Understanding 205A Orders in Queensland: When Police Can Demand Your PIN Code

In Queensland, when the Police are investigating a crime, they may obtain a Court order requiring a person to give their PIN code to their phone and computers.

Police may apply to a Judge or Magistrate for an order under section 154 Police Powers and Responsibilities Act 2000that requires a specified person to give a police officer access to the device (commonly phones and computers).

Section 205A was inserted into the Criminal Code in 2016 by the Serious and Organised Crime Legislation Amendment Act 2016 (Qld).

Under this provision, the Police may seize and examine devices and the specified person (usually the owner) is required by law to provide all access information (passwords and pin codes). This can include access to particular applications on the device as well.

The Explanatory Notes for the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) describe section 205A, amongst other relevant provisions, as a "major investigative tool to combat serious criminal activity".

Section 205A of the Criminal Code makes it an offence not to comply with a court order, and the maximum penalty is 5 years' imprisonment. The form of this order of the Court is typically contained within the search warrant document signed by the Magistrate or Judge.

The offence is treated seriously by the Courts, and in three reported decisions, each defendant has received a term of suspended imprisonment:

Ross v Commissioner of Police (2019) QCA 96: 12 months imprisonment, wholly suspended for three years

Calvet v The Commissioner of Police (2020): Six months imprisonment, wholly suspended for 18 months

Wilson v Commissioner of Police (2023): 10 months, wholly suspended for 12 months

Often, questions arise at the sentence hearing as to the exact nature of the investigation and the reasons of the defendant for failing to comply with the Court Order.

The Court of Appeal in Ross v Commissioner of Police [2019] QCA 96, cited Weininger v The Queen (2003) 212 CLR 629, noted that a sentencing hearing is not an inquisition into all that may bear upon the circumstances of the offences or matters personal to the offender. The High Court in Weininger specifically noted that in a Sentence, some matters will remain unknown to the sentencing judge.

In Ross, Wilson J (whom Gotterson and McMurdo JJA agreed) said the applicant made a deliberate and careful choice not to provide the passcodes to the particular devices. Her Honour concluded that the defiance of a court order is an act that strikes at the foundation to the criminal justice system and there is a need for general deterrence and denunciation when sentencing section 205A Criminal Code offences.

Author:
Tom Gardiner
Principal

This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact the Fisher Dore team.

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