When can Police search your phone in Australia?

 

On August 25th, 2022, the Australian Government amended the Surveillance legislation on the identify and disrupt bill 2020. This change allows the Australian Federal Police (AFP) and Australian Criminal Intelligence Commission (ACIC) More rights to search and seize information on your mobile devices.

The significant changes with this amendment are new “reasonable suspicion” that law enforcement can use to justify searching your phone.

Data disruption warrants grant law enforcement the right to modify or delete of suspected offenders.

Network activity warrants allow police to collect intelligence about criminal networks.

Account takeover warrants give police permission to take control of online accounts on a suspected offenders mobile phone.

If questions like, ‘can police access your phone in Australia or can police search your phone in Australia’ are on your mind, continue reading for answers regarding your rights.

When can Police search your phone in Australia?

Understanding your rights when Police search your phone in Australia – what you need to know

Police is Australia can search your phone if they suspect you or your phone has been involved in a crime.

Under Criminal code 205A, Police officials can issue a warrant to search your phone. Criminal code 205A cites Sections 154 (1 and 2), 154A (2), and 178A (1) of the Police Powers and responsibilities Act 2000, and 88A (1) and 88B (2) of the Crime and Corruption Act 2001 as grounds.

Division 3 of the Law Enforcement (Powers and responsibilities) act 2002 states that Police may Seizer a mobile phone for seven days, or up to fourteen days if its seizure would assist in preventing or controlling a crime or public disorder.

178A (a) says that a police officer can search a phone with a warrant if the device is found at a crime scene and there’s reasonable suspicion that it contains evidence.

In Queensland, Sections 88A and 88B of the Crime and corruption act 2001 allow law officials to obtain information on a phone from the service provider and social media accounts. If law officials wish to do this, they must submit the search warrant to the administrative appeals tribunal (AAT) and justify why they need the data.

Similar laws exist in New South Wales. Here, well discuss this further:

During a search

If you’re wondering, can Police access your phone in Australia during a search? The answer is YES. Police can search and seize property, including phones, computers, illicit substances, weapons, or cash, when searching a person, vehicle or home.

According to sections 21 and 36 of LEPRA, Police can search your possessions during or after and arrest. The search is warranted if there’s reasonable suspicion that the item could be used in a crime, allow escape, or provide evidence. Officers can only take your possessions at a detection place; police station or during or before being transported.

During an arrest

What about during an arrest? can police access you phone in Australia? The answer is YES. During an arrest, Police can seize property, including your phone.

According to sections 27 and 28A of LEPRA, police can search your possessions during or after an arrest if there’s reasonable suspicion that the item could be used in a crime, allow escape, or provide evidence. Officers can only take your possessions at a detention place, police station, or during or before being transported.

What to do if Police take you phone?

Protecting your rights during a phone search.

If a Police officer asks to look at your phone without a warrant, ask them what the reasonable suspicion is and politely request that they get a warrant if they’d like to look inside the device.

Always keep a password on your phone. An officer cannot force you to provide the passcode unless they’ve obtained a warrant.

If a warrant has been issued, it must state a timeline for when the information, like a password, must be provided. It must also clearly state where the information sharing will take place.

Reasons to deny phone access

Determining a “reasonable excuse” for denying a phone search

Can police access your phone in Australia if you have a good reason to deny a search warrant? Yes, you can deny a search warrant for your phone.

You must provide law enforcement with a “reasonable excuse” for why they cannot search your phone. Once a warrant is issued you have little power over what happens to your device and its data.

The law is unclear abut what qualifies as a “reasonable excuse” and is determined on a case-by-case basis. For example, suppose someone has sensitive data from their job on their mobile device (not connected to the investigation). In that case, this may be considered a “reasonable excuse” for a judge or magistrate not to issue a warrant.

Failing to comply

You may be charged with hindering an investigation if you do not provide law official with your phine or password upon request.

If you’re issued a search warrant yet fail to provide the passcode of the device, you may face up to five years imprisonment and a fine of up to $63,000. If it’s discovered that you committed a serious crime, the sentence and fine and be doubled.

Phone provider and social media companies must give law enforcement requested phone information and data once its approved by the AAT. Failure to comply can result in up to 10 years of prison.

So, Can Police access your phone in Australia?

The answer is yes, police can search your phone if they have reasonable suspicion, you have been involved in a crime, or if your device contains evidence of a crime.

The Above article was authored by James and Jaramillo Lawyers, and the full article can be located here:

https://jjlawyers.com.au/can-police-access-your-phone-australia/

Revised data laws encryption laws explained

I am often asked by clients, how people can get into their encrypted messages. There are many ways that this can happen, but from a government viewpoint only; the following excerpts from an article by Griffin legal breaks down the 2018 legislation.

A controversial shake up to Australia data laws came into force in December 2018.

The telecommunications and other legislation amendment (assistance and access) Act 2018 (the Amendment) amended several pieces of legislation to enable the Government to access the communications of individuals in the name of national security.

The amendment was passed to make it easier to investigate suspected criminal activity in an age of data becoming increasingly encrypted.

Whilst the amendment doesn’t allow the government to de-crypt an individual’s data, it does allow them to intercept it wither before encryption has taken place or after it has been decrypted by users.

Summary of changes

The amendment enables the Government to:

  • Issue: “technical assistance requests” (TAR) to communications providers, asking that they voluntarily assist in providing access to devices, removing electronic protection or providing technical information.
  • Issue: “technical assistance notices” (TAN) to communications providers, demanding that they use their current systems to enable access to or interception of certain data/ communications.
  • Issue: ”technical capability notice” (TCN) to communications providers, demanding that they create a new capability which would allow interception by ASIO;
  • Expand their powers of interception and concealment in the area of computer access warrants.
  • Enhance their ability to remotely collect evidence from electronic devices under warrant.

What does it mean for compliance?

Although the Government held consultation with tech giants such as Apple, Google, Facebook, Telstra and Optus – these laws are set to have a big impact on smaller communications companies.

Tech companies will need to be aware of these changes and understand the difference between a compulsory and voluntary request. Failure to comply with a TAN and TCN will result in significant fines for communications companies.

The whole article can be seen here:

https://griffinlegal.com.au/data-encryption-laws/

Study proves domestic violence offenders and criminals are some of the largest purchasers of tracking devices in Australia.

Above: A tracking device located on a domestic violence Victims vehicle by The Bugsweepers in 2020. Thanks to this discovery, the offender was found guilty, and sentenced to 5.5 Years jail for over 20 breaches of AVO/DVO orders.

Key Takeaways:

Tracking devices are in demand from organized crime groups and known perpetrators of domestic violence, according to an Australian study.

The headline findings of Project Hakea – conducted by the Crime Commission in the Australian State of New South Wales and released yesterday – were that the top 100 purchasers of tracking devices are twice as likely as other buyers to have been the subject of Apprehended Violence Orders (AVOs) that require them not to harass, intimidate or stalk a protected person, and 2.4 times more likely to be known for serious and organized crime offending.

Tracking devices included in the study were:

  • Cellular network (sim card installed) transmitting devices
  • Beacons such as Apple air tags, tiles, Samsung smart tags etc

The NSW Crime Commission concluded:

  • 37 percent of customers were adversely known to the NSW Police Force for criminal behaviour.
  • 15 percent of customers were known to the NSW Police Force for involvement in serious and organized crime activity.
  • 25 percent of customers had a recorded history of domestic violence.
  • 126 customers were Apprehended Violence Order (AVO) defendants at the time they purchased a tracking device, including some customers who purchased a tracking device in the days after an AVO was enforced.

Domestic violence offenders and tracking devices

  • In its consideration of domestic and family violence (DFV), the study noted that of 96 offenders charged with unlawful use of tracking devices between 2010 and 2023, 79 were charged in relation to a domestic violence event. Magnetic GPS trackers were the most common devices used by the 96 offenders (31 events) with Bluetooth trackers used in 16 events.
  • The Commission reviewed more than a dozen NSW Police Force investigations that were initiated after the offender directly told the victim they had placed a tracking device on their vehicle. The study found that “The offender often informed the victim that they were using a tracking device to gather information about the victim’s new address or new partner, or that they intended to use the location data to defame the victim in Court or within their social circles.”
  • Almost 25 percent of customers identified in the study had been recorded as the person of interest in at least one domestic violence event. Of those, 169 had been recorded as the person of interest in five or more domestic violence events, and 80 had been recorded in ten or more events.

The full article was written by:
Simon Sharwood, for The Register
Wed 26th June 2024
And can be located here:

https://www.theregister.com/2024/06/26/criminals_use_gps_bluetooth_trackers/#:~:text=Magnetic%20GPS%20trackers%20were%20the,tracking%20device%20on%20their%20vehicle.

Are you concerned your vehicle may be tracked?

For an obligation free quote.