top of page
Search
  • Writer's pictureGeoff Harrison

Digital Evidence Access Orders


Digital Evidence Access Order, Criminal Barrister, Criminal Solicitor, Criminal Lawyer

Published by Geoff Harrison | 25 November 2023


Police may apply under Division 4A of the Law Enforcement (Powers and Responsibilities) Act 2002 ('the Act') for a Digital Evidence Access Order in relation to a computer that is located during a search warrant or crime scene warrant. The relevant definitions under this division can be found here however, a computer, "means an electronic device for storing, processing or transferring information". Hence, a mobile phone would fall within this definition.


It is an offence as per s76AO of the Act for a specified person not to comply (without reasonable excuse) with a direction to provide information that enables the executing officer to access data that is on the computer. The maximum penalty is 100 penalty units ($11,000) and/or 5 years imprisonment. It is not a reasonable excuse to fail to comply with a direction on the basis that to do so would tend to incriminate the person (s76AO(2) of the Act).


Other Sources:

_____________________________________________________________________


Extracted Legislation:


LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 76AB

General matters for applications for digital evidence access orders


(1) An eligible applicant may apply for a digital evidence access order, in connection with the following warrants, for authority for an executing officer to issue a direction mentioned in section 76AM(1) in relation to a computer that may be found, or has been found, in the execution of the warrant--

(a) a search warrant,

(b) a crime scene warrant.


(2) An application for a digital evidence access order is made in connection with a search warrant or crime scene warrant if the application is made--

(a) in relation to a searchable offence--

(i) at the same time as the application for the search warrant for a searchable offence, or

(ii) after the search warrant for the searchable offence has been issued, whether before or after the warrant is executed, or


(b) in relation to an offence mentioned in section 94(1)(a) or (b)--

(i) at the same time as the application for the crime scene warrant for the offence, or

(ii) after the crime scene warrant for the offence has been issued, whether before or after the warrant is executed, or


(c) in relation to a matter being investigated under the Crime Commission Act 2012 --at the same time as the application for the search warrant or after the search warrant has been issued, whether before or after the warrant is executed, or


(d) in relation to a matter being investigated under the Independent Commission Against Corruption Act 1988 --at the same time as the application for the search warrant or after the search warrant has been issued, whether before or after the warrant is executed.


LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 76AC

Applications for digital evidence access orders in person


(1) An application for a digital evidence access order may be made in person.


(2) An application for a digital evidence access order made under this section must be in writing in the form prescribed by the regulations.


(3) An eligible issuing officer must not issue a digital evidence access order under this section unless the information given by the applicant in or in connection with the application is verified before the eligible issuing officer--

(a) on oath or affirmation, or

(b) by affidavit.


(4) An eligible issuing officer may administer an oath or affirmation or take an affidavit for the purposes of an application for a digital evidence access order.


LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 76AL

Term of digital evidence access order


(1) A digital evidence access order remains in force for a period of--

(a) for an order issued in connection with a covert search warrant--10 days after it is issued, or

(b) for any other order--7 business days after it is issued.


(2) A digital evidence access order may be extended by an authorised officer, on application by the executing officer, for no more than 3 additional periods of 7 business days.


(3) An application for a further digital evidence access order may be made in relation to the same computer.


LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 76AM

Effect of digital evidence access order


(1) The executing officer for a digital evidence access order may direct the specified person to--

(a) give the officer any information or assistance reasonable and necessary to enable the officer to access data held in or accessible from a computer specified in, or within the scope of, the order, or

(b) give the officer any information or assistance reasonable and necessary to allow the officer to--

(i) copy data from a computer specified in, or within the scope of, the order to another computer, or

(ii) convert the data into a documentary form or another form intelligible to a computer used by the officer.


(2) Without limiting subsection (1), the executing officer may require the specified person to provide reasonable and necessary assistance in accessing data on a computer that is secured by biometric means, including, for example, fingerprints or retina scans.


(3) To avoid doubt--

(a) information provided by a specified person under subsection (1) to access data held in or accessible from a computer may be used only for that purpose and no other purpose, and

(b) this section is subject to any other provision of this Act or another Act that provides for how a police officer may take particulars that are necessary to identify a person.

Note--: See, for example, Part 10, which provides for taking of identification particulars from persons in custody and other offenders, including section 136, which provides for identification particulars of children under the age of 14 years.


LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 76AO

Failure to comply with digital evidence access order


(1) A specified person for a digital evidence access order must not, without reasonable excuse--

(a) fail to comply with a direction given, in accordance with the order, by the executing officer for the order, or

(b) give the executing officer information that is false or misleading in a material particular in purported compliance with a direction given by the executing officer, unless the person informs the executing officer the information is false or misleading.

Maximum penalty--100 penalty units or imprisonment for 5 years, or both.


(2) Without limiting subsection (1), it is not a reasonable excuse for a specified person for a digital evidence access order to fail to comply with the order or a requirement made in accordance with the order on the ground that complying with the order or the requirement would tend to incriminate the person or otherwise expose the person to a penalty.

22 views0 comments

Recent Posts

See All

コメント

5つ星のうち0と評価されています。
まだ評価がありません

評価を追加
bottom of page