The Act builds on a set of defined concepts that determine eligibility, scope and limits.

• Dedicated encrypted criminal communication device: The phrase is defined by reference to the Crimes Act 1900, s 192O, via the Dictionary in Schedule 1. That cross-reference fixes the substantive threshold for what constitutes the class of devices the Act targets (Sch 1, definition of dedicated encrypted criminal communication device).

• Eligible person: A person must satisfy the Schedule 1 definition to be the subject of an order. That requires a prior conviction for a "serious criminal offence" and that the person be at least 18 years old on the application day (Sch 1, eligible person). "Serious criminal offence" is itself a defined set of offences drawn from multiple statutory sources, including certain provisions of the Crimes Act 1900, the Firearms Act 1996, the Weapons Prohibition Act 1998, the Commonwealth Crimes Act 1914 and a cross-reference to offences prescribed by regulation (Sch 1, serious criminal offence).

• Authorised judge: Only a Judge of the Local Court who has consented and been declared by the Attorney General may act as an authorised judge under this Act (Sch 1; s 23). The statute preserves judicial protections and provides that selection of the authorised judge to exercise a particular function must not be made by the Attorney General or another Minister (s 23(3), s 23(7)).

• Application and ex parte process: Police apply to an authorised judge by affidavit (s 9-10). The person who may be subject to the order is not told about the application and cannot make a submission (s 14(1)). The authorised judge must give the oversight commissioner a reasonable opportunity to make a submission (s 12(2)(a)), and may itself question police or the oversight commissioner (s 14(3)).

• Powers given by an order: If an order is made, police may exercise non-warrant entry, search, stop-and-search and vehicle-search powers for the purpose of determining possession of dedicated encrypted devices (s 5(1)). Police may also seize items suspected on reasonable grounds to be evidence of offences, stolen property, relevant-offence evidence under LEPRA or dangerous articles (s 7).

• Compulsion to assist and self-incrimination: Police may direct the subject to provide assistance to enable access to data held on identified computers or computers seized under the order (s 6(1)). Failure to comply without reasonable excuse is an offence punishable by imprisonment up to 3 years (s 6(2)). The Act expressly excludes non-compliance justified by claims that compliance would tend to incriminate the person or expose them to penalty (s 6(3)), so the privilege against self-incrimination is limited as a defence to the statutory compulsion.

• Confidentiality and limited disclosure: The authorised judge must record reasons and evidence for making the order (s 15(1)), but the subject and other persons are not generally entitled to those reasons or to documents that formed part of the application (s 15(2), s 19(6), s 20(6)). The oversight commissioner must keep the application and associated documents secure and inaccessible to unauthorised persons (s 11(4)).

• Limits, duration and service: An order takes effect on being made, but police may not exercise powers under it until a copy has been served personally or in an authorised substituted manner (s 17(1)-(3), s 18). The period for an order must be between six months and two years (s 17(4)). The Act contains restrictions on repeat applications (s 9(3)) and on when the subject may seek revocation (s 19(8)).

• Oversight and reporting: Police must give the oversight commissioner advance notice of an application (s 11) and must report after an order ceases, with detailed particulars of each search and use of evidence, no later than 60 days after expiry or revocation (s 21(1)-(3)). The Secretary must appoint an oversight commissioner who meets defined legal qualifications and is not a member of NSW Police Force (s 22).

These concepts are used to define a targeted investigative regime: narrowly defined subjects, specified ex parte process, compulsory assistance with a significant criminal penalty for non-compliance, and reporting and institutional oversight mechanisms.

The Act identifies particular classes of persons and institutions that are either directly subject to obligations or are potential targets of police powers.

• Eligible persons (primary targets): The statutory "eligible person" is someone convicted of a serious criminal offence and aged at least 18 on the application day (Sch 1). The list of "serious criminal offence" categories includes specified violent and serious drug, weapons, fire-arms and anti-organised crime offences drawn from multiple statutes (Sch 1, serious criminal offence). That means the primary cohort exposed to orders are people with prior serious criminal convictions meeting those statutory categories.

• The subject of an order: Once made, the "subject" (person against whom the order is made) is the focus of police stop, search, seizure and compulsion powers under the order (ss 5-7, 6(1)). They are also the party with a statutory right to apply for revocation to the Local Court (s 19).

• NSW Police and police officers: Police initiate applications (s 9(1)), must obtain senior police officer authorisation before an application is made (s 9(2)(b), s 10(2)), and exercise the search, entry and seizure powers while an order is in force (s 5, s 7). The Commissioner of Police has a number of express duties: to give the oversight commissioner notice before application (s 11(1)-(2)), to ensure written notice of searches is given to the subject when they were not present (s 8), to keep a service record (s 17(5)), and to provide post-order reports to the authorised judge and oversight commissioner (s 21).

• Oversight commissioner and Secretary: The Secretary, in consultation with the Attorney General, must appoint an oversight commissioner (s 22(1)). The oversight commissioner must meet specified senior legal qualifications and must not be a member of NSW Police Force (s 22(3)-(4)). The oversight commissioner receives advance notice of applications (s 11(1)-(2)), receives copies of applications and documents after the order decision (s 11(3)), and must keep them secure (s 11(4)). The Secretary also has power to approve forms (s 24) and to appoint additional oversight commissioners temporarily (s 22(6)).

• Authorised judges and Local Court Judges: The Act limits the judicial decisionmaker role to Local Court Judges who have consented and been declared by the Attorney General to be authorised judges for the Act (s 23(1)-(2)). The Act preserves judicial protections and prevents Ministerial selection of a judge to exercise a particular function (s 23(3), s 23(7)).

• People present at premises or vehicles searched: The reporting requirements require the Commissioner to provide the number of non-police persons present or "adversely affected" by searches (s 21(2)(b)(v)), so third parties present during searches are identified and their presence must be recorded and reported. The Act authorises searches of premises the police reasonably suspect are owned, controlled, or used by the subject, so co‑occupants and neighbours may be affected where police enter such premises (s 5(1)(b)(i)-(iii)).

• Businesses and owners of premises or vehicles: Premises may be searched without warrant if they meet the statutory tests in s 5(1)(b), and vehicles linked to searchable premises may be searched (s 5(1)(c)). Owners or managers of premises that the police reasonably suspect are connected to the subject may be affected. The Act also contemplates seizure of "things" reasonably suspected to be stolen or to be evidence (s 7).

• Courts and reporting bodies: The Local Court is the forum for revocation applications by the subject (s 19) and for revocation applications by the Commissioner of Police or oversight commissioner (s 20). The authorised judge and oversight commissioner receive post-order reports (s 21).

• Wider public and regulated entities by implication: The Act contemplates vehicle and vessel searches and compulsion to access data on "computers" (defined widely as electronic devices for storing, processing or transferring information, Sch 1). That means devices used by third parties and service providers may be directly implicated by search and seizure, and by directions requiring assistance to access data on computers identified during searches (s 5(1)(e), s 6(1)).

The statutory design therefore concentrates direct obligations and risks on a discrete cohort of formerly-convicted adults, and places operational and procedural duties on police, the Commissioner of Police, authorised judges and the oversight commissioner, with collateral effects for cohabitants, visitors, owners of premises and third-party device holders.

The Act allocates duties to agencies and officers, and prescribes limited rights and remedies for affected persons. Below are the principal duties and rights set out in the text, with section references.

Duties placed on police and the Commissioner of Police

• Authorisation of applications: An application for an order may only be made by a police officer or another person on their behalf, and only if the police officer reasonably believes the eligible person is likely to use a dedicated encrypted device to avoid detection and the application has been approved by a senior police officer (s 9(1)-(2)). The application must be accompanied by a senior police officer’s signed authorising document (s 10(2)).
• Notice to oversight commissioner: The Commissioner must ensure the oversight commissioner is given the information contained in the application and the accompanying authorisation, as far in advance of the application being made as reasonably practicable (s 11(1)-(2)).
• Service and record-keeping: The Commissioner must ensure orders are served, and must keep a record of the date on which a copy of an order is served on the subject (s 17(2), s 17(5)).
• Post-order reporting: The Commissioner must provide a report to the authorised judge and oversight commissioner no later than 60 days after the order ceases to be in force, with specified particulars about searches, items seized, evidence uncovered and any revocation applications (s 21(1)-(3)).
• Notice of searches when subject absent: The Commissioner must ensure the subject is given written notice as soon as practicable after a search if the subject was not present at the time of the search, specifying date and address or other description of the search (s 8(1)-(2)).

Duties placed on the authorised judge

• Procedural requirements before making an order: The authorised judge may only make an order if satisfied the person is an eligible person and is likely to use a device to avoid detection; and must ensure the oversight commissioner had a reasonable opportunity to make a submission (s 12(1)-(2)(a)). The judge may seek advice from the oversight commissioner (s 12(2)(b)).
• Record of reasons and evidence: If the judge makes an order, they must make a record of reasons and of the evidence used to support the decision (s 15(1)).

Duties placed on the oversight commissioner and Secretary

• Appointment and qualifications: The Secretary, in consultation with the Attorney General, must appoint an oversight commissioner who meets statutory legal qualifications, is employed in the Public Service, and is not a member of NSW Police Force (s 22(1)-(4)). The oversight commissioner must keep confidential files relating to applications (s 11(4)).
• Opportunity to be heard: The oversight commissioner must be given reasonable opportunity to make submissions to the authorised judge and may advise the judge (ss 11-12).

Rights and remedies for the subject

• Revocation applications to the Local Court: The subject may apply to have the order revoked (s 19(1)). The Local Court may affirm, vary the term of or revoke the order (s 19(4)). The Local Court may revoke only if satisfied the order is unreasonably onerous, the subject is not likely to use such a device to avoid detection, or the risk could be mitigated in another way (s 19(5)).
• Procedural limits on disclosure to the Local Court: Certain documents are not to be provided to the Local Court (documents that formed part of the original application and reasons recorded by the authorised judge), though the Commissioner may provide information it considers relevant (s 19(6)-(7)). The subject cannot apply for revocation within six months of service or of a prior refusal (s 19(8)).

Compulsory assistance and penalties

• Directions to provide assistance: A police officer may direct the subject to give reasonable and necessary information or assistance to view or enable access to data in identified computers (s 6(1)). Failure without reasonable excuse to comply is an offence punishable by imprisonment for up to 3 years (s 6(2)). The Act expressly provides that a claim of self-incrimination is not, by itself, a reasonable excuse for non-compliance (s 6(3)).

Procedural constraints and limits on police power

• LEPRA overlay: The Law Enforcement (Powers and Responsibilities) Act 2002 applies to searches under this Act, and its provisions impose additional limitations (s 5(2)). In addition, a strip search must not be carried out under this Act unless authorised under LEPRA Part 4, Division 4 (s 5(3)).
• Service requirement: No power may be exercised under an order before a copy of the order has been served personally on the subject or in accordance with an authorised substituted service (s 17(2)-(3); s 18 sets out substituted service process).
• Duration bounds: Orders must be for at least six months and no more than two years (s 17(4)).

Other statutory rights and duties

• Duty to keep records and confidentiality requirements are imposed on the oversight commissioner (s 11(4)) and on the Commissioner regarding service (s 17(5)).
• The Minister must review the Act after two years and table a report (s 25).

The Act thus creates obligations on police and executive officers to follow specified processes and recordkeeping, grants compelled-assistance powers against the subject with a penal provision, and preserves certain procedural safeguards in the form of judicial authorisation, oversight involvement and avenues for revocation in the Local Court.

The Act establishes a limited but serious criminal penalty and otherwise provides enforcement by administrative and search/seizure powers vested in police.

Criminal offence and penalty

• Failure to comply with a direction to assist: Section 6(2) creates a specific offence for a person given a direction under s 6(1)(a) or (b) to fail, without a reasonable excuse, to comply with the direction. The maximum penalty for that offence is imprisonment for three years. Importantly, s 6(3) states that it is not a reasonable excuse to refuse on the grounds that compliance would tend to incriminate the person or otherwise expose them to a penalty. The Act therefore removes the protection of self-incrimination as a statutory defence to non-compliance with these directions; non-compliance can attract a custodial maximum penalty.

Administrative enforcement by police powers

• Non-warranted search, stop and entry powers: When an order is in force, a police officer may, without a warrant, stop, detain and search the subject (but not another person), enter and search premises that are the subject’s residence or premises reasonably suspected to be owned, controlled or used by the person, and stop, detain and search vehicles in specified connections to searchable premises (s 5(1)(a)-(c)). These are powers to be exercised by operational police to locate devices or evidence and to use electronic equipment to inspect or search computers identified during the search (s 5(1)(e)).

• Seizure and detention of things: Under s 7, police may seize and detain any thing suspected on reasonable grounds to provide evidence of an offence involving a dedicated encrypted device, to be stolen, to provide evidence of a relevant offence under LEPRA Pt 4 Div 1, or to be a dangerous article under LEPRA. Those are administrative seizure powers tied to reasonable grounds.

Constraints on enforcement powers

• Application of LEPRA: Section 5(2) makes the Law Enforcement (Powers and Responsibilities) Act 2002 applicable to searches under this Act, meaning the additional statutory limits, safeguards and admissibility consequences in LEPRA apply. The Act expressly notes LEPRA section 32 and Part 15 as additional limitations to the exercise of the powers under s 5 (s 5(2) note). The Act also prohibits strip searches under its own powers unless they are authorised under LEPRA Part 4, Division 4 (s 5(3)). These references tie the exercise of operational powers to the procedural standards in LEPRA.

Operational preconditions for enforcement

• Service requirement: Section 17(2) provides that no power may be exercised under an order before a copy of the order has been served personally on the subject or in accordance with the substituted-service process in s 18. This is a statutory precondition to the exercise of the non-warranted powers in s 5.

• Time limits on orders: Orders have defined minimum and maximum durations: not less than six months and not more than two years (s 17(4)). The defined temporal boundaries shape how long enforcement powers under an order can be relied upon.

Reporting and oversight as enforcement adjuncts

• Reporting obligations: After an order ceases, the Commissioner must provide a report to the authorised judge and oversight commissioner containing specified information about searches, including dates, locations, particulars of persons and evidence uncovered, and any seizures (s 21). The requirement to record and report searches creates a post-hoc accountability channel.

• Oversight commissioner involvement: The statute mandates advance notice to the oversight commissioner about applications and secure storage of application materials (s 11), and gives the oversight commissioner a role in post-order revocation applications (s 20(2)). The oversight commissioner can also apply to the Local Court to have an order revoked (s 20(1)(b)).

Enforcement architecture in summary

• The Act couples non-warranted operational powers with judicial authorisation at the application stage, ongoing obligations to serve and report, and a significant criminal penalty for failure to comply with directions to facilitate access to data. The Law Enforcement (Powers and Responsibilities) Act 2002 functions as an overlay to limit and regulate operational conduct during searches. The primary criminal sanction created by the Act is the offence under s 6(2) for refusing to comply with police directions to access data.

The Act incorporates and cross-references multiple existing statutes, importing definitions and procedural constraints into its operation.

Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)

• LEPRA applies directly to searches conducted under this Act. Section 5(2) states that the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search carried out under this Act and the Act’s notes point to LEPRA section 32 and Part 15 as additional limitations on police powers under s 5. Section 5(3) further ensures a strip search may not be undertaken under the dedicated-device powers unless authorised under LEPRA, Part 4, Division 4. This means LEPRA’s warrantless-search safeguards, record-keeping, admissibility rules and specialised search procedures will shape operational compliance and evidence admissibility.

Crimes Act 1900 and related criminal statutes

• The definition of "dedicated encrypted criminal communication device" is borrowed from the Crimes Act 1900, s 192O via Sch 1. Serious criminal offences and other offence categories that determine eligibility and the scope of who may be targeted (Sch 1) draw heavily on provisions of the Crimes Act 1900 (including s 93S cross-reference via s 13(3)), the Commonwealth Crimes Act 1914, as well as drug supply, firearms and weapons statutes. The Act therefore connects the investigative regime to the substantive offences framework established in those Acts.

Local Court jurisdiction and judicial roles

• The Act creates a role for Local Court Judges who consent and are declared authorised judges under s 23. The Local Court is also the statutory forum for revocation applications by the subject and for applications by the Commissioner or oversight commissioner (Pt 5, ss 19-20). The Act places limits on what materials may be furnished to the Local Court (s 19(6), s 20(6)), which may affect the evidence available to the Court in considering revocation.

Administrative law and confidentiality regimes

• The Act mandates that the oversight commissioner must keep application documents secure and inaccessible to unauthorised persons (s 11(4)). The Act also restricts disclosure to the subject of reasons and documents forming part of the application (s 15(2)). These statutory confidentiality provisions will interact with general administrative-law transparency obligations and privacy frameworks, and, depending on other applicable statutes (not cited in the Act), may affect Freedom of Information considerations. The Act itself does not resolve potential conflicts with other openness or disclosure laws; it prescribes limited disclosure for the purposes of this regime.

Evidence and admissibility regimes

• Because LEPRA applies to searches, the rules about how LEPRA-treated searches affect admissibility of evidence will be relevant to the use of seized materials in subsequent prosecutions. The Act also obliges police to report details of searches and evidence uncovered to the authorised judge and oversight commissioner (s 21(2)(c)-(d)), which creates a record that may be material to later proceedings.

Criminal procedural protections and self-incrimination

• The Act explicitly curtails the use of a claim of self-incrimination as a defence to a direction to provide assistance to access device data (s 6(3)). How that interacts with common law privilege against self-incrimination or with other statutory protections is a textual tension the Act resolves in favour of compelling assistance for the specified directions. Any other statutory protections with constitutional or common-law weight are not addressed in the text.

Regulations, review and further legislative controls

• The Act authorises the Governor to make regulations not inconsistent with the Act (s 26). The Minister must conduct a statutory review after two years (s 25). The review process may prompt future legislative or regulatory amendments to better align this Act with other legal regimes.

In short, the Act does not operate in isolation: it imports definitions from the Crimes Act, the operational limits and procedures of LEPRA bind police conduct under the Act, Local Court processes are used for revocation and selection of authorised judges, and confidentiality and reporting obligations overlay administrative processes. Where the Act narrows or excludes defences (for example, as to self-incrimination for compliance with directions), it sets a statutory position that will interact with existing procedural and evidentiary frameworks.

The text includes internal amendment notes that record later modifications up to 2025. These are the amendment entries present in the provided statute text.

• Commencement: The Act commenced on 1 February 2023 (s 2). This sets the operative start date for application of the provisions.

• Amendments recorded in the text: The statute includes marginal amendment notes indicating the following changes from "Am 2025 No 61, Sch 2.34":

  • Section 18: There is an amendment note appended to s 18 identifying "Am 2025 No 61, Sch 2.34[2]". The substantive text of s 18 contains the substituted-service procedure and an example (email or electronic communication) in the body of the provision; the marginal note shows s 18 was amended in 2025.
  • Section 23: The provision on authorised judges is annotated with "s 23: Subst 2025 No 61, Sch 2.34[3]". The marginal note indicates s 23 was substituted by the 2025 amendment schedule.
  • Schedule 1: The schedule has an annotation "sch 1: Am 2025 No 61, Sch 2.34[4]". This records amendments to the Dictionary in 2025.

• Effect of the recorded amendments: The amendment notes show the Act was revisited in 2025 and at least the authorised-judge regime and substituted service provisions were changed or replaced at that time. The text now includes: (i) expanded substituted service pathways with judicial approval and criteria (s 18) including an example (email); and (ii) a reworked s 23 dealing with consent by Local Court Judges, declaration by the Attorney General, protections and selection constraints (s 23 as substituted). Schedule 1 also received changes in 2025.

• Statutory review requirement: The Act requires the Minister to conduct a review of its operation and policy objectives, commencing "as soon as practicable" after two years from commencement, and to table a review report within 12 months after the end of the period (s 25(1)-(3)). With a 1 February 2023 commencement, the review obligation would trigger planning around early 2025 and a report tabled by early 2026. This review obligation is itself a constitutionalised mechanism for legislative reconsideration and may have prompted or guided the 2025 amendments noted.

• Regulations and further amendments: Section 26 grants regulation-making power to the Governor for matters necessary to give effect to the Act. The Act therefore contemplates subordinate law-making which may supplement or clarify operational details; the provided text does not reproduce any regulations.

• Repealed schedules: The bottom of the text shows Schedules 2-4 repealed historically, but that is inherited statutory history and not part of the Act’s operative regime for orders.

This is a textual account of amendments visible in the provided source. The Act therefore has built-in periodic review and the record demonstrates legislative adjustments in 2025 to at least the substituted service and authorised-judge provisions and Schedule 1 definitions.

The text provided contains no reported judicial decisions or case law citations about the operation or challenge of this Act. It does however create internal procedural stages and judicial forums that structure the likely loci of any litigation or review: the authorised judge who decides applications (s 12), and the Local Court that hears revocation applications and applications by the Commissioner or oversight commissioner to revoke an order (ss 19-20). These are the statutory forums established by the Act.

What the Act itself indicates about potential litigation pathways and evidential materials

• Revocation process in the Local Court: Section 19 provides that the subject may apply to the Local Court to have an order revoked; the Commissioner of Police is the respondent. Section 20 allows either the Commissioner of Police or the oversight commissioner to apply to the Local Court to have an order revoked, with the respective counterpart serving as respondent. The Local Court may affirm, vary or revoke an order and is constrained to revoke only on specified grounds (s 19(4)-(5), s 20(4)-(5)). That creates an express statutory cause of action focused on judicial scrutiny in the Local Court on the limited grounds set out.

• Limitations on evidence and disclosure: The Act restricts the disclosure of application documents and the authorised judge’s recorded reasons to the subject and to the Local Court in certain proceedings (s 15(2), s 19(6)-(7), s 20(6)-(7)). Those restrictions will likely be a persistent feature of any litigation because they limit material available to a subject or to the Local Court in revocation proceedings. The Commissioner may, however, provide information it considers relevant (s 19(7), s 20(7)).

• No public record in the text of cases: The statute does not list any judicial decisions, appeals, or tests drawn from case law. The absence of litigation history in the text means one cannot draw on judicial interpretation or precedents from the source. Any court decisions interpreting the Act, the scope of s 6 compulsory assistance, the adequacy of LEPRA overlay, or the bounds of confidentiality would need to be located outside this text.

Potential litigative issues structurally suggested by the Act that may arise (but are not present in the source)

• Challenges around compelled assistance and self-incrimination: Because s 6(3) removes a claim of self-incrimination as a reasonable excuse to non-compliance, litigation may engage the limits of that provision and its interaction with other statutory or common-law protections. The Act itself does not provide judicial interpretations; the Local Court and appellate courts would be the fora to test those points.

• Procedural fairness and non-disclosure: The ex parte nature of applications (s 14(1)), the subject’s inability to make submissions pre-order, and the statutory withholding of reasons and supporting documents (s 15(2), s 19(6)) could give rise to procedural-fairness arguments in litigation. The Act, however, embeds those non-disclosure constraints, so judicial review would be conducted against that statutory framework.

• LEPRA compliance and admissibility: Because the Act requires compliance with LEPRA for searches (s 5(2)), any contested admissibility of evidence seized under the Act will involve LEPRA-based challenges in criminal prosecutions that follow.

The provided statutory text does not report any actual litigation or judicial pronouncements. Any current litigation history beyond the Act would have to be sourced from court databases and is not contained in the statute text supplied.

This Act contains multiple features that produce operational traps or non‑obvious legal consequences for practitioners and affected persons. The following are concrete, statute-grounded gotchas.

1. Ex parte applications and lack of notice to the subject (s 14(1))

• The person who will be the subject of an order is not told about the application and is not permitted to make a submission. That means orders can be made without adversarial testing before the authorised judge, and the protections of cross-examination and contesting the factual basis at the application stage are unavailable to the subject.

2. Reasons and underlying materials withheld (s 15(2), s 19(6), s 20(6))

• Although the authorised judge must make a record of reasons and evidence (s 15(1)), the subject and others are not entitled to those reasons or to documents that were part of the application (s 15(2)). Moreover, when the subject applies for revocation, the Local Court is not to be provided with the original application documents nor the authorised judge’s recorded reasons (s 19(6); s 20(6)). This restricts evidential material available in revocation proceedings and makes it difficult for a subject to test the basis of the original order.

3. Compelled assistance with limited claim of privilege (s 6(2)-(3))

• Police directions under s 6(1) can compel assistance to view or enable access to data on identified computers. Failure to comply without reasonable excuse attracts a maximum penalty of three years imprisonment (s 6(2)). Section 6(3) expressly states that the subject cannot rely on self-incrimination or exposure to penalty as a reasonable excuse. Practitioners must note that statutory non-disclosure protections may not shield a client from the compulsion; there is a direct criminal risk for what might otherwise be a privilege-based refusal.

4. Police may search without warrant but LEPRA applies (s 5(1)-(3), s 5(2) note)

• The Act authorises police to enter and search premises and vehicles, and stop and search persons, without a warrant in the specific context of an order (s 5(1)). But the searches are subject to LEPRA’s provisions (s 5(2)), including limitations under certain LEPRA sections. Practitioners must ensure operational compliance with LEPRA detail; improper or non-compliant searches under LEPRA could have admissibility consequences despite the order.

5. Service is a precondition to police exercise of powers (s 17(2)-(3), s 18)

• No power may be exercised under an order before a copy has been served personally on the subject or by substituted service authorised by a judge. The substituted service regime requires judicial approval and satisfaction of statutory criteria (s 18(2)-(4)), so police cannot lawfully rely on an order until service is effected in accordance with the Act. Failure to observe service requirements could render subsequent police action unauthorised.

6. Minimum and maximum order duration (s 17(4))

• Orders may be for no less than six months and no more than two years. A subject cannot apply for revocation within six months of a copy of the order being served or within six months of a prior revocation-application refusal (s 19(8)). This creates a relatively long period before a subject may seek judicial review on the merits, and the statutory revocation window is thus constrained.

7. Repeat application restrictions and required authorisation (s 9(3), s 9(2)(b), s 10(2))

• An application cannot be made within two weeks after a refusal unless new material is provided, and not within six months after revocation of an order (s 9(3)). The application must be approved by a senior police officer; the application must be accompanied by a signed document from a senior police officer authorising the application (s 9(2)(b), s 10(2)). Practitioners should verify authorising documents and timing restrictions when assessing whether an application was properly made.

8. Limited availability of materials in Local Court revocation proceedings (s 19(6)-(7), s 20(6)-(7))

• The Local Court is not to be provided with the original application materials or the authorised judge's recorded reasons, although the Commissioner may provide information it considers relevant. That places an evidential and procedural hurdle on a subject seeking revocation, since the Local Court will have to decide revocation applications with potentially limited access to the original material.

9. Broad definition of "computer" and scope of inspection (Sch 1)

• "Computer" is widely defined as an electronic device for storing, processing or transferring information (Sch 1). That definition encompasses many modern devices and data repositories. Combined with the authority to use electronic equipment to inspect or search computers identified during a search (s 5(1)(e)), the statute permits a broad sweep of data-holding devices and may bring in devices owned by third parties.

10. Confidentiality of oversight commissioner files (s 11(4))

• The oversight commissioner must keep application documents secure and inaccessible to unauthorised persons, which may limit transparency and FOI access. That confidentiality may restrict a subject’s or an outside party’s ability to obtain records about the grounds for an order.

Each of these features is statutory and must be managed operationally. For clients and counsel, the interaction of statutory secrecy, ex parte decision-making, compelled assistance with a penal sanction and the LEPRA overlay are the core practical pitfalls to identify and plan for in litigation strategy, compliance and operational policing.

Complying with the Act requires different actions depending on whether you are a police officer/Commissioner, an authorised judge, an oversight commissioner, or the subject or another person affected by an order. The following are statute-grounded steps and checklists for each role.

For police officers and the Commissioner of Police

• Ensure applicant eligibility and authorising documentation: Before applying, confirm the targeted person is an "eligible person" under Sch 1 (convicted of a listed serious criminal offence and 18 or older on application day). Obtain and retain the senior police authorisation required by s 9(2)(b) and ensure the application affidavit includes the specified contents in s 10(1) (identity, convictions if any, grounds, evidence that the person is likely to use such a device, prior orders, identities of others who may be affected, adverse information, and period sought). Attach the signed authorising document required by s 10(2).

• Advance notice to oversight commissioner: Give the oversight commissioner the notice containing the application information and the accompanying authorisation as far in advance as is reasonably practicable (s 11(1)-(2)). Keep a record of this notice and any responses.

• Prepare for ex parte proceedings: The statute anticipates non-adversarial applications (s 14(1)-(3)); be prepared to answer judicial queries by audio or audio-visual link and to provide any additional information the judge requests (s 14(3)). Ensure that the judge is satisfied the oversight commissioner had a reasonable opportunity to make a submission (s 12(2)(a)).

• Service procedures: After the order is made, ensure personal service is effected before exercising powers under the order (s 17(2)-(3)). If personal service is impracticable after reasonable attempts, apply to an authorised judge for substituted service under s 18. In applying for substituted service, document the reasonable attempts made and evidence why substituted service is likely to communicate the notice. Comply with any conditions attached to an order for substituted service (s 18(5)).

• Operational compliance with LEPRA: When exercising search, seizure and stop-and-search powers, comply with the Law Enforcement (Powers and Responsibilities) Act 2002 as required by s 5(2), including the particular procedural safeguards and limitations in LEPRA. Do not undertake a strip search under the dedicated-device power unless authorised under LEPRA Part 4, Division 4 (s 5(3)).

• Direction to assist and procedural steps: If issuing a direction under s 6(1), ensure the direction is strictly within the terms of the subsection (to give reasonable and necessary information or assistance to view, or enable access to, data on an identified computer). Record service of the direction and provide the statutory information about the direction. Keep a record of compliance or non-compliance and any steps taken to enable access.

• Seizure steps and reasonable grounds: Exercise seizure powers under s 7 only where you have reasonable grounds that the thing may provide evidence of an offence related to a dedicated encrypted device, is stolen, provides evidence of a relevant offence under LEPRA or is a dangerous article. Keep detailed contemporaneous records of the grounds for seizure, chain of custody, and how seized items may be used.

• Notices to the subject after searches: If you search premises or a vehicle under the order and the subject was not present, ensure written notice is given as soon as practicable with the date and address of the search (s 8). Keep copies and service records for reporting and audit.

• Post-order reporting obligations: Compile the detailed report required by s 21 as soon as practicable, and in any event within 60 days after the order ceases, including number of searches, particulars for each search (date, location, person/vehicle/premises searched, type and duration, number of non-police persons present or adversely affected), details of evidence uncovered and seized, and whether a revocation application was made and its outcome.

For authorised judges

• Ensure procedural prerequisites are met: Before making an order, ensure the applicant is a police officer or person on the officer's behalf, that the applicant has senior police officer approval (s 9(2)(b)), and that the oversight commissioner has been given a reasonable opportunity to make submissions (s 12(2)(a)). Satisfy yourself the person is an eligible person and is likely to use a dedicated device to avoid detection (s 12(1)).

• Record reasons and evidence: If making an order, comply with s 15(1) and make a record of reasons and the evidence relied upon. Understand that, absent express provision, the person is not entitled to receive those reasons or documents (s 15(2)), but the record must still be prepared and retained.

• Consider oversight input: You may ask the oversight commissioner for advice and should do so when appropriate (s 12(2)(b)). You may also question the police officer or oversight commissioner at any time and in any way appropriate (s 14(3)).

• Authorise substituted service only when criteria met: If an application for substituted service is made under s 18, ensure the Commissioner has made reasonable attempts at personal service, that substituted service is likely to communicate notice, and that substituted service is appropriate for the order's purposes (s 18(3)-(4)). Attach any appropriate conditions (s 18(5)).

For the oversight commissioner

• Secure handling of materials: Ensure the oversight commissioner keeps applications and accompanying documents secure and accessible only to authorised persons (s 11(4)). Keep records of the notice given before the application, preserve any submissions provided to the authorised judge, and prepare to receive the application and annexed material after the authorised judge makes a decision (s 11(3)).

• Participate where appropriate: Use the reasonable opportunity to make a submission when provided to do so and be prepared to give advice to the authorised judge (ss 11-12). Exercise care in handling sensitive operational intelligence and classified information.

For the subject of an order

• Service and timing: Recognise that the order takes effect when made but police may not exercise powers under it until the order is served (s 17(1)-(3)); keep records of service dates if service occurs. If you receive a copy of an order, note that you cannot apply for revocation within six months of the date of service except as provided (s 19(8)).

• Compliance with directions: Directions to provide information or assistance under s 6(1) are criminally enforceable if not complied with without reasonable excuse (s 6(2)). Section 6(3) removes self-incrimination as a reasonable excuse for non-compliance. Seek legal advice immediately if given a direction; weigh the statutory obligation against other rights and consider legal avenues for challenge. Where the direction would require turning over devices or passwords, preserve forensic integrity and seek legal counsel.

• Revocation application: You may apply to the Local Court to have the order revoked (s 19(1)). The Local Court may revoke only on the statutory grounds in s 19(5) (order unreasonably onerous, subject unlikely to use such a device, or the risk could be mitigated in another way). Note that the Local Court is not to be provided with the original application documents or the authorised judge’s recorded reasons (s 19(6)), so plan evidentiary strategy accordingly.

• Keep records and seek immediate advice: Because material that formed part of the application is withheld, contemporaneous records of searches, notices of searches (s 8), and any interactions with police will assist in any future application for revocation or complaint. Preserve device integrity and avoid actions that might impede forensic examination or contravene police directions; consult counsel about the risk of prosecution under s 6(2).

For businesses, third parties and cohabitants

• If premises or a vehicle are searched under an order, persons present should request written confirmation of the search and seek legal advice about rights and obligations. If asked to assist in accessing a device, be aware that the s 6 compulsion and penalty expressly apply to the person against whom an order is in force; the Act does not in its terms create an identical offence for other third parties, but third parties may be affected by LEPRA, police directions under other powers, or by seizure of devices (s 5, s 7). Seek legal advice promptly when subject to a search or person-directed assistance.

Administrative compliance and records

• Maintain accurate logs of attempts at service, notices given under s 8, senior police authorisations for applications, and detailed records of searches, seizures, chain-of-custody and reports prepared for s 21. The Act creates explicit reporting obligations and documentation requirements that will be central to demonstrating procedural compliance.

Regulatory and review obligations

• The Minister must commence a review of the Act after two years from commencement and table a report within 12 months after the end of that period (s 25). Agencies should prepare records and metrics to assist the review, including numbers of applications, orders made, searches conducted, seizures, prosecutions for non-compliance and outcomes of revocation applications.

Following these statute‑specified steps will align operational and legal practice with the Act. Parties should also account for the LEPRA overlay when conducting searches and for the confidentiality limits on disclosure when preparing for revocation or judicial scrutiny.