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Preface

Cases of computer misuse in New Zealand have recently received much public attention. There have been justified calls for more effective criminal legislation. As an adjunct to its Electronic Commerce project, the Law Commission decided late last year to consider how our laws should deal with computer misuse.

In December 1998 the Commission published a short report suggesting an amendment to the Crimes Act 1961 to address the specific problem exposed by the judgment of the Court of Appeal in R v Wilkinson [1999] 1 NZLR 403: see Dishonestly Procuring Valuable Benefits (NZLC R51 1998). That report also suggested a wider review of Part X of the Crimes Act 1961 (see paras 11-13). The present report deals generally with computer misuse.

The Commission has concluded that the existing criminal law is inadequate. There is plain need for legislative amendment to create specific offences to address various types of computer misuse. Our views are set out briefly in the Executive Summary and in more detail in the body of the report.

The Ministry of Justice has also been considering issues arising out of computer misuse. The Minister for Justice recently announced his proposal to introduce into the House of Representatives legislation which will create criminal offences for certain types of computer misuse (see New Zealand InfoTech Weekly 11 April 1999, 1). On 19 April 1999 the Commission supplied to the Ministry of Justice a draft copy of this report so that it could be considered when preparing advice to the Minister.

Originally, we intended to issue this report as a preliminary paper to seek submissions on the views we express. However, because of the imminence of a Bill, we have issued a final report which is confined to concepts and which does not include draft legislation. While we would have preferred more time to consider the form of the legislative changes we consider it important for our work to be available both to the Ministry and the public in time for it to be of use. For comparative purposes we have set out in Appendix A the provisions recommended for New Zealand by the Crimes Consultative Committee in 1991 and examples of provisions to be found in other countries.

This report addresses distinct issues from those raised in the Commission’s report Dishonestly Procuring Valuable Benefits (NZLC R51 1998), which discusses the Court of Appeal decision R v Wilkinson [1999] 1 NZLR 403. We adhere to our recommendation that the solutions recommended in paras 9 and 10 of NZLC R51 be adopted as a matter of urgency.

The Law Commission has been greatly assisted in preparing this report by its Electronic Commerce Advisory Committee. The Commission wishes to express its thanks to the members of that Committee, namely: Elizabeth Longworth, Barrister and Solicitor of Longworth Associates, Auckland; David Goddard, Barrister, Wellington; Jim Higgins, Managing Director The Networking Edge Limited, Wellington, and Dr Henry Wolfe of the Information Science Department, University of Otago.

The Commissioner in charge of preparation of this report is D F Dugdale. Paul Heath QC, a consultant to the Commission on commercial law issues, has been responsible for overseeing preparation of the report. The research for the report has been undertaken by Jason Clapham to whom the Commission expresses its appreciation.

This report is available not only in hard copy, but also through our website: www.lawcom.govt.nz.