Information Stored Electronically and Search Warrants (Qld)

By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 14 April 2026.

At common law, the privilege of self-incrimination is a person's fundamental right not to be compelled to provide documents or answer questions in circumstances where the information or answers may incriminate the person. This privilege has been recognised as a cornerstone of criminal justice systems, protecting individuals from being forced to provide evidence against themselves. However, it is possible for this common law right to be curtailed by statute in appropriate circumstances, particularly where public interest considerations outweigh individual protections.

In a recent Queensland Court of Appeal decision, the court considered how the right not to self-incriminate relates to requests by police, under a search warrant, for the access codes for a mobile phone or similar device in order to access information stored electronically. This case highlighted the tension between traditional legal protections and modern law enforcement needs in the digital age. In the context of information stored electronically, a person may incriminate themselves by providing access codes to the device where there is information on the device that enables the police to charge the person with a criminal offence.

The increasing prevalence of digital devices in criminal investigations has created new challenges for both law enforcement agencies and the legal system. Mobile phones, tablets, laptops and other electronic devices often contain vast amounts of personal information, communications, photographs, and data that may be relevant to criminal investigations. This digital evidence can be crucial in establishing criminal liability, making access to such devices a priority for investigating officers.

Wasmuth v Commissioner of Police

Background of the Case

When the Court of Appeal heard the case of Wasmuth v Commissioner of Police 2018, the law in place at the time the offending took place (16 August 2016) did not expressly curtail the right not to self-incriminate. This case became a landmark decision that exposed a significant gap in Queensland's legislative framework regarding electronic devices and search warrants.

The case arose when police executed a search warrant and sought to compel Ms Wasmuth to provide access codes to her mobile phone. The prosecution argued that providing the passcode was merely facilitating access to evidence rather than providing incriminating information directly. However, the defence successfully maintained that the act of providing the correct passcode would demonstrate knowledge and control of the device, potentially incriminating the defendant.

Court Decision and Reasoning

The defendant in the matter was deemed to have 'had a lawful excuse for failing to provide to the police officer the access information to the phone. That lawful excuse was her right to insist upon her privilege not to incriminate herself by demonstrating the extent of her knowledge of the information necessary to access the phone and its data.'

The Court of Appeal recognised that compelling someone to provide device access codes could potentially breach the privilege against self-incrimination. The court reasoned that knowledge of the passcode itself could be incriminating, as it demonstrates possession, control, and intimate knowledge of the device and its contents.

The conviction against the defendant in the matter was quashed. This decision sent shockwaves through law enforcement agencies across Queensland, as it effectively prevented police from compelling suspects to unlock their electronic devices during investigations.

Legislative Amendments

Government Response

In response to the decision, the Queensland Government moved swiftly to close what it perceived as a loophole that could hinder criminal investigations. The legislation was amended through the addition of s 154B to the Police Powers and Responsibilities Act 2000, which provides that a person is not excused from complying with orders in a search warrant about information necessary to access information stored electronically (such as the provision of passcodes) on the ground that complying with these orders may tend to incriminate the person or make the person liable to a penalty.

New Criminal Offences

Section 205A was also added to the Queensland Criminal Code:

A person who contravenes—

(a) an order made under the Police Powers and Responsibilities Act 2000, section 154(1) or (2), 154A(2) or 178A(1); or

(b) an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2);

commits a crime.
Maximum penalty—5 years imprisonment.

These amendments provide that the right to immunity from prosecution, on the basis of self-incrimination, is no longer available to a defendant who has been ordered to give police access to information stored electronically. The law states that a defendant must provide passcodes to a device such as a mobile phone when ordered to do so under a search warrant or face prosecution under s 205A of the Criminal Code and be subject to the maximum penalty of imprisonment for five years.

These legislative provisions amount to an express abrogation or curtailment of the right to claim privilege against self-incrimination. The amendments represent a significant shift in the balance between individual rights and law enforcement powers in the digital age.

What Do the Changes Mean?

Practical Implications

When you are ordered to provide information stored electronically to police by a search warrant issued under s 151 of the Police Powers and Responsibilities Act 2000 you cannot any longer refuse to provide the information, by relying on the privilege not to self-incriminate.

If you are ordered to provide information stored electronically, you must provide police with the passcodes to the relevant devices. If you fail to do so you may be charged under s 205A of the Criminal Code which attracts a maximum penalty of 5 years imprisonment.

Scope of Electronic Information

The amendments apply broadly to various types of electronic devices and storage systems, including smartphones, tablets, laptops, external hard drives, cloud storage accounts, and encrypted files. The legislation recognises that criminal evidence increasingly exists in digital formats, and law enforcement agencies require appropriate tools to access this evidence during legitimate investigations.

Search Warrant Requirements

Obtaining Valid Warrants

Police must still obtain properly authorised search warrants before compelling individuals to provide electronic access information. Under the Police Powers and Responsibilities Act 2000, search warrants must be issued by magistrates or justices of the peace based on reasonable suspicion that evidence of criminal activity exists on the electronic device.

The warrant application process requires police to demonstrate that the search is necessary for the investigation and that less intrusive means of obtaining evidence have been considered. Courts retain discretion in issuing warrants and must balance law enforcement needs against privacy rights and the reasonableness of the proposed search.

Limitations and Safeguards

Despite removing the self-incrimination privilege, certain limitations remain on police powers. Search warrants must be specific about the devices to be searched and the type of information sought. Police cannot conduct fishing expeditions or unlimited searches of electronic devices without proper justification.

Additionally, any information obtained through compelled disclosure of passcodes must still comply with rules of evidence and may be subject to exclusion if obtained improperly or in violation of other legal rights.