Dedicated Encrypted Criminal Communication Device Prohibition Orders Act 2022

This Act is the Dedicated Encrypted Criminal Communication Device Prohibition Orders Act 2022.

This Act commences on 1 February 2023.

The Dictionary in Schedule 1 defines words and expressions used in this Act.

Note—

The Interpretation Act 1987 also contains definitions and other provisions that affect the interpretation and application of this Act.

The purpose of a dedicated encrypted criminal communication device prohibition order is to provide an investigative tool for police investigating the involvement of the subject of the order in criminal activity involving dedicated encrypted criminal communication devices.

If a dedicated encrypted criminal communication device prohibition order is in force against a person, a police officer may, without a warrant, do one or more of the following for the purpose of determining whether the person is in possession of a dedicated encrypted criminal communication device—

stop, detain and search the person but not another person,

enter and search the following premises (searchable premises)—

premises at which the person resides,

premises the police officer reasonably suspects are owned by the person or under the direct control or management of the person,

premises the police officer reasonably suspects are being used by the person for an unlawful purpose,

stop, detain and search a vehicle—

being driven by or otherwise under the control or management of the person or occupied by the person, or

parked on an area that is part of, or provided for the use of, searchable premises, but not if the area is shared with another dwelling or other premises, or

parked on an area that is part of, or provided for the use of, searchable premises and that is shared with another dwelling or other premises, but only if the police officer reasonably suspects that the vehicle is being used by the person for an unlawful purpose,

give a direction under section 6,

use electronic equipment to inspect or search a computer identified during a search conducted under paragraph (a)–(c).

The Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search carried out under this Act.

Note—

See that Act, section 32 and Part 15 for additional limitations on the exercise of the powers under this section.

Despite subsection (2), a strip search of a person must not be carried out when exercising a power under this section unless it is authorised under the Law Enforcement (Powers and Responsibilities) Act 2002, Part 4, Division 4.

For section 5(1)(d), a police officer exercising a power under section 5 may give a direction to a person against whom a dedicated encrypted criminal communication device prohibition order is in force to give a police officer information or assistance that is reasonable and necessary to view, or enable access to, data held in or accessible from—

a computer identified during the search that the police officer has reasonable grounds to suspect is a dedicated encrypted criminal communication device, or

a computer seized under the dedicated encrypted criminal communication device prohibition order that the police officer has reasonable grounds to suspect is a dedicated encrypted criminal communication device.

A person given a direction under subsection (1)(a) or (b) must not, without reasonable excuse, fail to comply with the direction.

Maximum penalty—Imprisonment for 3 years.

Without limiting subsection (2), it is not a reasonable excuse for a person given a direction under subsection (1)(a) or (b) to fail to comply with the direction on the ground that complying with the direction or the requirement would tend to incriminate the person or otherwise expose the person to a penalty.

A police officer may, in the exercise of powers under section 5, seize and detain all or part of a thing the police officer suspects on reasonable grounds—

may provide evidence of the commission of an offence involving a dedicated encrypted criminal communication device, or

is stolen or otherwise unlawfully obtained, or

may provide evidence of the commission of a relevant offence within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002, Part 4, Division 1, or

is a dangerous article within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002.

The Commissioner of Police must ensure the subject of a dedicated encrypted criminal communication device prohibition order is given written notice about a search as soon as practicable after the search if—

a police officer searches premises or a vehicle under the order, and

the subject of the order is not present during the search.

A notice under subsection (1) must specify—

the date on which the search took place, and

the address or other description of the premises or vehicle searched.

A police officer, or another person on the police officer’s behalf, may apply to an authorised judge for a dedicated encrypted criminal communication device prohibition order to be made against an eligible person.

The application may be made only if—

the police officer reasonably believes the eligible person is likely to use a dedicated encrypted criminal communication device to avoid law enforcement detection of criminal activity, and

the application has been approved by a senior police officer.

The application must not be made within—

2 weeks after an authorised judge has refused to grant a previous application against the eligible person, unless it contains material evidence or information not included in the previous application, or

6 months after the revocation of a dedicated encrypted criminal communication device prohibition order against the eligible person.

An application for a dedicated encrypted criminal communication device prohibition order must be in the form of an affidavit that—

states the identity of the eligible person, and

if the eligible person has been convicted of serious criminal offences—sets out details of each of the convictions, and

sets out the grounds on which the dedicated encrypted criminal communication device prohibition order is sought, and

includes evidence that the eligible person is likely to use a dedicated encrypted criminal communication device to avoid law enforcement detection of criminal activity, and

sets out details of any dedicated encrypted criminal communication device prohibition orders that have been made in relation to the eligible person, and

states the identity of any other persons, so far as is reasonably practicably known, who may be adversely affected by the order, and

includes any information known to the applicant that may be adverse to the application or, if no adverse information is known, a statement to that effect, and

specifies the period for which the dedicated encrypted criminal communication device prohibition order is sought.

The application must be accompanied by a document signed by a senior police officer authorising the applicant to seek the dedicated encrypted criminal communication device prohibition order against the eligible person.

The Commissioner of Police must ensure the oversight commissioner is given a notice containing the information set out in—

an application for a dedicated encrypted criminal communication device prohibition order, and

the document that accompanies the application.

The notice must be given as far in advance of the application being made as is reasonably practicable.

After deciding the application, the authorised judge must ensure that the application and accompanying document are forwarded to the oversight commissioner.

The oversight commissioner must keep the application and accompanying document in a way that ensures they are not accessible to anyone who is not authorised to have access to them.

An authorised judge may make a dedicated encrypted criminal communication device prohibition order against a person if the judge is satisfied the person—

is an eligible person, and

is likely to use a dedicated encrypted criminal communication device to avoid law enforcement detection of criminal activity.

The authorised judge—

must not make a dedicated encrypted criminal communication device prohibition order unless satisfied the oversight commissioner has been given a reasonable opportunity to make a submission in relation to the making of the order, and

may ask the oversight commissioner for advice on any matter relating to the application or the making of the order.