Introduction

In NSW, police hold certain powers to search mobile phones without needing a warrant in some situations. Knowing about these powers is really important for everyone, whether they’re part of the public, legal experts, or people facing legal charges, so they can make sure their rights are safe while dealing with police.

This guide provides an overview of the circumstances under which NSW police may search your phone without a warrant, the legal protections available, and the implications of such searches. By familiarising yourself with these laws, you can better navigate legal processes and protect your personal information — something we all value.

When Can Police Conduct a Phone Search Without a Warrant?

Seizure with Reasonable Grounds

Police in NSW have the authority to seize a mobile phone without a warrant under specific circumstances. This power is primarily exercised under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), or ‘LEPRA’, particularly sections 21, 27, and 28A. An officer may seize a phone if they have reasonable grounds to suspect that the phone is either stolen or contains evidence of a serious offence. A serious offence is defined as one that carries a penalty of more than five years imprisonment. 

For example, if an officer observes behaviour indicative of a burglary, and a mobile phone is seen at the scene, they may seize it if they reasonably suspect it was used to facilitate the crime. Additionally, during a stop and search, police can examine anything in a person’s possession, including mobile phones, without demanding that the phone be unlocked. This allows for a basic external check of the device. However, without a warrant or a Digital Access Order, the police’s ability to access the phone’s contents directly is limited.

Digital Access Orders

Digital Access Orders, introduced in 2023, provide police with a mechanism similar to warrants for accessing the contents of digital devices. These orders require individuals to provide passwords, passcodes, or other information necessary to unlock devices such as mobile phones, computers, and tablets.

Failure to comply with a Digital Access Order or providing false information can result in severe penalties, including fines of up to $11,000 or imprisonment for up to five years. It is advisable for individuals issued with such orders to seek legal advice to understand their rights and obligations fully.

Digital Access Orders ensure that while police can access crucial digital evidence without traditional search warrants, there are stringent consequences for non-compliance, thereby balancing investigative needs with individual rights.

Privacy Rights in NSW

Legal Protections of Privacy

Individuals in NSW are afforded robust privacy protections concerning their mobile phones, which are grounded in both statutory and common law principles. The principle of legality mandates that criminal statutes be interpreted strictly in favour of the accused, ensuring that fundamental rights are not overridden unless clearly stated by Parliament. Common law privacy rights further safeguard individuals against arbitrary searches and seizures, reinforcing the notion that privacy is a fundamental freedom.

These protections encompass:

• Freedom from Arbitrary Search and Seizure: Police must have a legitimate reason, supported by reasonable grounds, to conduct a search of an individual’s phone. Reasonable grounds must be more than a “hunch”, and require an objective basis for suspicion.
• Right to Silence and Self-Incrimination Protection: Individuals cannot be compelled to unlock their phones or disclose passcodes without proper legal authority, such as a valid warrant or digital access order.
• Principle of Necessity and Proportionality: Any intrusion into personal privacy must be necessary and proportionate to the investigation being conducted, ensuring that the least intrusive means are employed. This means police cannot perform a so-called “fishing expedition” to find anything extraneous to what the situation necessitates.

These legal frameworks collectively ensure that individuals’ privacy rights are respected and that any infringement by law enforcement is justified and legally sanctioned.

Legal Defences Against Unlawful Phone Searches

Challenging the Validity of the Search

• Lack of Proper Authority: Argue that the police did not obtain a valid search warrant or lack reasonable suspicion to conduct the phone search. Without these, the search may be deemed unlawful.
• Exceeding Legal Boundaries: Assert that the scope of the search exceeded the authorisation provided by law. For instance, if the police accessed information unrelated to the suspected offence, the search may have overstepped legal limits.
• Non-Compliance with Legal Procedures: Highlight any failure by the police to follow required legal procedures including those under section 202 of LEPRA , such as not providing evidence that they are a police officer (if the officer is not in uniform), not providing their name and place of duty, or not clearly stating the reason for the search. Proper adherence to procedures is essential for the legitimacy of the search, although this would unlikely be sufficient on its own to deem the search invalid and unlawful (see LEPRA section 204A(1)). 
• Violation of Privacy Rights: Utilise the principle of legality to contend that the search infringed upon fundamental privacy rights protected under common law. Courts may view such violations as grounds to invalidate the search.

Seeking Remedies for Unlawful Searches

• Evidence Exclusion: File a motion to exclude any evidence obtained through the unlawful phone search. If the court finds the search invalid, they may exercise discretion not to admit the evidence.
• Compensation Claims: Seek financial compensation for damages resulting from the unlawful search, including invasion of privacy and any emotional distress caused.
• Formal Complaints: Submit a formal complaint to police oversight bodies or ombudsmen regarding the unlawful search. This can lead to investigations or disciplinary actions against the officers involved.
• Injunctive Relief: Pursue legal orders to prevent the use or dissemination of unlawfully obtained data from your phone. This protects your personal information from further misuse and ensures it is not used against you in legal proceedings.

Conclusion

Police in NSW possess the authority to search and seize mobile phones without a warrant under specific circumstances, such as when there is reasonable suspicion or under digital access orders. Understanding these conditions is crucial for individuals to protect their privacy and legal rights effectively.

Being informed about your rights and the legal frameworks governing police search powers helps ensure that interactions with law enforcement are handled appropriately. Awareness and knowledge can mitigate potential legal repercussions and assist in communicating with legal representation, empowering individuals to make informed decisions.

Frequently Asked Questions