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Unauthorised impairment of an electronic communication is an offence under section 308E of the Crimes Act 1900, which carries a maximum penalty of 10 years in prison.

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

  1. You caused the impairment of an electronic communication to or from a computer
  2. You were not authorised to do so
  3. You knew you were not authorised to do so, and
  4. Your intention was to impair the electronic communication or you were reckless as to any such impairment.

‘Impairment’ of an electronic communication means:

  1. The prevention of any such communication, or
  2. The impairment of any such communication on an electronic link or network.

‘Impairment’ does not include the mere interception of a communication.

An ‘electronic communication’ is a communication of information in any form by means of guided or unguided electromagnetic energy.

You were not ‘authorised’ to impair the communication if you were not entitled to cause it, however, your actions are not unauthorised merely because you had an ulterior motive for them, or if:

  1. You were an ‘authorised person’ such as a police or other law enforcement officer
  2. The relevant computer or device was in your lawful custody, and
  3. Your actions were to preserve, or to prevent the concealment, fabrication, destruction or loss of, evidence of any offence.

You were ‘reckless’ if you foresaw the possibility of impairing the communication, but went ahead with your actions regardless.

Duress is a defence to the charge.