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Possessing, Selling, Manufacturing or Advertising an Interception Device

Possessing, Selling, Manufacturing or Advertising an Interception Device is an offence under section 474.4 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 5 years in prison.

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

  1. You possessed, sold, manufactured, advertised, displayed or offered for sale an item, and
  2. The item was an interception device, whether assembled or unassembled.

An interception device is any electronic, mechanical, or electromagnetic instrument, apparatus, equipment or other device that is used or is capable of being used to intercept a private communication.

This includes ‘wiretaps’ as well as GSM monitoring systems, repeaters and catchers

It does not include telephones, computers or other equipment or facilities used to transmit electronic or digital communications.

You are not guilty of possessing the device if you establish to the court ‘on the balance of probabilities’ that your conduct did not contravene section 7(1) of the Telecommunications (Interception and Access) Act 1979, which prohibits unauthorised interceptions.

The exception includes where you held a valid interception warrant or were otherwise authorised under the law to intercept communications.

You are not guilty of manufacturing, advertising or displaying the device if you establish to the court ‘on the balance of probabilities’ that you were authorised under the law to do so.

Duress and necessity are defences to the charge.

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