On 1 February 2023, new laws commenced that permit police officers attached to the New South Wales Police Force to access digital evidence in connection with search warrants and crime scene warrants.
The legislation, known as the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Act 2022 (NSW) expands the powers of law enforcement by creating a new tool for officers to access digital evidence.
This move comes in response to the limited options currently available for officers to require owners or persons with knowledge of electronic devices to disclose passwords or codes to enable access to that device.
Modern criminal investigations often encounter digital devices of interest when searching for suspected criminal activity. Unlike hard-copy documents, such as journals or handwritten letters, these devices are often protected by passwords, access keys, Face ID, or some other protection.
Deputy Premier and Minister for Police, Paul Toole, noted that the new powers provided by the legislation set up a regime in which new digital evidence access orders can be issued to accompany warrants, directing persons to provide passwords and assistance with accessing relevant devices.
It is intended that authorised officers will consider digital evidence access order applications under similar arrangements as they currently consider search warrants. This means applications will be considered ex parte and are not required to be heard in a courtroom.
The legislation brings the New South Wales in line with the Commonwealth legislation, which was recently amended to allow NSW police to direct a person to provide access to a device relevant to NSW offences with a federal aspect, but not for purely NSW offences.
Digital Evidence Access Order
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.
IS THERE A PENALTY IF I REFUSE TO GIVE POLICE MY PASSWORD IN NSW?
Penalties for non-compliance with digital evidence access orders can result in a $11,000 fine and/or 5 years imprisonment if a person refuses to comply without reasonable excuse or provides false or misleading information while purporting to comply with the order.
Parliament has also legislated (Section 76AO(2) of LEPRA) that refusing on the grounds that complying with the order would be incriminating does not constitute a reasonable excuse and overrides 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, which may be a Judge or another authorised police officer (Inspector or above).
When applying for a digital evidence access order, an applicant must provide 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, the 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.
False or misleading information provided by an officer applying for an order is an offence that carries a maximum penalty of a $11,000 fine and/or 2 years imprisonment, as per section 76AG. The eligibility of the issuing officer depends upon the type of warrant the proposed order would accompany.
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