What are Dedicated Encrypted Criminal Communication Device Prohibition Orders?
What are Dedicated Encrypted Criminal Communication Device Prohibition Orders?
On 1 February 2023, the Dedicated Encrypted Criminal Communication Device Prohibition Orders Act 2022 (‘DECCD Act’) was introduced providing the New South Wales Police Force with the power to apply for a DECCD Order where they suspect that Dedicated Encrypted Criminal Communication Device is being used to facilitate serious criminal activity.
Once an Order is granted by a Magistrate, DECCD Orders give police increased powers to enter and search premises without a warrant for the purpose of seizing a Dedicated Encrypted Criminal Communication Device. Police can then charge a person found to be in possession of a DECCD.
Operation Ironside, led by the Australian Federal Police, was a huge investigation which uncovered widespread use of encrypted devices to support criminal activity and organised crime. The introduction of the new legislation was done so as a response by government to that investigation enabling police increased powers to search without warrants and charge individuals.
What is a Dedicated Encrypted Criminal Communication Device?
The Crimes Act defines a DECCD as:
(a) A mobile electronic device that is specifically designed or equipped for use to facilitate communication between persons reasonable suspected of being involved in serious criminal activity to defeat law enforcement detection, and
(b) uses hardware modifications or software deployed on the divide that:
(i) modifies the device’s factory operating system, temporarily or permanently to block or replace key features like voice calls, 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 the information on the device.
How do police obtain a DECCD order?
An application for a DECCD Order can be made by a police officer if the officer reasonably believes that the person or suspect has a DECCD in their possession. That application must first be approved by a senior police officer.
The DECCD application must then be made to a Magistrate. The magistrate must be satisfied on the evidence that the person named by police in the application is likely to use a DECCD to avoid law enforcement detection of criminal activity.
What is the new offence?
The DECCD Act creates a new offence under section 192P of the Crimes Act 1900 (NSW) of possession of a DECCD. The offence of possession of a DECCD to commit or facilitate serious criminal activity has a maximum penalty of 3 years imprisonment. Section 192P provides police with the power to charge individuals who have a DECCD in their possession in circumstances where there are reaonsable grounds to suspect the device is being used to commit or facilitate serious criminal activity.
What are ‘reasonable grounds to suspect’ and what is ‘serious criminal activity’?
Examples of what might amount to reasonable grounds, include:
The telco service attached to the DECCD is in a false name
A DECCD was purchased or obtained from:
A criminal network, or
A person who police reasonably suspect is involved in the supply of DECCDs
The person is also in posession of:
drug supply equipment
prohibited firearms, or
child abuse material.
Serious criminal activity is a reference to the commission of an offence where the maximum penalty is imprisonment of 5 years or more or as set out in the Criminal Assets Recovery Act 1990 (NSW). This includes offences like drug trafficking, firearms offences, child abuse material offences and money laundering.
Of note is that the prosecution does not have to prove that a particular offence was being committed or being planned through the use of the device - mere suspicion is enough.
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