When They Refuse: Encryption, Production Orders and Sentencing for Non-Compliance

A longstanding means by which law enforcement officials have sought access to encrypted data is through a court order requiring a person to provide access to the encrypted data in an unencrypted form. In order to combat evidence of extensive non-compliance with such orders, particularly where more serious offending is being investigated, in 2018 the Federal Parliament increased the maximum sentences that could be imposed for non-compliance with a production order. This article considers whether that change is sufficient to deter non-compliance with a production order, and whether the higher maximum permissible sentence may infringe the requirements of sentencing proportionality.