Phone and computer offences in Queensland

The Queensland offences

Section 408E is the charge most often laid against employees. Looking up a customer, a partner or a friend on a workplace system you have lawful access to, for a purpose you were not authorised to use it for, is captured. It has been repeatedly prosecuted against people in government and financial roles.

Intimate images and the consent question

Section 223 makes it an offence to distribute an intimate image of another person without their consent, in a way that would cause the person distress reasonably arising in all the circumstances. Section 229A covers threatening to distribute one.

The key points people get wrong:

• Consent to the image being taken is not consent to it being distributed. Those are separate consents.
• Distribution includes sending to one person, not just posting publicly.
• A court can make a rectification order under section 223(4) requiring you to take reasonable steps to remove, retract, recover or delete the image.
• The federal offence in section 474.17A of the Criminal Code Act 1995 (Cth) can also apply, with a 7 year maximum, and the eSafety Commissioner has separate civil powers under the Online Safety Act 2021 (Cth).

How devices become evidence

Police can seize and examine a phone or computer under a search warrant, and under section 154 of the Police Powers and Responsibilities Act 2000 (Qld) can obtain an order requiring you to provide access information, meaning a passcode, PIN or biometric. Failing to comply with such an order is an offence.

That means the right to silence does not extend to your passcode once an order is made. It does not follow that you should hand over a device or unlock it voluntarily. Get advice first, because a voluntary consent search removes arguments about the scope and lawfulness of what was extracted.

A full forensic extraction recovers deleted material, location history, cloud backups and app data. Deleting things after you become aware of an investigation is treated as consciousness of guilt and can be charged separately as destroying evidence under section 129 of the Criminal Code.

Defences and mitigation

• Authorisation, section 408E(4). It is a defence to prove the use was authorised, justified or excused by law. Employment policies, delegated access and IT roles all bear on this.
• Attribution. The prosecution must prove you were the person at the keyboard. Shared accounts, saved credentials and family devices create genuine doubt.
• Consent, for section 223. A live issue where images were exchanged in an ongoing relationship, though consent to distribution must be proved separately.
• Quantifying detriment. The $5,000 threshold in section 408E(3) doubles the maximum. Prosecution estimates of loss in computer misuse cases are often generous.
• Early removal. Where images have been distributed, taking them down immediately and cooperating with a rectification order is real mitigation.