Digital evidence access orders in NSW.

The news, in summary.

About 9pm on Wednesday 15 July 2026, detectives from the State Crime Command's Cybercrime Squad executed search warrants at Lambton and Chisholm. Three men were arrested, charged with 32 offences between them, and refused bail to appear at Bail Division Local Court on Thursday 16 July. The strike force had been running since March 2026, investigating the alleged supply of prohibited drugs by a vendor account on a darknet marketplace.

Those matters are before the court. The men are entitled to the presumption of innocence. What follows is about the law, not the people.

Most of the charge list reads the way a drug supply charge list usually reads: supply on an ongoing basis, supply above the indictable quantity, participate in a criminal group, possess prohibited drug. Two of the three men were also charged with failing to comply with a digital evidence access order direction. That charge is not well known. It should be. It carries five years.

What is a digital evidence access order?

A digital evidence access order is a court-issued order that lets a police officer direct a person to hand over the information needed to get into a computer. The regime sits in Division 5 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), at sections 76AA to 76AP. It was inserted by the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Act 2022 (NSW) and commenced on 1 February 2023.

"Computer" is defined in section 76AA as an electronic device for storing, processing or transferring information. A phone is a computer. So is a laptop, a tablet, a hard drive, and a games console.

Section 76AB is the gateway. An eligible applicant may apply for an order in connection with a search warrant or a crime scene warrant, for authority for the executing officer to give a direction about a computer that may be found, or has been found, in executing that warrant. The order does not stand alone. It rides on a warrant.

Before issuing, the eligible issuing officer must be satisfied there are reasonable grounds for suspecting evidential material is held in, or is accessible from, the computer, and that the person named fits one of the categories in the section. Those categories are wide. They cover a person reasonably suspected of the offence stated in the warrant, but also the owner or lessee of the computer, an employee of the owner or lessee, a contractor, a person who uses or has used the computer, and a person who is or was a system administrator for it. You do not have to be a suspect to be named in one.

Can police force you to unlock your phone in Australia?

Not by asking. This is the distinction people get wrong, and it matters at the roadside and at the front door.

If a police officer asks you to open your phone and hands it to you, that is a request. You can say no. There is no general power in NSW that compels a person to open a device on demand, and there is no offence in simply declining. The same principle runs through the rest of police questioning: outside the limited situations where the law requires an answer, you have a right to silence. We set out how that works in practice in our note on the police interview and the ERISP.

If police hold a digital evidence access order that names you, the position reverses. Section 76AM says the executing officer may direct you to give any information or assistance reasonable and necessary to let the officer access data held in or accessible from the computer. The officer may also direct you to give the assistance needed to copy the data to another computer, or to convert it into a form the officer can read.

Section 76AM(2) deals with biometrics directly. The executing officer may require the person to provide reasonable and necessary assistance in accessing data on a computer secured by biometric means, including fingerprint and retina scans. Face and thumb are covered. A phone locked with Face ID is no harder to open under this section than a phone locked with a four-digit PIN.

Two limits are worth knowing. A direction may specify a time by which the person has to carry it out, under section 76AM(2A). And under section 76AM(2B), the officer must not direct a person under 18 unless reasonable steps are taken to have a suitable person present to represent that child's interests while the direction is given.

Can you refuse to unlock your phone?

Only with a reasonable excuse. Section 76AO(1) says a specified person for a digital evidence access order must not, without reasonable excuse, fail to comply with a direction given in accordance with the order.

Then comes section 76AO(2), which is the provision that does the real work:

"Without limiting subsection (1), it is not a reasonable excuse for a specified person for a digital evidence access order to fail to comply with the order or a requirement made in accordance with the order on the ground that complying with the order or the requirement would tend to incriminate the person or otherwise expose the person to a penalty."

Parliament has abrogated the privilege against self-incrimination for this purpose. "The contents will convict me" is not an answer to the direction. That is a real departure from the general rule, and it is the reason the regime attracted criticism when it was introduced.

What is left of "reasonable excuse" is narrower than people hope. Genuinely not knowing the password is the obvious one. So is not having the ability to comply: the device is not yours, the account is not yours, the passphrase was set by someone else, the data sits in a service you cannot reach. The excuse is about capacity, not consequences. Whether it runs is a question of fact, and the burden sits on the person raising it.

There is one protection for the person complying. Section 76AM(3)(a) says information provided to access the data may be used only for that purpose and no other. The password itself is quarantined. That protects the credential. It does not protect what the credential opens.

What is the penalty for refusing?

Section 76AO sets a maximum of 100 penalty units, or imprisonment for 5 years, or both. The NSW penalty unit is $110, so 100 penalty units is $11,000.

The section catches a second thing as well. Under section 76AO(1)(b), it is an offence to give the executing officer information that is false or misleading in a material particular in purported compliance with a direction, unless the person tells the officer that the information is false or misleading. Same maximum. Handing over a PIN that does not work, or pointing at the wrong account, is charged the same way as saying nothing.

Five years is a serious maximum for what looks like a procedural offence. It is deliberate. The penalty is set to make silence a worse option than compliance where the device holds the evidence of a much more serious charge. Where a person faces a drug supply matter with a long maximum, the arithmetic may still favour silence, and the legislature knows it.

Can police seize my phone in NSW?

Yes, in a number of situations, and seizure is a separate question from access. Police may seize a phone under a search warrant where it is or may be evidential material, under the personal search powers in Part 4 of the same Act, or on arrest.

None of that gives police the password. A lawfully seized phone can sit in an exhibit locker, locked, for a long time. That gap between having the device and having the data is what the digital evidence access order was built to close. If a warrant has been executed at your home, our note on what to do after a search warrant covers the first steps.

Can police get into a locked phone without a password?

Sometimes. Forensic extraction works on some devices and some operating system versions and fails on others. It is expensive, it queues, and it can take months. Modern handset encryption is good enough that a current device with a long alphanumeric passcode may not yield at all.

That is the practical reason the regime exists. Compelling the password is cheaper and faster than defeating the encryption, and it works on devices the tools cannot open. In a darknet investigation the device is usually the case. The vendor account, the encrypted messaging, the cryptocurrency wallet, and the postal records tend to live on the handset and nowhere else. Take away the phone data and what remains is often circumstantial. This is why a section 76AO charge tends to appear next to charges that depend on what the phone held.

How does the Commonwealth order compare?

The Commonwealth has its own version in section 3LA of the Crimes Act 1914 (Cth). A constable may apply to a magistrate for an order requiring a person with knowledge of a computer or a computer system to provide information or assistance that is reasonable and necessary to allow access to data. The Commonwealth penalty is higher: failure to comply carries a maximum of five years, rising to ten years where the underlying matter is a serious offence. If the AFP is running the investigation rather than NSW Police, the order and the exposure are different. Both can appear in the same investigation where a joint agency taskforce is involved.

The powers are about to get wider.

On 18 June 2026 the NSW Government announced a package of organised crime laws. One item in it goes to this regime directly.

The announcement says the new laws will remove the requirement for an accompanying search or crime scene warrant where organised crime is suspected, so that police could apply for a digital evidence access order where a device has been lawfully seized during an arrest, a roadside stop, or other lawful detention. The stated reason is speed, because delay risks data being lost, encrypted, or wiped remotely. The same package proposes doubling the penalty for refusing to answer questions put by the NSW Crime Commission, to a maximum of ten years.

Read that against section 76AB as it stands. The warrant requirement is the main structural limit on the order. It means a court has already been satisfied of something before anyone is compelled to open a device. Removing it for a category of suspected offending turns the order from an adjunct to a warrant into a power available whenever a phone is lawfully in police hands. A roadside stop is a low threshold for the start of that chain.

This is an announcement, not law. The detail will matter, particularly how "suspected of organised crime" is defined and who decides it applies. Until a bill is introduced, section 76AB still requires the warrant.

What we do for clients facing this charge.

A section 76AO charge is rarely the main charge. It sits next to the substantive matter, and the first question is what it is doing there. The order itself is the first thing to get. It is a court order with conditions, and the questions are ordinary ones. Was there a search warrant or crime scene warrant for it to attach to, as section 76AB requires? Was the person named in it, or within a class specified in it? Was the direction given by the executing officer for that order, and was it within what section 76AM allows? Was a time specified, and had it passed? If the person was under 18, was a suitable person present as section 76AM(2B) requires? An order that does not attach to a valid warrant is an order with a problem, and the charge that depends on it has the same problem.

The second question is capacity. Reasonable excuse is live where the client did not know the password, did not control the account, or was named as a user of a device that was not theirs. That is a factual inquiry, won or lost on the detail.

The third is what happens to the substantive matter. Where the phone data was never obtained, the case on the main charges may be thinner than the charge sheet suggests. Where it was obtained, section 138 of the Evidence Act 1995 (NSW) asks whether it was obtained lawfully, and if not, whether the desirability of admitting it outweighs the undesirability of admitting evidence obtained that way. We have written about how that discretion runs in DPP v Kan. Bail is usually the immediate problem, because the substantive charges bring the show cause provisions with them rather than the section 76AO count. Our note on show cause bail sets out what has to be established.

The practical advice is short. If police hand you a document and tell you to open your phone, read it. Ask whether it is a digital evidence access order, ask to see it, and ask what warrant it attaches to. Then call a lawyer before you answer. The choice between complying and not complying is a choice between two different criminal exposures, and it should be made with advice rather than at the kitchen table at 9pm.

Frequently asked.

Can police force you to unlock your phone in Australia?

Not on request alone. In NSW, police need a digital evidence access order made by an eligible issuing officer under Division 5 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002. If they hold one, the executing officer can direct you to provide the password, and section 76AM(2) allows them to require you to open a device secured by fingerprint or face recognition. Without an order, a request to open the device is a request you can decline.

Can you refuse to unlock your phone?

You can refuse a request. You cannot refuse a lawful direction under a digital evidence access order unless you have a reasonable excuse. Section 76AO(2) says that the fact that complying would tend to incriminate you, or expose you to a penalty, is not a reasonable excuse. The privilege against self-incrimination has been removed for this purpose.

What is the penalty for refusing to give police your phone password in NSW?

Section 76AO of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets a maximum of 100 penalty units, or imprisonment for 5 years, or both. At the current NSW penalty unit of $110, 100 penalty units is $11,000. Giving the officer false or misleading information in purported compliance carries the same maximum.

Can police seize my phone in NSW?

Yes, in a range of circumstances, including under a search warrant, under the personal search powers in Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002, and on arrest. Seizing the handset and compelling the password are two different things. Police can hold a locked phone lawfully and still have no power to make you open it unless they obtain a digital evidence access order.

Can police get into a locked phone without a password?

Sometimes. Forensic extraction tools defeat some devices and some operating system versions. The point of the digital evidence access order regime is that extraction does not always work, and it is slow. Compelling the password is faster and more reliable, which is why the order exists.

Does a digital evidence access order need a search warrant?

Under the law as it currently stands, yes. Section 76AB requires the application to be made in connection with a search warrant or a crime scene warrant. On 18 June 2026 the NSW Government announced legislation to remove that requirement for suspected organised crime, so that an order could be sought where a device was seized on arrest, at a roadside stop, or in other lawful detention. That change is an announcement, not yet law.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 17 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

Sources: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Division 5 of Part 5 · Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Act 2022 (NSW) · JADE

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