Obviously, the NSW Police Force has been whispering into police minister Paul Toole’s ear about its officers not having enough powers when policing the general public, as the Perrottet government has just passed a plethora of bills to placate its chief ally right before it’s about to lose office.
As Toole explained in parliament, officers only have a limited means of acquiring access to an electronic device when executing a warrant and state cops want the same powers the feds have in being able to threaten prison time if a suspect doesn’t provide the necessary details to open one.
Passed on 13 October, the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2022 does just that. It sets up a regime where new digital evidence access orders can be issued to accompany warrants and bust through passwords and encryption.
“Recent legislative amendments at the Commonwealth level that allow NSW police to direct a person to provide access to a device apply to NSW offences with a federal aspect but do not apply to purely NSW offences,” explained Toole during his second reading speech.
In terms of the subject’s rights, the bill overrides the common law privilege against self-incrimination, while it also creates a serious indictable offence to temper noncompliance. Yet, if an officer provides false information to obtain an order, they only get slapped with a summary offence.
Too low a bar
“The Digital Evidence Access Orders Bill empowers the police to unilaterally issue directions requiring a person to assist an investigating officer to access the device, such as by providing passwords or other access codes,” said NSW Greens MLC Sue Higginson.
“Accessing computers should be reserved for special cases requiring a greater level of scrutiny and privacy safeguards than other search warrants,” the Greens justice spokesperson told Sydney Criminal Lawyers.
The lawyer lists three reasons why orders requiring a subject provide access to a computer should be treated more cautiously. These include the privilege against self-incrimination, that a whole range of information unrelated to an investigation is accessible, and that some of that may be privileged.
In using the term computer, Higginson reflects the legislation. However, the definition of computer in the bill states it’s “an electronic device for storing, processing or transferring information”, which would seem to leave it open to broad interpretation, including smartphones.
“Accessing electronic devices, such as computers, has significant privacy concerns,” Higginson added, “including the potential for manipulation and fraud which may not be justified in many cases and can affect innocent third parties.”
The Digital Evidence Access Bill inserts new division 4A into part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA). This section of the legislation covers police search and seizure powers under the authority of a warrant.
New section 76AA of the LEPRA outlines that a digital evidence access order may be issued in relation to any search or crime scene warrants under the LEPRA, as well as eight other pieces of legislation, including proceeds of crime laws and the Crime Commission Act 2012 (NSW).
Any NSW police officer or a NSW Crime Commission executive officer can apply for a digital evidence access order from an eligible issuing officer, which, depending on the type of warrant it accompanies, can be a judge or an authorised officer.
The details that should be presented when applying for a digital evidence access order are set out in new section 76AF and they must include the “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, there’s no requirement when making an application for such an order “to disclose the identity of a person from whom information was obtained if the applicant is satisfied the disclosure might jeopardise the safety of any person”.
The next section, 76AG, makes it an offence for an officer applying for a digital evidence access order to provide false or misleading information in order to obtain one. This is a crime that carries up to 2 years inside and/or an $11,000 fine.
And new section 76AO makes failure to comply with a digital evidence access order, without a reasonable excuse, or the provision of false or misleading information purported to be in compliance with the order, an offence carrying up to 5 years in gaol and/or $11,000 fine.
This section also underscores that a reasonable excuse does not include exercising the subject’s privilege against self-incrimination.
In the public interest
The digital access bill was released with two other related pieces of legislation: one which strengthened money laundering laws, and another that criminalises the possession of encrypted messaging devices when they’re being used for illegal purposes.
Interestingly, each of these bills came with an accompanying statement from the NSW government, linked to the parliament website, explaining the public interest reasons as to why these new laws were needed, which is a new addition to the practice of passing criminal laws.
The NSW Government Digital Access Bill statement of public interest outlines that while the LEPRA already contains laws that presuppose officers will be searching electronic devices whilst executing a warrant, they aren’t detailed enough to provide the ability to get around passwords.
The statement then posits that it’s in the public interest to solve crimes, and this includes being able to access evidence. The government further asserts that when an investigation already warrants a search of a premises, it makes it especially pertinent to be able to gain entry into electronic devices.
According to Higginson, the broadening of police powers has been mounting over the last decade, as the Liberal Nationals government has gradually been transforming NSW into a police state, one bill at a time. And she warns that the new swag of laws wasn’t even given proper scrutiny.
“Such large changes to criminal laws should have been properly reviewed by the Legislative Council through an inquiry,” she concluded, “but the government and opposition are not interested in doing any more inquiries because they are more interested in the upcoming election.”