Section 34 of the Cybercrime Code Act 2016 deals with compelled assistance. Its most important feature is who it does not reach.
Section 34
A member of the Police Force may, upon production of a search warrant obtained under Sections 32 and 33, require a person who is not a suspect of an offence but is in possession or control of an electronic system or device, data or thing that is reasonably required for the purposes of an investigation or proceeding, to enable and assist him, if required, to —
(a) access and use an electronic system or device, data or thing; or
(b) obtain and copy data; or
(c) use an electronic system or device, or thing to make copies; or
(d) obtain an output from an electronic system or device, or thing in a format that can be read.
“A person who is not a suspect”
Section 34 applies only to a person who is not a suspect of an offence. A suspect cannot be required under this section to unlock a device, supply a password, or decrypt data.
That aligns the section with section 37(10) of the Constitution, which provides that no person shall be compelled in the trial of an offence to be a witness against himself, and with section 42(2), which requires a person under arrest or detention to be informed of the right to remain silent.
The exclusion is a deliberate legislative choice, and it is the single most important protection in Division 1.
Section 33(a) and (b) allow an officer to direct an occupant of the private place to operate a device — and those paragraphs contain no exclusion for suspects.
The tension between the two sections is real. The better view is that the express exclusion in section 34, read with sections 37 and 42 of the Constitution, means a direction under section 33 cannot be used to compel a suspect to do what section 34 says they cannot be required to do.
No PNG case has decided the point. A person who is a suspect, or who may become one, should say so and seek legal advice before complying.
Who can be required to assist
| Person | Within section 34? |
|---|---|
| The suspect | No — expressly excluded |
| An employer or system administrator holding the suspect’s work account | Yes, if not themselves a suspect |
| An ICT service provider holding the data | Yes — and see also s 35 and s 39 |
| A family member sharing the device | Yes, if not a suspect |
| A bank or employer holding relevant records | Yes |
Production of a warrant. The power is exercisable “upon production of a search warrant obtained under Sections 32 and 33”. No warrant, no requirement — and the person is entitled to see it.
Possession or control. The person must be in possession or control of the system, device, data or thing. A person who has neither cannot be required to assist.
What assistance can be required
The four paragraphs are practical rather than open-ended: accessing and using the system, obtaining and copying data, using the system to make copies, and producing a readable output. That is the work of retrieving evidence from a system the assisting person understands and the officer may not.
Section 34 creates no offence for refusing to assist, and states no penalty. Contrast section 36(4), which makes failure to comply with a preservation notice an offence carrying 12 months or K10,000, and K100,000 for a body corporate.
That does not make section 34 unenforceable — a court order under section 35 or section 37 can compel production, and for a provider section 44(1)(d) makes non-compliance with a court order a crime carrying 25 years. But section 34 itself carries no sanction.
If you are asked to assist
- Ask to see the warrant. Section 34 requires its production.
- Establish whether you are a suspect. If you are, section 34 does not apply to you.
- Ask what is sought. The requirement extends only to what is reasonably required for the investigation or proceeding.
- Record what you did. A note of what was accessed, copied and handed over protects both sides.
- Consider confidentiality obligations. Assisting under a warrant is a lawful excuse, but where a court order requires confidentiality, section 45 makes disclosure of the investigation a crime.
Sources
- Cybercrime Code Act 2016 — ss 32, 33, 34, 35, 36, 37, 39, 44, 45
- Constitution — ss 37, 42, 44, 49
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.