NSW police can already force you to hand over your phone’s passcode under a warrant - with prison time for refusing. The government now wants this power available during routine arrests and roadside stops. Here’s what the law currently allows, and what may change.
Most people assume that if police want to look through their phone, they need a warrant, and that refusing to hand over a passcode is simply their right. In New South Wales, that assumption is only partly correct - and the gap between what people believe and what the law actually allows is significant. Under laws that have been in force since 2023, police can already compel a person to unlock a device, with real prison time for refusing. The NSW Government is now proposing to extend this power well beyond its original scope. This article explains what the law currently allows, and what may be about to change.
A Digital Evidence Access Order (DEAO) is a court order that compels a person to provide access to a digital device - a phone, tablet or computer. The regime is contained in Division 4A of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), commonly known as LEPRA, and has been in force since February 2023.
A police officer applies for a DEAO under section 76AF, and it must currently accompany an existing search warrant or crime scene warrant. If a Magistrate or authorised officer is satisfied there are reasonable grounds to suspect the device holds evidence of an offence, the order can be made. Once made, the order can compel a person to:
This is the part that surprises most people: refusing to comply with a valid DEAO, without a reasonable excuse, is itself a criminal offence under section 76AO of LEPRA, carrying a maximum penalty of five years’ imprisonment and/or a substantial fine. Critically, the legislation specifically states that the right against self-incrimination is not a reasonable excuse for refusing. In other words, the ordinary rule that you cannot be forced to provide evidence against yourself does not apply here - the DEAO regime overrides it.
There is a separate safeguard the other way: if a police officer knowingly provides false or misleading information to obtain a DEAO, that is also an offence, under section 76AG, carrying up to two years’ imprisonment.
Once police have lawful access to a device, modern forensic tools can extract far more than a quick look through recent messages. These tools can recover deleted messages and images, location history, search history, contacts, and metadata - effectively a complete record of the device’s history, not just what is currently visible on the screen.
Currently, a DEAO can only be sought alongside a search warrant or crime scene warrant - meaning a magistrate or authorised officer has already independently assessed that a warrant is justified. The NSW Government has announced its intention to expand the regime so that police could seek this kind of access in a wider range of circumstances, including during arrests, roadside stops and other lawful detentions, where a device has been lawfully seized in the field - not only where a warrant has already been obtained.
The stated purpose is targeting organised crime, where investigators say delay can allow data to be remotely wiped or lost. However, broadening the categories of situation in which this power can be used - from warrant-based searches to routine field detentions - would meaningfully increase how often ordinary people could be asked to unlock a device, not only those under investigation for serious organised crime. As with any bill before parliament, the final scope may change before it becomes law, and this article will be updated to reflect the position once it does.
It is important to distinguish a genuine DEAO from an informal request. Police frequently ask people to unlock a phone voluntarily, without any order at all - and you are entitled to decline a request that is not backed by a valid DEAO or warrant. Handing over your phone or your passcode voluntarily can waive protections you would otherwise have.
If you are presented with a document that purports to be a DEAO, ask to see it, and do not assume it is valid simply because an officer says it is. A DEAO must be properly issued and must accompany a valid warrant under the current law. If in doubt, say that you wish to speak to a lawyer before responding, and do so calmly - refusing to comply with a genuinely valid order carries real criminal exposure, so getting advice quickly matters.
This sits alongside your broader rights when arrested or questioned, including your right to silence in relation to police interviews - a right that, as this area of law shows, does not extend to every category of police demand.
Whether a DEAO was validly obtained, whether the underlying warrant was lawful, and whether evidence extracted from a device can be challenged are all matters that can significantly affect a prosecution. Our experienced criminal lawyers can advise you if you have been served with a DEAO, if your device has been seized, or if you are facing charges arising from digital evidence. Contact NS Criminal Lawyers for a confidential discussion about your matter.
This article provides general information only and is not legal advice. It refers to proposed reforms that had not commenced as law at the date of publication; the current law described above continues to apply until any reform takes effect. For advice about your circumstances, please contact a qualified criminal defence lawyer.
