Purpose of the Bill

The purpose of the Surveillance Legislation (Confirmation of Application) Bill 2024 (the Bill) is to clarify that information obtained under specific warrants issued to the Australian Federal Police, under either the Surveillance Devices Act 2004 or the Crimes Act 1914, as part of Operation Ironside was lawfully obtained and not intercepted while passing over a telecommunications system.

Background

The Bill arises in the context of Operation Ironside, an Australian Federal Police (AFP) major organised crime investigation undertaken between 2018 and 2021 targeting transnational and serious organised crimes, including large importations and manufacturing of illicit drugs. Operation Ironside was a joint operation between the AFP and United States Federal Bureau of Investigations (FBI). Both the AFP and FBI monitored criminals’ encrypted communications, sent using an encrypted messaging application called ‘AN0M’. As stated by the AFP:

Covertly run by the FBI, AN0M was installed on mobile phones that were stripped of other capability. The mobile phones, which were bought on the black market, could not make calls or send emails. They could only send messages to another device that had the organised crime AN0M app. Criminals needed to know a criminal to get a device.

The devices organically circulated and grew in popularity among criminals, who were confident of the legitimacy of the app because high-profile organised crime figures vouched for its integrity. These criminal influencers put the AFP in the back pocket of hundreds of alleged offenders.

The AFP has indicated that in Australia as of June 2024, there have been ‘392 alleged offenders charged with 2355 offences, such as trafficking illicit drugs, money laundering and dealing in the proceeds of crime.’

Some of those arrested have since challenged the admissibility of evidence obtained by the AFP. In the Second Reading Speech for the Bill, this was discussed by the Attorney-General who explained:

Copies of communications sent using the AN0M application were transmitted to servers in Australia. The AFP obtained evidence from those servers in accordance with warrants independently issued under the Surveillance Devices Act 2004 and Crimes Act 1914.

The AFP's collection of evidence from the AN0M application has been challenged by defendants in a prosecution arising from Operation Ironside. The defendants allege that the collection of evidence from the AN0M application involved the interception of communications pursuant to the Telecommunications (Interception and Access) Act 1979, and therefore required warrants to be obtained under that act—rather than under the Surveillance Devices Act.

The Supreme Court of South Australia and the South Australian Court of Appeal found that the information collected using the AN0M application was not obtained through an interception of communications pursuant to the Telecommunications (Interception and Access) Act.

The bill is consistent with the decisions of the Supreme Court of South Australia and the South Australian Court of Appeal, by providing that:

• information, or a record, obtained under a relevant warrant is taken for all purposes not to have been obtained by intercepting a communication, and
• information, or a record, obtained in reliance, or purported reliance, on a relevant warrant is taken for all purposes to have been obtained under that warrant.

South Australian litigation

As outlined in the Explanatory Memorandum (p. 2), two South Australian cases were of significance, the first being a Supreme Court matter,[1] and the second being a Court of Appeal matter.[2] Both cases considered whether AN0M involved interception of communications within the meaning of the Telecommunications (Interception and Access) Act 1979 (TIA Act).

In the Court of Appeal matter, the Court stated that, relevantly, two (out of six) questions concerned whether the AFP’s conduct in obtaining evidence of the AN0M communications involved communications passing over a telecommunications system, contrary to subsection 7(1) of the TIA Act. The South Australian Office of the Director of Public Prosecutions (SAODPP) discussed the issue raised in this case:

The police in various states, armed with the evidence provided by the text messages, then moved to arrest dozens of alleged offenders. The evidence against them would, in the main, be provided by the text messages sent between the alleged offenders. Those people charged with offences based on the text messages challenged the legality of the police operation. If the courts were to find that the operation was not legal, then the evidence obtained would not be admissible in criminal proceedings.

The Court of Appeal judgment held that ‘[t]he use of the AN0M application and platform did not involve an interception of the AN0M communications in contravention of s 7(1) of the TIA Act.’[3] The impact of this, as explained by the SAODPP, is that ‘the evidence of alleged offences provided by the messages sent between the [AN0M] users will be admissible in evidence during the course of a trial.’

Special leave granted by the High Court

On 7 November 2024, the High Court granted special leave to the defendants in the Court of Appeal judgment. It will be some time before the High Court considers this matter and renders its judgment.

Key issues and provisions

As explained in the Explanatory Memorandum (p. 3):

The Bill would be consistent with the position of the Supreme Court of South Australia and the Court of Appeal of the Supreme Court of South Australia, that, information or a record obtained under the relevant warrants was not information or a record that was intercepted, and would clarify that such information was validly and lawfully obtained under the relevant warrants.

The Bill introduces two key provisions to clarify the validity of warrants and the obtainment of information. The Australian Law Reform Commission (at 9.100) has provided an overview of these types of clarification, referred to as ‘declaratory statutes’:

In a range of contexts legislation with retrospective operation may be enacted to validate decisions that have been made, or powers exercised, by government agencies, the validity of which is in doubt for ‘technical’ reasons. Such legislation may be seen as retrospectively changing legal rights and obligations. These statutes are sometimes known as ‘declaratory statutes’ and the presumption against retrospectivity does not apply.  

Lawful obtainment clarification

Subclause 6(1) provides that information or a record obtained in reliance, or purported reliance, on a relevant warrant is taken for all purposes to have been, and to always have been, obtained under either the Surveillance Devices Act or the Crimes Act. Clause 4 includes a definition of relevant warrant, and lists:

• seven specific surveillance device or computer access warrants issued, or purportedly issued, under the Surveillance Devices Act to the AFP, and
• four specific search warrants issued, or purportedly issued, under the Crimes Act to the AFP.

Subclause 6(2) provides an avoidance of doubt provision, that

anything done, or anything purported to have been done, by a person that would have been wholly, or partly, invalid or unlawful except for subsection (1) is taken for all purposes to be valid and lawful and to have always been valid and lawful, despite any effect that may have on the accrued rights of any person.

As set out in the Explanatory Memorandum:

This provides, for the avoidance of doubt, that the clarification in subsection (1) ‘flows through’ to anything done on the basis of the information or record being obtained under a relevant warrant. An example of this would be that a subsequent dealing in the information or record would not be invalid or unlawful on the basis that it was information obtained in contravention of a prohibition on the use of a surveillance device without a warrant contained in a State or Territory surveillance device law (p. 11, emphasis added).

Subclause 6(3) provides an additional avoidance of doubt provision, that:

Without limiting subsection (1) or (2), evidence that, except for subsection (1), would have been wholly, or partly, obtained:

(a) in contravention of an Australian law or in consequence of a contravention of an Australian law; or

(b) improperly or in consequence of an impropriety;

is taken for all purposes not to have been, and always not to have been, obtained:

(c) in contravention of an Australian law or in consequence of a contravention of an Australian law; or

(d) improperly or in consequence of an impropriety.

As set out in the Explanatory Memorandum:

The purpose of [subclause 6(3)] is to make clear that the clarification in subsection (1) that information or a record obtained under a surveillance device warrant or computer access warrant, as the case may be, ‘flows through’ to also clarify that the obtaining of evidence, including derivative evidence, was not improper or in contravention of an Australian law that would form the basis for a court to exercise its statutory or common law discretion to exclude such information or record from admission in evidence (p. 11, emphasis added).

Interception clarification

Subclause 5(1) confirms that information or a record obtained under a relevant warrant is taken for all purposes and always not to have been intercepted or information obtained by intercepting a communication passing over a telecommunications system. Such an interception would need to be authorised by a warrant issued under the TIA Act to ensure admissibility.

This confirmation of intention would mean that material obtained by the AFP as part of Operation Ironside:

is not intercepted information to which Part 2-6 (Dealing with intercepted information etc.) of the Telecommunications (Interception and Access) Act 1979 would apply, including the restrictions on giving and admitting such information in evidence contained in ss 63 and 77 of that Act (Explanatory Memorandum, p. 10).

Subclause 5(2) provides an avoidance of doubt provision, stating that

[t]o avoid doubt, anything done, or anything purported to have been done, by a person that would have been wholly, or partly, invalid or unlawful except for subsection (1) is taken for all purposes to be valid and lawful and to have always been valid and lawful, despite any effect that may have on the accrued rights of any person.

As set out in the Explanatory Memorandum, this means that ‘a subsequent dealing in the information or record would not be invalid or unlawful on the basis that it was intercepted information covered by Part 2-6 of the TIA Act’ (p. 10).

Subclause 5(3) provides an additional avoidance of doubt provision, stating that:

Without limiting subsection (1) or (2), evidence that, except for subsection (1), would have been wholly, or partly, obtained:

(a) in contravention of an Australian law or in consequences of a contravention of an Australian law; or

(b) improperly or in consequence of an impropriety;

is taken for all purposes not to have been, and always not to have been, obtained:

(c) in contravention of an Australian law or in consequence of a contravention of an Australian law; or

(d) improperly or in consequence of an impropriety.’

That is, similar to subclause 6(3) discussed above, this extends the clarification in subclause 5(1) to derivative evidence obtained as a result of the information or record obtained under a relevant warrant (Explanatory Memorandum, p. 10).

The Bill would apply to civil or criminal proceedings instituted on, after or before its commencement (clause 7).