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Hindering a Carriage Service by Use or Operation of an Apparatus or Device

Hindering a carriage service by use or operation of an apparatus or device is an offence under section 476.6(5) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 2 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that

  1. You used or operated an apparatus or device, and
  2. Your conduct hindered the normal operation of a carriage service supplied by a carriage service provider.

A ‘carriage service’ is:

‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, which includes telephone calls, text messages and internet transmissions, such as emails and the use of social media sites.

A ‘carriage service provider’ is an organisation that supplies, or proposes to supply, a listed carriage service to the public using a network unit:

  1. Owned by one or more carriers, or
  2. In relation to which a nominated carrier declaration is in force, this includes companies such as Telstra, Vodafone and Optus.

You are not criminally responsible if you establish to the court ‘on the balance of probabilities’ that:

  1. You were a law enforcement, intelligence or security officer acting in good faith in the course of your duties, and
  2. Your conduct was reasonable in the circumstances for performing those duties, or your conduct was:
  1. In accordance with a technical assistance request
  2. In compliance with a technical assistance notice, or
  3. In compliance with a technical capability notice.

It is immaterial whether the apparatus or device was connected to or used in connection with a telecommunications network.

Duress and necessity are defences to the charge.

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