Failure to Comply with a Dedicated Encrypted Criminal Communication Device Access Order

Failure to comply with a dedicated encrypted criminal communication device access order, or DECCD access order, is an offence under section 80O of the Law Enforcement (Powers and Responsibilities) Act 2002 which carries a maximum penalty of 5 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You were a relevant person for the purposes of a DECCD access order, and
2. You failed to comply with a lawful direction given under the order by an executing officer, or

You gave an executing officer information that was false or misleading in a material particular in purported compliance with the order without informing the officer that the information was false or misleading, and

A ‘relevant person’ is a person to whom a DECCD access order applies.

A DECCD is defined by section 192O of the Crimes Act 1900 as a mobile electronic device that:

1. Is specifically designed or equipped to facilitate communication between persons who are reasonably suspected of being involved in serious criminal activity, to defeat law enforcement detection, 
2. Uses hardware modifications or software deployed on the device that: (a) Temporarily or permanently modifies the device’s factory operating system to block or replace key features usually available on the device’s operating system, and
3. enables encryption of communication between users, and
4. Is configured in a way that specifically impedes law enforcement access to information on the device.

Examples of key features usually available on a device may include voice call, web browser and geolocation services.

Examples of configurations intended to impede law enforcement may include:

• Installing a duress PIN or password that wipes data on a device,
• Using a mobile service that is unable to trace to a particular individual, and
• Ensuring a mobile phone does not have an International Mobile Station Equipment Identification Number, or IMSEIN.

‘Serious criminal activity’ is defined as:

• An offence punishable by at least 5 years in prison or obtaining material benefits from such conduct, or
• An offence designated by the Criminal Assets Recovery Act 1990 as a serious criminal offence.

Applications for DECCD access orders are made under Part 5A, Division 2 of the LEPRA.

A ‘reasonable excuse’ for not complying with a DECCD access order does not include the fact that complying would tend to incriminate you or otherwise expose you to a penalty.

You are not guilty of the offence of failing to comply with a DECCD if you establish, on the balance of probabilities, that you had a reasonable excuse for your conduct.

General legal defences to the offence include duress, necessity and self-defence.

If you are able to raise evidence of a general legal defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply to the circumstances of the case.

You are entitled to an acquittal if the prosecution is unable to do this.