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  • Writer's pictureGeoff Harrison

Encrypted Devices & Orders

Updated: Nov 25, 2023


Encrypted Devices Prohibition Order, Criminal Barrister, Criminal Solictor, Criminal Lawyer

Published by Geoff Harrison | 6 November 2023


A Dedicated Encrypted Criminal Communication Device ('DECCD' is defined in s192O of the Crimes Act 1900) is essentially any mobile electronic device that allows for encrypted communication for the commission of serious criminal offences. A DECCD prohibition order can be made against an eligible person. An eligible person is a person who has been convicted of a serious criminal offence (as defined below) and is 18 years of age. An order can be made by a magistrate without the knowledge of the person for a period of between 6 months and up to 2 years. If an order is made police are able to search the person and/or their premises for a dedicated encrypted criminal communication device (as defined by s192O of the Crimes Act 1900).


A person commits an offence under s192P of the Crimes Act 1900 if, the person possesses a dedicated encrypted criminal communication device, and there are reasonable grounds to suspect the possession of the dedicated encrypted criminal communication device was to commit or facilitate serious criminal activity. The maximum penalty is 3 years imprisonment.


Police can also apply for a DECCD access order under Part 5A of the Law Enforcement (Powers and Responsibilities) Act 2002 ('the Act'). An access order can remain in place for 7 days. It is an offence against s80O of the Act if a relevant person fails to comply (without reasonable excuse) with a direction for a DECC access order. 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 complying with the direction may tend to incriminate the person (s80O(2) of the Act).


Other Sources:


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Extracted Legislation:



DEDICATED ENCRYPTED CRIMINAL COMMUNICATION DEVICE PROHIBITION ORDERS ACT 2022 - SECT 4

Purpose of dedicated encrypted criminal communication device prohibition orders


The purpose of a dedicated encrypted criminal communication device prohibition order is to provide an investigative tool for police investigating the involvement of the subject of the order in criminal activity involving dedicated encrypted criminal communication devices.


DEDICATED ENCRYPTED CRIMINAL COMMUNICATION DEVICE PROHIBITION ORDERS ACT 2022 - SECT 5

Entry and search powers under dedicated encrypted criminal communication device prohibition orders


(1) If a dedicated encrypted criminal communication device prohibition order is in force against a person, a police officer may, without a warrant, do one or more of the following for the purpose of determining whether the person is in possession of a dedicated encrypted criminal communication device--

(a) stop, detain and search the person but not another person,

(b) enter and search the following premises (

"searchable premises" )--

(i) premises at which the person resides,

(ii) premises the police officer reasonably suspects are owned by the person or under the direct control or management of the person,

(iii) premises the police officer reasonably suspects are being used by the person for an unlawful purpose,

(c) stop, detain and search a vehicle--

(i) being driven by or otherwise under the control or management of the person or occupied by the person, or

(ii) parked on an area that is part of, or provided for the use of, searchable premises, but not if the area is shared with another dwelling or other premises, or

(iii) parked on an area that is part of, or provided for the use of, searchable premises and that is shared with another dwelling or other premises, but only if the police officer reasonably suspects that the vehicle is being used by the person for an unlawful purpose,

(d) give a direction under section 6,

(e) use electronic equipment to inspect or search a computer identified during a search conducted under paragraph (a)-(c).


(2) The Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search carried out under this Act.

Note--: See that Act, section 32 and Part 15 for additional limitations on the exercise of the powers under this section.

(3) Despite subsection (2), a strip search of a person must not be carried out when exercising a power under this section unless it is authorised under the Law Enforcement (Powers and Responsibilities) Act 2002 , Part 4, Division 4.


DEDICATED ENCRYPTED CRIMINAL COMMUNICATION DEVICE PROHIBITION ORDERS ACT 2022 - SECT 6

Power to give directions


(1) For section 5(1)(d), a police officer exercising a power under section 5 may give a direction to a person against whom a dedicated encrypted criminal communication device prohibition order is in force to give a police officer information or assistance that is reasonable and necessary to view, or enable access to, data held in or accessible from--

(a) a computer identified during the search that the police officer has reasonable grounds to suspect is a dedicated encrypted criminal communication device, or

(b) a computer seized under the dedicated encrypted criminal communication device prohibition order that the police officer has reasonable grounds to suspect is a dedicated encrypted criminal communication device.


(2) A person given a direction under subsection (1)(a) or (b) must not, without reasonable excuse, fail to comply with the direction.

Maximum penalty--Imprisonment for 3 years.


(3) Without limiting subsection (2), it is not a reasonable excuse for a person given a direction under subsection (1)(a) or (b) to fail to comply with the direction on the ground that complying with the direction or the requirement would tend to incriminate the person or otherwise expose the person to a penalty.


DEDICATED ENCRYPTED CRIMINAL COMMUNICATION DEVICE PROHIBITION ORDERS ACT 2022 - SECT 7

Seizure etc powers under dedicated encrypted criminal communication device prohibition orders


A police officer may, in the exercise of powers under section 5, seize and detain all or part of a thing the police officer suspects on reasonable grounds--


(a) may provide evidence of the commission of an offence involving a dedicated encrypted criminal communication device, or

(b) is stolen or otherwise unlawfully obtained, or

(c) may provide evidence of the commission of a relevant offence within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002, Part 4, Division 1, or

(d) is a dangerous article within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002.


DEDICATED ENCRYPTED CRIMINAL COMMUNICATION DEVICE PROHIBITION ORDERS ACT 2022 - SECT 8

Requirement to give notice about searches in certain circumstances


(1) The Commissioner of Police must ensure the subject of a dedicated encrypted criminal communication device prohibition order is given written notice about a search as soon as practicable after the search if--

(a) a police officer searches premises or a vehicle under the order, and

(b) the subject of the order is not present during the search.

(2) A notice under subsection (1) must specify--

(a) the date on which the search took place, and

(b) the address or other description of the premises or vehicle searched.



DEDICATED ENCRYPTED CRIMINAL COMMUNICATION DEVICE PROHIBITION ORDERS ACT 2022 - SECT 9

Application for prohibition order



(1) A police officer, or another person on the police officer's behalf, may apply to an authorised magistrate for a dedicated encrypted criminal communication device prohibition order to be made against an eligible person.


(2) The application may be made only if--

(a) the police officer reasonably believes the eligible person is likely to use a dedicated encrypted criminal communication device to avoid law enforcement detection of criminal activity, and

(b) the application has been approved by a senior police officer.


(3) The application must not be made within--

(a) 2 weeks after an authorised magistrate has refused to grant a previous application against the eligible person, unless it contains material evidence or information not included in the previous application, or

(b) 6 months after the revocation of a dedicated encrypted criminal communication device prohibition order against the eligible person.


DEDICATED ENCRYPTED CRIMINAL COMMUNICATION DEVICE PROHIBITION ORDERS ACT 2022 - SECT 14

Process for making dedicated encrypted criminal communication device prohibition orders


(1) The person who is to be the subject of the dedicated encrypted criminal communication device prohibition order--

(a) is not entitled to be told about the application, and

(b) is not permitted to make a submission.

(2) The application is not required to be decided in a courtroom.

(3) The authorised magistrate may question, or ask for additional information about an application from, a police officer with knowledge of the application or the oversight commissioner--

(a) at any time, and

(b) in any way the authorised magistrate considers appropriate, including by audio link or audio visual link.

(4) A dedicated encrypted criminal communication device prohibition order--

(a) must not be made against a person when sentencing the person for an offence, and

(b) must instead be the subject of a separate application made in accordance with this Act.

(5) In this section--



"audio link" means technology that enables continuous and contemporaneous audio communication between persons at different places, including telephones.



"audio visual link" means technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing.


DEDICATED ENCRYPTED CRIMINAL COMMUNICATION DEVICE PROHIBITION ORDERS ACT 2022 - SECT 17

Commencement and duration of dedicated encrypted criminal communication device prohibition order


(1) A dedicated encrypted criminal communication device prohibition order commences when it is made.


(2) No power may be exercised under a dedicated encrypted criminal communication device prohibition order before a copy of the order has been served--

(a) personally on the subject of the order, or

(b) in accordance with section 18.


(3) A dedicated encrypted criminal communication device prohibition order remains in force until the earlier of the following--

(a) the end of the period specified by the authorised magistrate as the period for the order,

(b) the end of the period specified by a magistrate deciding an application for revocation of the order,

(c) the order is revoked.


(4) For subsection (3)(a), the period must not be--

(a) less than 6 months, or

(b) more than 2 years.


(5) The Commissioner of Police must ensure a record is kept of the date on which a dedicated encrypted criminal communication device prohibition order is served on the subject of the order.


Definitions:


"dedicated encrypted criminal communication device" has the same meaning as in the Crimes Act 1900, section 192O (below).


"eligible person" means a person who--

(a) has been convicted of a serious criminal offence, and

(b) is at least 18 years of age on the application day.


"serious criminal offence" means--

(a) a serious violence offence within the meaning of the Crimes Act 1900, section 93S(1), or

(b) an offence under the Crimes Act 1900, Part 3A, Division 5, or

(c) a money laundering offence under the Crimes Act 1900, Part 4AC, or

(d) a serious drug offence within the meaning of the Drug Supply Prohibition Order Pilot Scheme Act 2020, or

(e) an offence under the Crimes Act 1900, section 192P, or

(f) an offence under the Firearms Act 1996, section 51, 51B, 51BA or 51BB, or

(g) an offence under the Weapons Prohibition Act 1998, section 23A or 23B, or

(h) a serious Commonwealth offence within the meaning of the Crimes Act 1914 of the Commonwealth, section 15GE, or

(i) an offence under a law of a foreign jurisdiction that is prescribed by the regulations to be a serious criminal offence for this Act.


CRIMES ACT 1900 - SECT 192O

Meaning of "dedicated encrypted criminal communication device"


(1) For this Part, a

"dedicated encrypted criminal communication device" means a mobile electronic device that--

(a) is specifically designed or equipped for use to facilitate communication, between persons reasonably suspected of being involved in serious criminal activity, to defeat law enforcement detection, and

(b) uses hardware modifications or software deployed on the device that--

(i) modifies the device's factory operating system, whether temporarily or permanently to block or replace key features usually available on the device's operating system, including, for example, voice call, web browsers or geolocation services, and

(ii) enables encryption of communication between users, and

(c) is configured in a way that specifically impedes law enforcement access to information on the device.

Example for paragraph (c)--:

• a duress password or PIN that will wipe data on the device

• use of a mobile service that is not able to be traced to an individual

• appears to be mobile phone that does not have an International Mobile Station Equipment Identity number


(2) A dedicated encrypted criminal communication device includes a device prescribed by the regulations for the purposes of this section.


(3) A dedicated encrypted criminal communication device does not include--

(a) a device if--

(i) the device has been designed, modified or equipped with software or security features, and

(ii) a reasonable person would consider the software or security features have been applied for a primary purpose other than facilitating communication between persons involved in criminal activity to defeat law enforcement detection, or

(b) a device of a kind prescribed by the regulations as not being a dedicated encrypted criminal communication device.


CRIMES ACT 1900 - SECT 192P

Possession of dedicated encrypted criminal communication devices for certain purposes


(1) A person commits an offence if--

(a) the person possesses a dedicated encrypted criminal communication device, and

(b) there are reasonable grounds to suspect the possession of the dedicated encrypted criminal communication device was to commit or facilitate serious criminal activity.

Maximum penalty--Imprisonment for 3 years.


(2) Without limiting subsection (1)(b), matters that may be considered in determining whether there are reasonable grounds to suspect the possession of the dedicated encrypted criminal communication device to commit or facilitate a serious criminal activity include the following--

(a) a service attached to the dedicated encrypted criminal communication device is in a false name,

(b) the dedicated encrypted criminal communication device was purchased or obtained from--

(i) a criminal network, or

(ii) a person who is reasonably suspected of supplying dedicated encrypted criminal communication devices to persons involved in criminal activity,

(c) a person is in possession of indications of drug supply,

(d) contemporaneous possession of prohibited firearms,

(e) contemporaneous possession of child abuse material.


(3) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had possession of the dedicated encrypted criminal communication device--

(a) in the ordinary course of the defendant's duties as an officer, employee or agent of a government agency or public authority, or

(b) to supply to, or in partnership or agreement with, a government agency.

(4) To avoid doubt, for subsection (3)(a) and (b), a government agency includes--

(a) a government agency of this State, and

(b) a government agency of the Commonwealth or another State or a Territory.


CRIMES ACT 1900 - SECT 192Q

Proof of particular offence not required


To avoid doubt, it is not necessary for the purposes of the offence in section 192P(1) for the prosecution to prove that a particular offence was being committed or planned to be committed using the dedicated encrypted criminal communication device.


LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 80B

General matters for applications for DECCD access orders


A police officer may apply to a Magistrate for a DECCD access order if the police officer--


(a) has reasonable grounds to suspect the person specified in the order is--

(i) in possession of a device suspected of being a dedicated encrypted criminal communication device, and

(ii) committing a DECCD offence, and

(b) considers the making of the DECCD access order will assist law enforcement in determining whether the device is a dedicated encrypted criminal communication device.


LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 80C

Applications for DECCD access orders in person


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


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


(3) A Magistrate must not issue a DECCD access order under this section unless the information given by the applicant in or in connection with the application is verified before the Magistrate--

(a) on oath or affirmation, or

(b) by affidavit.


(4) A Magistrate may administer an oath or affirmation or take an affidavit for the purposes of an application for a DECCD access order.


LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 80L

Term of DECCD access order


A DECCD access order remains in force for a period of 7 business days after it is issued.


LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 80O

Failure to comply with DECCD access order


(1) A relevant person for a DECCD access order must not, without reasonable excuse--

(a) fail to comply with a direction given by the executing officer for the order, in accordance with 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 relevant person for a DECCD 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.






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