act refer to directly.
- Record and consequences. A conviction for a crime carries a different label from a misdemeanour, which can matter for employment, licensing and travel.
Classification and child offenders
Under section 5(3), where any offence in this Act is committed by a child between 10 and 18, the Juvenile Justice Act 2014 applies — whatever the classification.
Three offences state separate penalties for a child offender: section 14(1), section 22 and section 23. Each uses detention rather than imprisonment for the lesser forms, and each offers an ICT prohibition order as an alternative or an addition.
And under section 5(1) and (2), a child under 10 is not criminally responsible at all, and a child between 10 and 14 is not responsible unless it is proved they had capacity to know they ought not to do the act.
Note finally that section 3(2) makes this Act additional to the Criminal Code and every other criminal law, and gives it priority on inconsistency. The same conduct may therefore be charged under either statute, and the classification under this Act does not limit what may be charged under another.
Sources
- Cybercrime Code Act 2016 — ss 2, 3, 5–31, 36, 44, 45, 48; Schedule 2
- Criminal Code Act (Chapter 262) — ss 1, 3, 18, 19, 421; Juvenile Justice Act 2014
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.