The NSW Council for Civil Liberties (NSWCCL) and Aboriginal Legal Service (NSW/ACT) Limited are deeply concerned by the potential implications of the Crimes and Other Legislation Amendment (Further Organised Crimes Reforms) Bill 2026 (the Bill).

The Bill is presented as a response to organised criminal activity. Though a legitimate public objective, any legislation which seeks to restrict civil liberties must be necessary, proportionate and limited to the purpose of which it was introduced. It also must have appropriate safeguards and oversight. We are concerned that the Bill confers broad and intrusive powers which could extend beyond its stated objectives. This creates a real risk that extraordinary powers introduced for exceptional circumstances may become normalised as ordinary tools of surveillance, and punishment. Moreover, the Bill risks expanding state power at the expense of established rights, including privacy, right to not self-incriminate, and freedom of association.

Our concerns are heightened by the Government's subsequent announcement on 7 September 2026, expanding the definition of 'Serious Children's Indictable Offences'. Subjecting children, whom the Premier admits are victims of exploitation, to adult courts and adult penalties is a regressive step that undermines the youth justice system and fails to address the root causes of systemic crime.

We submit that the NSW Parliament should not pass the Bill in its current form. At minimum, we submit that the most intrusive provisions of the Bill should be withdrawn or substantially amended, and that the Law Enforcement Conduct Commission (LECC) must undertake a mandatory review of the changes made to the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) under the bill.

Without limiting our border concerns, we identify the following areas of specific concern:

Digital Evidence Access Orders

We are concerned by the proposed expansion of digital evidence access orders under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). The Bill proposes to allow police to seek an order in relation to a digital device, such as a phone or a computer, that has been lawfully seized outside of an existing search warrant, where there is reasonable suspicion that the data on the device is connected to or relevant to the investigation of an ‘organised crime offence’. The proposed definition of an organised crime offence is explored in further detail below. It also seeks to increase criminal penalties for failing to comply with a DEAO to 7 years. 

In our submission, there is no deficiency in the existing legislation which justifies the creation of a substantially more oppressive power. LEPRA already contains provisions which enable police to seize devices and obtain judicial authorisation to access digital evidence in connection with a search warrant.

DEAOs - proposed s 76AZE(4): In the event that Schedule 2 of this bill, relating to DEAOs, is not withdrawn, at the minimum, we recommend that “suitable person” be replaced by “support person” in conformity with the language of s 30(a) of LEPRA to promote consistency and coherence in the safeguards for children under the Act. There is existing judicial consideration of s 30(a) that should guide and inform what will constitute “reasonable steps” in relation to having a support person present for a child in the company or custody of police.

Defining ‘Organised Crime Offence’

We are concerned that the proposed definition of ‘organised crime offence’ as set out in the proposed s76AS of the Bill is impermissibly broad. Section 76AS(2) provides a non-exhaustive list of circumstances in which a serious offence may be connected to a serious crime. This means, for example, that a serious offence committed by two or more people may fall within this definition without any requirement of planning, systemic activity, or shared purpose. 

This is much broader than comparable statutory definitions. By way of example, s54B of the Australian Crime Commission Act 2002 (Cth) requires that to be ‘serious and organised crime’, multiple characteristics of organised criminal activity must be present, including substantial planning or organisation and the use of sophisticated methods or techniques. Separately, s93S of the Crimes Act 1900 (NSW) requires a ‘criminal group’ to have specified and serious criminal objectives. 

We further hold concerns that the broad scope of this definition may have wide ranging implications, including lowering the threshold for intrusive investigative powers under the proposed digital order access scheme. 

Recommendation: Narrow the proposed s76AS so that the definition is exhaustive, requires a combination of relevant characteristics and requires a shared criminal purpose.  

Definition of ‘serious offence’ in proposed s 76AR: 

We are also concerned that the inclusion of offences under Part 3A Division 5 of the Crimes Act may have the unintended consequence of contributing to the over-criminalisation of marginalised groups, especially Aboriginal and Torres Strait Islander people, who are disproportionately charged with criminal group and criminal association offences (see, eg, NSWLRC Consorting Issues Paper 2014; Law Enforcement Conduct Commission consorting law review 2023). 

Contrary to the espoused intention of the proposal, a disproportionate number of children that Aboriginal Legal Service (NSW/ACT) provides legal services to are charged with offences under Part 3A Division 5, including offences carrying a term of imprisonment of 10 years or more. 

Even if overall charge numbers for offences in this Division carrying 10 years or more imprisonment are low, our experiences in practice in relation to charges against children suggest that the proposed reforms will not necessarily target the individuals sought to be captured by this proposal.

Punishing Exploited Children and Perverting Youth Justice

We echo the urgent warnings of the National Aboriginal and Torres Strait Islander Legal Services (NATSILS) regarding the proposal for expansion of 'Serious Children's Indictable Offences'. The Premier has explicitly acknowledged that sophisticated criminal networks increasingly recruit and exploit teenagers. Despite recognising these children as victims of criminal exploitation, this legislative package chooses to punish them with adult sentences in adult courts rather than targeting the syndicates pulling the strings.

Decades of criminological evidence demonstrate that incarcerating children and funneling them through adult systems severely increases reoffending rates. Instead of delivering community safety, this knee-jerk 'tough on crime' rhetoric fractures families and locks children into lifelong cycles of the criminal justice system. Parliament must reject amendments that treat exploited minors as hardened adult offenders.

The Risk of Self Incrimination

We are concerned by the potential implications on the privilege against self-incrimination. The proposed section 76AZG(2) expressly provides that it is not a reasonable excuse to refuse compliance with a digital evidence access order on the basis that doing so may tend to incriminate a person or expose them to a penalty. 

In practice, this means that individuals may be required to provide any “any information or assistance” necessary to police including providing passwords, access codes, and biometric data such as fingerprints and retina scans. Moreover, the wording of the Bill is broad enough to include data held on the cloud, and in messaging platforms, social media and email accounts.

Individuals must comply with the order within seven days and failure to comply may result in a penalty of seven years imprisonment. Given the significant implications of non-compliance and relatively short timeframe, this poses a risk that individuals may be required to comply without the benefit of legal advice or a complete understanding of what the order requires.  

Recommendation: The Bill should remove the proposed section 76AZG(2) in its entirety, require that orders be restricted to certain types of information (e.g. held locally or otherwise) and if necessary, retain the current penalty for non-compliance as maximum five years imprisonment. 

Telephone Applications

We are concerned that the procedural safeguards which apply to telephone digital evidence access order applications are weaker than those made in person or electronically. Whilst in person and electronic applications must be verified by oath or affirmation, or by affidavit, telephone applications (including applications via radio), have no such requirement. 

As digital evidence access orders may compel access to highly personal information, all applications should be subject to consistent verification requirements, regardless of how they are made.

Recommendation: Require that telephone digital evidence access order applications be verified by oath or affirmation.

Facial recognition and identity matching

We are concerned by the proposed changes to the Road Transport Act 2013 (NSW) which authorise the participation of government agencies in face matching services. The proposed s271A provides that agencies may collect or use information for ‘authorised purpose’ and/or release and disclose face-matching service information with other participants or the Commonwealth government. Subsection (3) also explicitly provides that the Privacy and Personal Information Protection Act 1998 does not apply to the extent of any inconsistency.

We are concerned that this creates a broad opportunity for the use and disclosure of sensitive biometric information. Facial images are personal and persistent identifiers which can enable tracking, identification and surveillance across public and private spaces.

Moreover, privacy law should not be readily circumvented. If anything, the sensitivity of biometric information requires stronger protections than ordinary personal information, not weaker ones.

Recommendation: If the proposed s271A is to be retained, subsection (3) should be removed.

Toll Camera Images and Surveillance

We are concerned by the proposed changes to the Roads Act 1993 (NSW) for the collection, storage and disclosure of toll camera images. The Bill provides that approved toll cameras may photograph vehicles, drivers and passengers, including passengers under 16 years of age.

The use of toll camera images for purposes relating to the NSW Police Force is proposed to be restricted for specific purposes, such as lessening a serious threat to health and safety or a person. However, the proposed changes risk normalising mass collection of location and association data about people who are not suspected of wrongdoing. This might thus affect freedom of movement and association, and the ability of people to participate in public life without being subjected to pervasive surveillance.

Recommendation: At a minimum, remove the proposed s261F(c) or in the alternative, ‘or health or safety’ in the same provision.