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Key Takeaways

What is the Penalty If I Refuse to Give Police My Password?
It is an offence for a person subject to a digital evidence access order to refuse or fail to provide their phone or computer password, without a reasonable excuse, or to provide false or misleading information, whilst purporting to comply with the order. A maximum penalty of $11,000 fine and/or 5 years imprisonment applies, prescribed by section 76AO of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

The NSW Government has introduced new laws expanding state police powers by creating a new tool for officers to access digital evidence in connection with search warrants and crime scene warrants.

The member who introduced the bill, Deputy Premier and Minister for Police, Paul Toole explained that there are currently limited options available for officers to require an owner or person with knowledge of an electronic device to disclose passwords or codes to enable access to that device.

“It is a reality of modern criminal investigations that our law enforcement will encounter digital devices of interest when they are conducting searches as part of investigating suspected criminal activity.

Unlike hard-copy documents, like a journal or handwritten letters, when such a device is detected, it is not uncommon for these devices to be protected by a password, an access key, Face ID, or some other protection.” noted Toole.

The new powers provided set up a regime in which new digital evidence access orders can be issued to accompany warrants, directing persons to provide passwords and assistance within accessing relevant devices.

It essentially brings the state in line with Commonwealth legislation, which was recently amended to allow NSW police to direct a person to provide access to a device where relevant to NSW offences with a federal aspect, but not for purely NSW offences.

The Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Act 2022 (NSW) amends the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) to provide officers the ability to issue digital evidence access orders.

The new laws commenced on 1 February 2023.

Digital evidence access orders will enable certain law enforcement officers to issue directions requiring a person to assist the officer to access a device, such as by providing passwords.

It may also require a person to provide the officer with any information or assistance reasonable and necessary to allow the officer to copy data from a device or convert the data into documentary form or another form intelligible to a computer, used by the officer.

Here is more on when can police take your phone.

What is the Penalty If I Refuse to Give Police My Password?

It is an offence for a person subject to an order to not comply, without a reasonable excuse, or to provide false or misleading information, whilst purporting to comply with the order.

A maximum penalty of a $11,000 fine and/or 5 years imprisonment is applicable, as per section 76AO.

This section also outlines that a reasonable excuse does not include refusing on the grounds that complying with the order would be incriminating, thus overriding the common law privilege against self-incrimination.

The orders must accompany another warrant and may be issued in relation to any search or crime scene warrants under the Act, as outlined in section 76AA.

Any NSW police officer or NSW Crime Commission executive officer can apply for a digital evidence access order from an eligible issuing officer.

What will constitute a ‘eligible issuing officer’ will depend upon the type of warrant the proposed order would accompany and may be a Judge or merely another authorised police officer.

Section 76AF details the factors that are required to be present when applying a digital evidence access order, including:

  • details of the search warrant or crime scene warrant to which the application is connected,
  • details of the person in relation to whom it is proposed the order will be issued, and
  • particulars of the grounds on which the application is based, including the grounds for suspecting evidence is held on or accessible via a computer.

However, an applicant is not required to disclose the identity of any person from whom information was obtained, if the applicant is satisfied that the disclosure might jeopardise the safety of any person.

The Act prescribes that it is an offence for an officer applying for an order to provide false or misleading information to obtain one, which carries a maximum penalty of a $11,000 fine and/or 2 years imprisonment, as per section 76AG.

Published on 20/02/2023

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin