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Cipher phones and apps used by organised crime organisations to facilitate and plan large-scale criminal acts have led to the Australian Government introducing reforms to the Crimes Act 1900.

As a result of successful police operations, the Dedicated Encrypted Criminal Communication Device Prohibition Orders Bill 2022 was introduced to directly address the use of cipher phones.

What is a Cipher Phone?

A cipher phone, more formally known as a dedicated encrypted criminal communication device (DECCD), is a mobile electronic device which uses software or hardware modifications to change the operating system of the phone to block or replace key features of the phone.

It is specifically designed or equipped to facilitate communication between people who have been reasonably suspected of being involved in serious criminal activity, with the intention of avoiding detection by law enforcement.

A DECCD allows an individual to block or replace voice calls, web browsers, geolocation services or enabling encryption for communication between different people across DECCDs for the purpose of impeding law enforcement access to information on the device.

Another modification is a duress password or pin which can completely wipe the data off of a cipher phone to avoid the police and other law enforcement bodies from accessing incriminating evidence.

Individuals linked with organised crime usually use sim cards and mobile services that cannot be traced back to their name when planning and executing crimes, therefore a cipher phone is a key tool in their operations.

Cipher Phone Laws

Under s192P of the Crimes Act 1900 (NSW), it is a criminal offence to possess a dedicated encrypted criminal communication device and there are reasonable grounds for the police to believe that the person is using the device to commit or facilitate serious criminal activity.

The court will consider the following to determine whether there were reasonable grounds to suspect the device was being used to commit or facilitate serious criminal activity:

• If the service attached to the phone (e.g. sim cards) is linked to a false name;
• If the device was bought or sourced from a criminal network;
• If the person has other items which suggested a link to organised crime including:
  • Indications of drug supply;Prohibited firearms;
  • possess child abuse material.

The Criminal Assets Recovery Act 1990 (NSW) has defined ‘serious criminal offences’ as offences which are punishable by 5 or more years of imprisonment. The Act lists offences

such as drug supply, slavery, money laundering and firearms offences as serious criminal offences.

The prosecution doesn’t need to prove that the offence was being committed or planned using the device. Possession of the device is sufficient.

Penalty for Possessing a Cipher Phone

The maximum penalty for the possession of a cipher phone is 3 years imprisonment under the Dedicated Encrypted Criminal Communication Device Prohibition Orders Act 2022.

If you have been charged with such an offence, you should contact an experienced Sydney criminal lawyer to advise you on the best way to defend the matter. Contact Astor Legal on (02) 7804 2823 or email us at info@astorlegal.com.au to speak with an accredited specialist in criminal law.

DECCD Prohibition Orders

Under Section 9 of the Act, an eligible person may be subject to a DECCD prohibition order if a police officer reasonably believes the individual will use a DECCD to avoid detection of criminal activity by law enforcement.

An ‘eligible person’ is defined as a person who is at least 18 years of age and has been convicted of a serious criminal offence.

In the Act, a ‘serious criminal offence’ includes:

• Offences punishable by a term of 10 years or more, where the conduct constituting the offence involves loss of a person’s life, serious injury to a person, or serious damage to property in circumstances endangering the safety of any person;
• participate in criminal group;
• money laundering offences;
• serious drug offences; and
• certain firearms and weapons offences.

If a magistrate makes a DECCD prohibition order, a police officer can:

1. Stop, detain and search the person;
2. enter any premises occupied by or under the control or management of such a person; or
3. stop, detain, and search any vehicle occupied by or under their control or management.

The police officer does not need a warrant to use the above powers. However, they can only use these powers to determine whether the person is in possession of a DECCD.

In deciding whether to impose a prohibition order, an Authorised Magistrate must consider:

• the potential risk to public safety by the person;
• whether the person associates with others who are suspected to be involved in serious criminal activity;
• criminal intelligence about the person’s suspected involvement in serious criminal activity or drug-related crime;
• information from registered sources;
• surveillance reports;
• whether the person has cash or assets that are significantly out of proportion to the person’s income.

The order can be enforced for a minimum period of 6 months and a maximum of 2 years. The person who is subject to the order does not need to be notified about the application of the order. However, when the order is in force, they can apply to have the order revoked by the Local Court.

The Local Court may confirm, vary or revoke the order. The order can only be revoked if the Court is satisfied that the person is unlikely to use a DECCD or that the risks associated with the individual using a cipher phone can be addressed in an alternative way.

Operation Ironside

Operation Ironside was a cipher phone bust led by the Australian Federal Police. It involved surveillance of encrypted communications between persons involved in criminal activity. The cipher phones were hacked by police and information was gathered before arrests were made.

The operation resulted in over 200 people being charged as well as 3.7 tonnes of prohibited drugs, 104 weapons and around $45 million in cash being seized. The AFP also uncovered correspondence regarding drug trafficking, gun distribution and plans to murder individuals.

Operation Ironside resulted in the government believing cipher phones had the capability to facilitate serious offences. These included drug importation, drug supply, money laundering, trafficking firearms, firearms offences and kidnapping.

Deputy Premier and Minister for Police, Paul Toole, introduced the Dedicated Encrypted Criminal Communication Device Prohibition Orders Bill 2022 to establish a scheme for DECCD prohibition orders. These orders allow police to randomly detain and check the individual, their car or their house if they are believed to be involved with an organised crime unit.

The bill also created new offences in the Crimes Act 1900 and consequential amendments to other legislation.

Toole referred to the reforms as “world leading,” he expects that the new legislation will “send a strong message to organised crime that these dedicated criminal devices are not welcome in this State.”

The government made it clear that the reforms would not target widespread encryption apps such as  Whatsapp and Signal. The focus instead would be on newly emerging technology which is exclusively used for organised crime.

The bill has been in force since 1 February 2023.