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[5.3] Section 135ASA: Making unauthorised decoder

[5.3] Section 135ASA: Making unauthorised decoder

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Chapter 6
applicable. 885 In Falconer, 886 the High Court concluded that the phrase “discharge a firearm” should
be viewed as a single element since “a consequence which the bodily movement is apt to effect and
is inevitable and which occurs contemporaneously with the bodily movement is more appropriately
regarded as a circumstance that identifies the character of the “act” which is done by making the
bodily movement.” 887
The unauthorised decoder itself can consist of any device, including a computer program. A
computer program would consist of an algorithm that can decode the broadcast signal. Such
algorithms can be converted into large prime numbers, and these have been called the “illegal
primes”. 888
[5.3.2] “the unauthorised decoder will be used to enable a person to gain access to an
encoded broadcast without the authorisation of the broadcaster”
This element of the offence in occurs in a number of the offences in Division 3. It is clear that this is a
result element. However the ultimate result of the gaining access to an encoded broadcast is not
contemplated to have actually occurred. As discussed above at paragraph [4.2.3], it is not unique to
include inchoate results as elements to offences in the Copyright Act 1968 (Cth). The inchoate result
element in the ERM information offences is capable of being interpreted in such a way as to make
some sort of sensible reading of the element. This element of s 132ASA does not allow the same
interpretation, since the result refers to an actual event rather than a change in the quality of an
event.
It is hypothetical that this element was originally intended to be the fault element to the various
offences in which it occurs:
“(1) A person commits an offence if:
(a) the person makes an unauthorised decoder with the intention that;
(b) the unauthorised decoder will be used to enable a person to gain access to an
encoded broadcast without the authorisation of the broadcaster.”
Changing this into a physical element was probably intended to:

885

Odgers, S., Principles of Federal Criminal Law (2010, 2nd ed) 18-24
Falconer (1990) 171 CLR 30
887
Falconer (1990) 171 CLR 30, 38
888
http://en.wikipedia.org/wiki/Illegal_prime (Accessed 27 July 2012)
886

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
(1) remove the need for a prosecuting authority to prove which use of the device the defendant
intended;
(2) replace this with the easier requirement to prove the defendant had intended to engage in
the physical conduct;
(3) enable the prosecution to prove the physical result element by demonstrating that the
device is capable of decrypting an encoded broadcast; and
(4) lower the culpability of this element of an offence from intention to recklessness.
This would have made the proving the offence an easier task for prosecutors. If this was the
intention the offence should have been drafted like so:
“(1) A person commits an offence if:
(a) the person makes an unauthorised decoder; and
(b) the unauthorised decoder will enable a person to gain access to an encoded
broadcast without the authorisation of the broadcaster”
The inclusion of the words “be used to” between “will” and “enable” in sub-s 132ASA(1)(b) creates a
problem for prosecutors. To demonstrate the problem with the greatest clarity, it is necessary to
apply the offence to a set of hypothetical facts.
A is an organised criminal. Through his activities he has accumulated enough money to invest in an
enterprise producing decoders which enable people to gain access to encoded broadcasts without
paying the broadcaster. A and his employee B make 500 decoders with the intention of selling them
through his underworld contacts. Unknown to A, his “employee”, is actually an undercover
policeman. B informs his police supervisor when the decoders are ready for shipment. The police
raid A’s premises, arrest A under s 135ASA and seize the decoders as evidence.
If A is charged under s 132ASA, it will be a relatively straightforward matter to prove that A made an
unauthorised decoder intentionally. If the decoders work as they are designed, it could also be
proved that the unauthorised decoders enable a person to gain access to an encoded broadcast
without the authorisation of the broadcaster. However, it will be impossible to prove that the
decoders will be used to that end, because they will never be used for anything other than evidence
if they remain in a police evidence room.

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Chapter 6
This is the legal equivalent of the observer effect in physics. The interception of the decoders
nullifies the offence. This seems to have been overlooked in the preceding case to Nahlous v R, 889
where the defendant pleaded guilty to a number of related offences.
If there is evidence of the actual use of decoder, the element can be proved because the offence
refers to a future use without expressly specifying when that period of time ends. The time period
for the offence begins immediately after the conduct element of the offence is complete and does
not expire. 890 However it would have to be proved that the making of the decoder and its use
formed a single transaction. 891
Leading proof that the decoder has been used would enable evidence to be led that at the moment
the conduct element of the offence was committed, the decoder will be used. But if, as in the
example, the decoder is seized before it has a chance to be used, prosecutors will have to charge
offenders with an attempt at the offences to circumvent the problem. This means they will be
required to prove that the defendant intended 892 that the decoder was to be used to enable a
person to gain access to an encoded broadcast without the authorisation of the broadcaster. If the
hypothetical origins of this offence are accepted, the prosecution is in the same position that existed
before the change.
In respect to the authorisation of the broadcaster, once again it is unclear where the evidential
burden lies, as discussed above at paragraph [4.2.2].

[5.4] 135ASB: Selling or hiring; 135ASC: Offering for sale or hire; 135ASD:
Commercially exhibiting; 132ASE: Importing; 135ASF: Distributing
Sections 135ASB – 135ASF [see Appendix at pages 358 - 359] consist of offences for a variety of
dealings in unauthorised decoders. These offences have direct equivalents in the Part V Division 5
offences for dealings in infringing copies. With two exceptions, the conduct elements of the offences
are identical to both the conduct elements in those offences, 893 and the fault elements in the
importation offence. These elements are analysed at length in Chapter 5, so it is unnecessary to
repeat the analysis here.

889

Nahlous v R [2010] NSWCCA 58
Crimes Act 1914 (Cth) s 15B
891
R v GMW [2005] NSWCCA 101; Dickens v The Queen [2004] WASCA 179; Pearce v The Queen [1998] HCA 57
892
Criminal Code Act 1995 (Cth) sch 1 s 11.1(3)
893
Cf Copyright Act 1968 (Cth), ss 132AE(1)(a); 132AF(1)(a) and (2)(a);132AG(1)(a) and (2)(a); 132AH(1)(a); and
132AI(1)(a)
890

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
All of these offences also contain the “will be used to enable” element discussed above at paragraph
[5.3.2]. The problem with that element in s 132ASA is equally applicable to these offences. The
practical issues that the problem raises are particularly acute in the importing offence in s 132ASE,
since seizures of unauthorised decoders are likely to occur either at the point of entry or
immediately after delivery as they are in drug importation offences. 894
The differences between the conduct elements in these offences and the offences in Part V Division
5 are:
(1) the distribution offence does not expressly include a communication; and
(2) both the importation and distribution offences contain a modified and expanded fault
element for non-commercial distribution that has a prejudicial affect.
[5.4.1] “engaging in any other activity that will prejudicially affect a channel provider or
anyone with an interest in the copyright in either an encoded broadcast or the content of
an encoded broadcast”
This fault element occurs in two forms in the importation offence in 135ASE(1)(a)(vii) and the
distribution offence in s 132ASF(1)(a)(iii). The equivalent offences under s 132AH and s 132AI limit
the class of people affected prejudicially only to the owners of the copyright subsisting in the
infringing copy. 895 Here there are a number of persons that are capable of falling within the class of
affected parties. Expressly stated is the channel provider, who is defined in s 132AL 896as a person
who:
(1) packages a channel; and
(2) supplies a broadcaster with the channel; and
(3) carries on a business that involves the supply of the channel; where apart from any breaks in
the transmission of incidental matter, the channel is broadcast as part of an encoded
broadcast service.
Copyright owners and licensees of the encoded broadcast 897 would also be included in the class of
persons affected, as would copyright owners and their licensees of the copyright material in the
broadcast.

894

See generally: R v Bull (1974) 131 CLR 203; R v Campbell (2008) 73 NSWLR 272; R v Toe [2010] SASC 39
Copyright Act 1968 (Cth) ss 132AH(1)(a)(vii), (3)(a)(vii), (5)(a)(vii), 132AI(2)(d) and (5)(d)
896
Copyright Act 1968 (Cth) s 135AL “channel provider”
897
Copyright Act 1968 (Cth) s 87
895

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