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The NSW Government has introduced new laws targeting the use and possession of encrypted devices utilised by criminals to communicate with for the purposes of evading law enforcement.

Law enforcement and intelligence agencies have reported that criminal groups are increasingly utilising sophisticated methods to avoid detection, including via the use of such devices.

In introducing the bill, the Government referred to numerous recent law enforcement operations which have demonstrated the increasing reliance of criminal groups on encrypted communication.

What is a Dedicated Encrypted Criminal Communication Device?

A dedicated encrypted criminal communication device (‘DECCD’) is defined as a mobile electronic device that:

  • 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
  • uses hardware modifications or software deployed on the device which modifies its factory operating system, whether temporarily or permanently, to block or replace key features.

This includes blocking or replacing voice call, web browsers, geolocation services or enabling encryption of communication between users, for the purposes of impeding law enforcement access to information on the device.

Other examples include a device modified with a duress password or PIN that can wipe data on the device, the use of a mobile service that is not able to be traced to an individual, or without an ‘International Mobile Station Equipment Identity’ number.

Operation IRONSIDE

Operation IRONSIDE, led by the Australian Federal Police, resulted in over two hundred people being charged after their team developed a capability to see encrypted communications used exclusively by organised crime.

The communications revealed mass discussions regarding drug trafficking, gun distribution and plans to kill individuals, and led to 3.7 tonnes of drugs, 104 number of weapons, $44,934,457 million in cash being seized.

Through these operations the Government has confirmed that encrypted devices can be utilised to facilitate serious offending such as drug supply or importation, money laundering, trafficking firearms, murders or shootings, extortion offences, and kidnapping.

The member who introduced the bill, Deputy Premier and Minister for Police, Paul Toole has referred to the reforms as: “world-leading.”

“We expect them to send a strong message to organised crime that these dedicated criminal devices are not welcome in this State. One of the aims of these reforms is to stamp out the use of these devices…It will also be a good outcome if these laws disrupt the operations of organised crime and the sorts of devices they use.” explained Toole.

The Act will commence on 1 February 2023.

The Government has confirmed that the reforms will not inadvertently target any widely available encryption apps, such as WhatsApp or Signal, and instead seek to address emerging technology exclusively used to facilitate serious and organised crime.

“Criminals are constantly adapting, and they go to great lengths to hide their crimes. As they adapt, so too must our response.”he continued.

Possessing Dedicated Encrypted Criminal Communication Devices Laws and Penalties in NSW

The Dedicated Encrypted Criminal Communication Device Prohibition Orders Act 2022 (NSW) establishes a scheme prohibiting the possession dedicated encrypted criminal communication devices and providing for related offences.

The Act creates a new offence under the Crimes Act 1900 (NSW), prescribing that a person who possesses a DECCD, where there is reasonable grounds to suspect its possession was to commit or facilitate serious criminal activity, faces a maximum penalty of 3 years imprisonment.

When determining whether there are reasonable grounds to suspect that the device was possessed to commit or facilitate a serious criminal activity, the court may consider:

  • if a service attached to the device is in a false name,
  • if the device was purchased or obtained from a criminal network,
  • if a person was also in possession of:
    • indications of drug supply,
    • prohibited firearms or
    • child abuse material.

Serious criminal activity definition? Serious criminal activity refers to the commission of an offence punishable by imprisonment for 5 years or more, or as prescribed within the meaning of the Criminal Assets Recovery Act 1990 (NSW).

This Act lists numerous offences defined as a ‘serious criminal offence’ including those related to drug trafficking, slavery, money laundering, and firearms offences, among others.

It is not necessary for the prosecution to prove that a particular offence was being committed or planned to be committed using the device.

The Dedicated Encrypted Criminal Communication Device Prohibition Orders Act 2022 (NSW) also establishes a scheme for dedicated encrypted criminal communication device prohibition orders.

This scheme mimics the existing Firearm Prohibition Order scheme and Drug Supply Prohibition Order Pilot Scheme.

As per section 9, an eligible person may be subject to an order if a police officer reasonably believes the eligible person is likely to use a DECCD to avoid law enforcement detection of criminal activity.

An ‘eligible person’ means a person who is at least 18 years of age and has been convicted of a serious criminal offence.

A serious criminal offence is defined under the Act to include:

  • offences punishable by a term of 10 years or more, where the conduct constituting the offence involves loss of a person’s life, serious injury to a person, or serious damage to property in circumstances endangering the safety of any person,
  • offences related to participation in criminal groups,
  • money laundering offences,
  • serious drug offences, and
  • certain firearms and weapons offences, among others.

If granted by an Authorised Magistrate, the order enables officers to, without a warrant:

  • stop, detain, and search the person,
  • enter any premises occupied by or under the control or management of such a person, or
  • stop, detain, and search any vehicle occupied by or under their control or management.

The outlined powers must be performed with the purpose of determining whether the person is in possession of a DECCD.

When considering whether to impose a prohibition order, an Authorised Magistrate may consider the following:

  • the potential risk to public safety presented by the person,
  • whether the person associates with persons who are suspected to be involved in serious criminal activity,
  • criminal intelligence about the person’s suspected involvement in serious criminal activity or drug-related crime,
  • information from registered sources,
  • surveillance reports,
  • whether the person has cash or assets that are significantly out of proportion to the person’s income.

The order must be for at least 6 months, but not longer than 2 years.

Whilst a person subject to an order is not entitled to be told about the application and make submissions, when in force, they may apply to the Local Court to have the order revoked.

The Local Court may affirm, vary the terms of the order, or revoke it.

An order may only be revoked if the court is satisfied that it is onerous in the circumstances, that the subject of the order is not likely to use DECCD, or if the risk of the subject using a DECCD could be mitigated in another way.

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