Pin Code for Mobile Phones
Human rights versus the law – which one prevails?
In Queensland there is a special piece of law known as the Human Rights Act 2019. This legislation commenced on 1 January 2020 and is special because it, in many circumstances, is more important and takes priority over every other piece of legislation. Some but not all jurisdictions around the world have similar pieces of legislation.
The main objects of the Act are to:
- help build a culture in the Queensland public sector that respects and promotes human rights
- protect and promote human rights
- help promote a dialogue about the nature, meaning and scope of human rights.
The Act is modelled on international human rights law and protects a wide range of fundamental human rights, such as the recognition and equality before the law, the right to life, the freedom from forced work, and the freedom of thought, conscience, religion and belief. It is therefore seen as an overarching piece of law, that sits above all others, and must be taken into account, even if it is contrary or contradicts existing law.
Refusing to provide PIN code offence
It is an offence to refuse to provide the access code if ordered by a police officer pursuant to a warrant. It is in fact a serious offence and will attract a term of imprisonment, even for first time offenders. The reason why this offence is viewed so seriously is clear. If a person were to refuse to provide their access details the police could, and usually are, significantly hampered in their investigations and what they can do with their policing powers. By imposing such significant penalties the courts are sending the message to anyone who commits this offence that they have very strong reasons to comply with the police officer’s order.
Once the person provides the access code, and the police are able to view the contents of the phone, anything on the phone, including messages, notes, emails and photos become evidence and are they admissible in proceedings against the person. These usually relate to drug or child pornography related offences but can include any offence.
The incident
Our office was recently involved in the successful defence of a man charged with a criminal offence in which we successfully argued that the Human Rights Act 2019 should be taken into account and prevail.
On 11 July 2022 the police executed a search warrant and the warrant gave them the extra power to force our client to provide the PIN code to his mobile phone. Our client, being a man of the Islamic faith, instructed that the reason he refused to provide the PIN code was because his phone contained sensitive, personal and private material relating to his wife and son – including photos of his wife without the appropriate religious headware and photos of his young son in states of undress. He instructed that in accordance with his religions beliefs, the disclosure or viewing of such material by persons other than him were strictly forbidden.
Based on our client’s instructions, therefore, his defence was that he had a ‘reasonable excuse’ for not providing the PIN code to his phone because it would offend his religious beliefs. As part of the defence, the Human Rights Act 2019 needed to be taken into account and in particular the provision that protects the rights of religious beliefs and practices.
The trial
This therefore set the stage for a very interesting trial. The offence provision allows for a defence if the person refusing to provide the access information has a ‘reasonable excuse’. This is not defined under the legislation, but is referred to loosely in case law. As to what constitutes a ‘reasonable excuse’, an objective test is to be applied. This of course raises the questions – in accordance with whose standards is the test to be applied, and is there scope for differing religious beliefs in applying this test?
We were not able to locate any precedent in Queensland which determined whether or not the excuse the man provided would constitute a ‘reasonable’ one and so his situation was a novel one. In fact, there was very limited case law anywhere around the world. The court would therefore be tasked with resolving a very difficult question – when there is conflict between the Human Rights Act 2019, and another piece of legislation, how is to be balanced and which one prevails?
The matter proceeded to trial before the Beenleigh Magistrates Court. In order to properly defend the charge, we retained and called an expert witness to adduce evidence that the disclosure or viewing of the sensitive material referred to above is strictly forbidden in the Islamic faith.
We required a person of high standing who is considered to be an expert in Islamic teachings to attend court to provide evidence to this effect, and called a man who held a Masters in Islamic Studies from Jamia Ashrafia, Pakistan. He was the Imam of the Holland Park Mosque, which is the Mother Mosque of Queensland, and was therefore amply qualified to give evidence about Islamic practices.
This man supported our client’s instructions and provided evidence to the court that it is contrary to Islamic religions practices to disclose such material to such people. Our argument was ultimately successful and the Magistrate dismissed the charge against our client. This matter, being so novel, will now no doubt lay the foundation for similar arguments across Queensland and Australia.
If you’re needing assistance with legal matters or determining your legal rights, Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today.
