What are dedicated encrypted criminal communication device offences? This article will answer this question and its provisions under the Crimes Act 1900 (NSW).

In the realm of criminal communication, a new breed of devices has emerged, posing a significant challenge to law enforcement efforts. These devices – dedicated encrypted criminal communication devices – can facilitate communication between individuals engaged in serious criminal activities

Criminals use these devices while simultaneously shielding their interactions from detection by authorities and the police. These devices may block or replace key features of the device's operating system, such as voice calls, web browsers, or geolocation services. Additionally, they may enable encryption of communication between users.

Let's learn more about dedicated encrypted criminal communication device offences as we go through this article.

Section 192N and 192O: Definitions Under Dedicated Encrypted Criminal Communication Devices Offences

Section 192N defines the following terms:

Dedicated Encrypted Criminal Communication Device

Section 192O defines a dedicated encrypted criminal communication device. This is a mobile electronic device that meets the following criteria:

  1. It can facilitate communication between people who are reasonably suspected of being involved in serious criminal activity, in a way that makes it difficult for law enforcement to detect.
  2. It uses hardware modifications or software that makes it difficult for law enforcement to access information on the device. This includes modifications that:
    • Block or replace key features of the device's operating system, such as voice calls, web browsers, or geolocation services.
    • Enable encryption of communication between users.

Now that we have defined what a 'dedicated encrypted criminal communication device' is, let's discuss dedicated encrypted criminal communication device offences.

Serious Criminal Activity

Under dedicated encrypted criminal communication device offences, "Serious criminal activity" means committing an offence that:

Note: Obtaining material benefits from engaging in conduct that constitutes an offence under Section 192N(a).

Section 192P: Possession of Dedicated Encrypted Criminal Communication Devices for Certain Purposes

Section 192P of dedicated encrypted criminal communication device offences state that a person commits an offence under this section if:

  • They possess a dedicated encrypted criminal communication device.
  • There are reasonable grounds to suspect that they possessed the dedicated encrypted criminal communication device to commit or facilitate serious criminal activity.

Maximum penalty: Imprisonment for 3 years.

The following matters may be considered in determining whether there are reasonable grounds to suspect that a person:

  • Possessed a dedicated encrypted criminal communication device to commit; or
  • Facilitate serious criminal activity:

These factors are as follows:

  1. A service attached to the dedicated encrypted criminal communication device is in a false name.
  2. The dedicated encrypted criminal communication device was purchased or obtained from:
    • A criminal network.
    • A person who is reasonably suspected of supplying dedicated encrypted criminal communication devices to people involved in criminal activity.
  1. A person is in possession of indications of drug supply.
  2. Concurrently possessing prohibited firearms.
  3. Concurrently possessing child abuse material.

Section 192P: Defence to a Dedicated Encrypted Criminal Communication Device Offences

There are defences to a prosecution for an offence under this section. This is if the defendant satisfies the court that they possessed the dedicated encrypted criminal communication device:

  • In the ordinary course of their duties as an officer, employee, or agent of a government agency or public authority.
  • To supply to, or in partnership or agreement with, a government agency.

A government agency includes:

  • A government agency of this State.
  • A government agency of the Commonwealth or another State or a Territory.

Section 192Q: Proof of a Specific Offence Is Not Required

Section 192Q of dedicated encrypted criminal communication device offences states that proof of a specific offence is not required. The prosecution does not need to prove that a specific crime was being committed or planned to be committed using the dedicated encrypted criminal communication device.

In other words, it is not necessary for the prosecution to prove that the person who possessed the device was actually using it to commit a crime. It is enough to show that there were reasonable grounds to suspect that the device was being used or planned to be used to commit a crime.

Section 192R: Review of Part

Section 192R of dedicated encrypted criminal communication device offences outlines the following:

1. Requirement for a ministerial review

The Minister responsible for law enforcement must conduct a review of this Part to determine whether:

  • The policy objectives of the relevant provisions remain valid.
  • The terms of the Part remain appropriate for achieving those objectives.

2. Timing of the review

The review must be commenced as soon as possible after two years after the commencement date.

3. Reporting on the outcome of the review

A report on the outcome of the review must be tabled in each House of Parliament within 12 months after the end of the review period.

4. Definition of "commencement date"

For this section, "commencement date" means the date on which Schedule 2 of the Dedicated Encrypted Criminal Communication Device Prohibition Orders Act 2022 commences.

The Importance of Seeking Legal Advice

Dedicated encrypted criminal communication devices are a serious concern for law enforcement. Parties can use this to facilitate serious criminal activity while evading detection. The Crimes Act contains provisions that make it an offence to possess a mobile device for certain purposes, such as committing or facilitating serious criminal activity.

The penalties for possessing a DECCD are severe. As mentioned, the penalty for this offence is three years imprisonment. If you are a part of a dedicated encrypted criminal communication device offences, it is important to seek legal advice immediately.

JB Solicitors has a team of experienced criminal lawyers who can help you understand your legal rights and options. They can also represent you in court and fight for the best possible outcome.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.