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Luppino v Fisher (No 2) [2019] FCA 1100 (15 July 2019)

Last Updated: 16 July 2019

FEDERAL COURT OF AUSTRALIA

Luppino v Fisher (No 2) [2019] FCA 1100

File number:


Judge:


Date of judgment:
15 July 2019


Catchwords:
CRIMINAL LAW – application for judicial review of an ex parte order made by a magistrate under s 3LA of the Crimes Act 1914 (Cth) requiring the Plaintiff to provide a constable with any information or assistance which is reasonable and necessary to allow the constable to access, copy or convert data on a computer or data storage device – whether there was a denial of procedural fairness in the grant of the order – whether the order identifies the information or assistance required to be provided – whether the order specifies the period in which, and the place at which, the information or assistance is to be provided – whether the order failed to identify the particular computer or data storage device the subject of the order – whether a mobile phone is a “computer” or “data storage device” – whether the magistrate granting the order could have been satisfied by either ss 3LA(2)(c)(i) or 3LA(2)(c)(ii) – whether the order was made by the magistrate in his personal capacity or by the Magistrates Court of South Australia – application allowed and declaration of invalidity made.


Legislation:
Crimes Legislation Amendment Act 2011 (No 2) (Cth)
Criminal Code 1995 (Cth) s 400.4(1)


Cases cited:
Australian Crime Commission v Stoddart [2011] HCA 47; (2011) 244 CLR 554
Australian Federation of Construction Contractors v Australian Building Construction Employees’ and Builders Labourers’ Federation [1984] FCA 218; (1984) 73 FLR 61
Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union (No 2) [1987] FCA 117; (1987) 15 FCR 64
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514
Grollo v Palmer, Commissioner of Australian Federal Police [1995] HCA 26; (1995) 184 CLR 348
Harts v Commissioner, Australian Federal Police (1997) 75 FCR 145
Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384
Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1
LDF Enterprise Pty Ltd v New South Wales [2017] NSWSC 350
LDF Enterprise Pty Ltd v State of New South Wales [2017] NSWCA 89; (2017) 95 NSWLR 70
Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196
Luppino v Fisher [2018] FCA 2106
National Companies and Securities Commission v The News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95
Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
R v Kirby; ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254
Redland Bricks Ltd v Morris [1970] AC 652
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281
Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22
X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92


Date of hearing:
5 March 2019


Registry:
South Australia


Division:
General Division


National Practice Area:
Federal Crime and Related Proceedings


Category:
Catchwords


Number of paragraphs:
215


Counsel for the Plaintiff:
Mr M Abbott QC with Mr S McDonald


Solicitor for the Plaintiff:
Patsouris & Associates


Counsel for the First Defendant:
The First Defendant did not appear


Counsel for the Second Defendant:
Mr P Hanks QC with Ms A Wells


Solicitor for the Second Defendant:
Australian Government Solicitor


ORDERS
SAD 288 of 2018

BETWEEN:
DANIEL LUPPINO
Plaintiff
AND:
GREGORY CHARLES FISHER
First Defendant

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Second Defendant

JUDGE:
WHITE J
DATE OF ORDER:
15 JULY 2019



THE COURT DECLARES THAT:

  1. The order of the First Defendant made on 30 August 2018 under s 3LA of the Crimes Act 1914 (Cth) with respect to the Plaintiff is invalid.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

WHITE J:

[1]
[8]
[36]
[39]
[44]
[53]
[58]
[64]
[75]
[80]
[105]
[106]
[117]
[120]
[127]
[132]
[136]
[155]
[168]
[190]
[200]
[213]

Introduction

  1. This is a judgment on an application for judicial review of an ex parte order made under s 3LA of the Crimes Act 1914 (Cth).
  2. The first defendant is a Magistrate in the Magistrates Court of South Australia. On 30 August 2018, he granted an order under s 3LA of the Crimes Act requiring the plaintiff to provide to a constable any information or assistance which was reasonable and necessary to allow a constable to access data on a Samsung mobile phone and to copy and/or convert that data into an intelligible form (the s 3LA order). The Samsung phone had been seized on 27 August 2018 by members of the Australian Federal Police (AFP) from a vehicle being driven by the plaintiff while executing a search warrant issued by a different Magistrate on 24 August 2018.
  3. The s 3LA order was served on the plaintiff on 30 August 2018 by Mr Booth, an AFP agent. Immediately after it was served, Mr Booth requested the plaintiff to provide the password, or passwords, to the Samsung phone, but he did not do so. He has not provided the password since.
  4. On 5 September 2018, the plaintiff commenced proceedings in the Supreme Court of South Australia seeking judicial review pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) of the Magistrate’s decision. On 21 September 2018, the Supreme Court transferred the proceedings to this Court pursuant to s 6(1) of the Jurisdiction of Courts (CrossVesting) Act 1987 (Cth). The parties have continued to have the same designations in this Court as they had in the Supreme Court.
  5. The first defendant did not appear in the proceedings. The Court was informed that he would submit to any order which it considers appropriate.
  6. The second defendant is the Commissioner of the AFP (the Commissioner).
  7. On 19 December 2018, I refused an interlocutory application by the Commissioner for an order requiring the plaintiff to make a form of interim disclosure of the password, with the disclosed information remaining confidential until the proceedings are concluded: Luppino v Fisher [2018] FCA 2106.

Section 3LA and its context

  1. Section 3LA of the Crimes Act, as in force on 30 August 2018, was in the following terms:
3LA Person with knowledge of a computer or a computer system to assist access etc.
(1) A constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following:
(a) access data held in, or accessible from, a computer or data storage device that:
(i) is on warrant premises; or
(ii) has been moved under subsection 3K(2) and is at a place for examination or processing; or
(iii) has been seized under this Division;
(b) copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device;
(c) convert into documentary form or another form intelligible to a constable:
(i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or
(ii) data held in a data storage device to which the data was copied as described in paragraph (b); or
(iii) data held in a data storage device removed from warrant premises under subsection 3L(1A).
(2) The magistrate may grant the order if the magistrate is satisfied that:
(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and
(b) the specified person is:
(i) reasonably suspected of having committed the offence stated in the relevant warrant; or
(ii) the owner or lessee of the computer or device; or
(iii) an employee of the owner or lessee of the computer or device; or
(iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or
(v) a person who uses or has used the computer or device; or
(vi) a person who is or was a system administrator for the system including the computer or device; and
(c) the specified person has relevant knowledge of:
(i) the computer or device or a computer network of which the computer or device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or device.
(3) If:
(a) the computer or data storage device that is the subject of the order is seized under this Division; and
(b) the order was granted on the basis of an application made before the seizure;
the order does not have effect on or after the seizure.
Note: An application for another order under this section relating to the computer or data storage device may be made after the seizure.
(4) If the computer or data storage device is not on warrant premises, the order must:
(a) specify the period within which the person must provide the information or assistance; and
(b) specify the place at which the person must provide the information or assistance; and
(c) specify the conditions (if any) determined by the magistrate as the conditions to which the requirement on the person to provide the information or assistance is subject.
(5) A person commits an offence if the person fails to comply with the order.
Penalty for contravention of this subsection: Imprisonment for 2 years.
  1. It was common ground that this was the form of s 3LA to be considered in the present case. The amendments effected by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) were not in force at the relevant time.
  2. As is apparent, s 3LA(5) makes it a criminal offence for a person to fail to comply with an order made under subs (2). At the times relevant for these proceedings, the maximum penalty for the offence was imprisonment for two years.
  3. Section 3LA is in Div 2 of Pt 1AA of the Crimes Act. The heading to Pt 1AA indicates its general subject matter, namely, search, information gathering and arrest. The scheme of Pt 1AA as then in force, and some of its history, is set out in Harts v Commissioner, Australian Federal Police (1997) 75 FCR 145 at 147150 and in Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 at [16][24] (Hart v AFP 2002).
  4. Section 3E in Div 2 provides for search warrants of two kinds: a warrant to search premises (a premises warrant) and a warrant to undertake an “ordinary search” (as defined in s 3C(1)) or a “frisk search” (as defined in s 3C(1)) of a person. The issuing officer (which expression is defined to include a magistrate) is to include in a warrant the information required by the succeeding provisions in s 3E in relation to the kind of warrant being issued.
  5. Section 3F identifies the activities authorised by each kind of warrant. In relation to a premises warrant, these are powers of entry, search and seizure. In relation to person warrants, these are powers of search of the person and of any conveyance recently used by the person, as well as seizure. Section 3G allows the officer executing a warrant to have assistance from certain defined persons. Section 3K permits the executing officer to bring onto warrant premises any equipment which is reasonably necessary for examining or processing a thing found on the premises, and for circumstances in which the executing officer or the constable assisting that officer may, without seizing a thing found in the search, move it to another place for examination or processing. Section 3L permits the executing officer to operate electronic equipment to access and copy data found when executing a premises warrant. Section 3LAA authorises the use of electronic equipment to access and copy data from items moved to another place for examination or processing.
  6. Section 3LA, with which the present action is concerned, forms part of this scheme. It permits a “constable” to apply to a magistrate for an order requiring a specified person to provide “any information or assistance” which is “reasonable and necessary” to allow a “constable” to access data held in, or accessible from, a computer or data storage device on warrant premises, which has been moved under s 3K(2) to another place for examination or processing, or which has been seized under Div 2; to copy data held in, or accessible from, such a computer or data storage device; or to convert into documentary form or some other intelligible form the data held in, or accessible from, such a device.
  7. Although a search warrant under s 3E may be issued by an “issuing officer” (defined in s 3C to mean a magistrate or justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search or arrest warrants), an order under s 3LA may be granted only by a magistrate.
  8. The term “constable” is defined in s 3(1) of the Crimes Act to mean:
[A] member or special member of the [AFP] or a member of the police force or police service of a State or Territory.
  1. One of the matters about which the magistrate must be satisfied before issuing a s 3LA order is that there are reasonable grounds for suspecting that “evidential material” is held in, or is accessible from, the computer or data storage device. The term “evidential material” is defined in s 3C(1) of the Crimes Act:
evidential material means a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form.
  1. The evident purpose of s 3LA is to facilitate the execution of s 3E search warrants by providing those executing them with a means of obtaining the assistance which is reasonable and necessary in order that a constable may access, copy and/or convert into an intelligible form data held in, or accessible from, a computer or data storage device. It provides police with a means of overcoming impediments to the ascertainment of evidentiary material in electronic data created by the use of devices such as password protection and encryption.
  2. A number of features of s 3LA may be noted at this stage. The application for the order may be made by a constable who is not the person executing the s 3E warrant. The order must be directed to a “specified person” and not to a class of persons or to persons generally. The specified person need not be suspected of any offence, let alone the offence which led to the issue of the s 3E warrant. It will be sufficient if, for example, the person is the owner of the computer, an employee of, or a contractor to, the owner, or simply the system administrator of a system which includes the computer or device.
  3. The s 3LA order is to be directed to the provision of any information or assistance which is reasonable and necessary to allow a constable (who may not be the applicant for the order) to carry out at least one of the specified actions. These activities concern the accessing, copying or conversion of data held in, or accessible from, a computer or data storage device. Section 3LA is not concerned with the provision of information or assistance with respect to other aspects of the execution of a search warrant, or which may arise from its execution.
  4. The reach of the verb “access” is unclear. In particular, it is unclear whether it is confined to information or assistance necessary to “unlock” the computer or data storage device or whether it may extend to assistance in navigation through the computer or the system of which it forms part.
  5. Provided that there are reasonable grounds for suspecting that “evidential material” is held in, or accessible from, the computer or data storage device, then there is (subject to any condition imposed under s 3LA(4)(c)) no limit on the nature of the data which the constable may access, copy or convert into another form. It may extend to personal, confidential or sensitive material unrelated to the commission of any crime, and perhaps to the entire database in a computer system.
  6. A s 3LA order may be made before or after the execution of the s 3E warrant and before or after the seizure of a computer or data storage device pursuant to the warrant. However, if it is made before the seizure, the order ceases to have effect on that seizure (subs (3)).
  7. Section 3LA(2) specifies three matters about which a magistrate must be satisfied before issuing the order. Two of the three matters contain internal alternatives. The three matters may be described as an “evidential material” requirement, a “status” requirement and a “knowledge” requirement. In relation to the first, the magistrate does not have to be satisfied that evidential material is held in, or is accessible from, the computer or data storage device: the threshold of which he or she must be satisfied is lower, namely, that there are “reasonable grounds for suspecting” that evidential material is held in, or is accessible from, the computer or data storage device in question (subs (2)(a)).
  8. With reference to the “status” requirement, the magistrate must be satisfied that the specified person has one or other of the statuses specified in subs (2)(b) or is reasonably suspected of having committed the offence stated in “the relevant warrant” (subpara (b)(i)). It is evident that the “relevant warrant” is the warrant pursuant to which the computer or data storage device was found, moved or seized. The subpara (b)(i) matter is the only matter in respect of which satisfaction of the existence of a reasonable suspicion is sufficient. If the magistrate relies on any of the other subpara (b) matters, he or she must be satisfied of that matter as a fact.
  9. In relation to the “knowledge” requirement, subs (2)(c) requires that the magistrate be satisfied that the specified person has “relevant knowledge” of the computer or device or a computer network of which the computer or device forms part, or of measures applied to protect data held in, or accessible from, the computer or device. Satisfaction that the specified person is reasonably suspected of having “relevant knowledge” is insufficient. The term “relevant knowledge” is not defined. In context, it seems to mean knowledge concerning the computer, the device or the computer network of which the computer or device form part, or to measures applied to protect data on the computer or device which would enable the person to provide the information or assistance in question.
  10. Section 3LA does not limit the content of the information or the forms of assistance which may be ordered to be provided, other than stipulating that their provision must be reasonable and necessary in order to allow a constable to engage in one or more of the activities specified in subs (1). The more obvious forms of information and assistance appear to be the provision of a username, password, digital fingerprint or private encryption key, but it could extend to the provision of equipment necessary to access the computer or device.
  11. Section 3LA does not contemplate that the provision of the required information or assistance will necessarily be contemporaneous with the request for that information or assistance. That is evidenced by the requirement that the order specify the period within which, and the place at which, the information or assistance is to be provided (s 3LA(4)).
  12. Section 3LA is a statutory abrogation of the privilege against selfincrimination. I referred to this privilege in my decision on the Commissioner’s interlocutory application , and repeat what I said then.
  13. The fundamental nature of the privilege against selfincrimination is wellestablished. In Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281 at 294, Gibbs CJ spoke of the privilege as follows:
If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence. The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission. It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt.
  1. In Reid v Howard [1995] HCA 40; (1995) 184 CLR 1, the privilege was considered in some detail by the High Court. In his separate judgment, Deane J said at 5:
... “The privilege against selfincrimination is deeply ingrained in the common law”. It reflects “a cardinal principle” which lies at the heart of the administration of the criminal law in this country. It can be, and has increasingly been, overridden or modified by the legislature. It can be waived by the person entitled to claim it. Otherwise, it is unqualified. In particular, it should not be modified by judicially devised exceptions or qualifications. Unless it appears that the assertion of potential incrimination is unsustainable, a claim to the benefit of the privilege cannot, in the absence of statutory warrant, properly be disregarded or overridden by the courts.
... The relevant question relating to those matters is whether, putting to one side the question of privilege, the Supreme Court possessed jurisdiction and power to make the order for disclosure which it made. If it did, the effect of a failure to advert or give due effect to the privilege is not something which goes to jurisdiction or power. It is something which gives rise to an erroneous exercise of jurisdiction and power.
(Emphasis added and citations omitted)
  1. The plurality (Toohey, Gaudron, McHugh and Gummow JJ) in Reid v Howard said at 1114:
The privilege, which has been described as a “fundamental ... bulwark of liberty”, is not simply a rule of evidence, but a basic and substantive common law right. It developed after the abolition of the Star Chamber by the Long Parliament in 1641, and, by 1737, it was said that “there [was] no rule more established in equity”. More recently, the privilege has been described as “deeply ingrained in the common law”. It operates so that a person cannot be compelled “to answer any question, or to produce any document or thing, if to do so ‘may tend to bring him into peril and possibility of being convicted as a criminal’”.
...
The privilege against self-incrimination may be abridged by statute or waived but, that aside, it has generally been accepted that it is without “real exception”. ...
...
There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application – a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v Trade Practices Commission, protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against “the peril and possibility of being convicted as a criminal”. For the same reason, there can be no exception in civil proceedings, whether generally or of one kind or another. Moreover, it would be anomalous to allow that a person could refuse to answer questions in criminal proceedings or before investigative bodies where the privilege has not been abrogated if that person could be compelled to answer interrogatories or otherwise make disclosure with respect to the same matter in civil proceedings.

(Citations omitted)
  1. The abrogation may be indirect because the subjects of the order are required only to give access to a computer or data storage device containing the evidential material and not to disclose it themselves. It is nevertheless an abrogation. It would be artificial for a distinction to be drawn in the effect on the privilege between the compulsory disclosure of information, on the one hand, and the compulsory disclosure of the means by which information which is otherwise unascertainable or indecipherable may be read, on the other.
  2. The features of s 3LA which I have summarised indicate that, while the section may be an important adjunct to police investigatory powers, the decision to grant the order is one which should be made with some care.
  3. An order pursuant to s 3LA has some similarity with a mandatory injunction. Some of the principles developed by the courts in relation to the framing of mandatory injunctions may be taken to be apposite to the making of an order under the section. In particular, the principle that injunctions will be expressed so as to ensure, so far as practicable, that their content is certain and that they provide clearly for what parties affected by them are bound to do or refrain from doing (Australian Federation of Construction Contractors v Australian Building Construction Employees’ and Builders Labourers’ Federation [1984] FCA 218, (1984) 73 FLR 61 at 62; Redland Bricks Ltd v Morris [1970] AC 652 at 666) seems apposite. Courts recognise, however, the difference between an order which is uncertain, and an order which, being certain in its meaning, leaves to the addressee a choice as to the manner of compliance: Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union (No 2) [1987] FCA 117; (1987) 15 FCR 64 at 72.

Approach to the construction of s 3LA

  1. Both parties referred to the decision in Hart v AFP 2002 in which the Full Court discussed a number of matters of approach to the construction of statutes authorising the search and seizure. The matters to which the Full Court referred are:
  2. Although the plaintiff accepted that the approach stated in Hart v AFP 2002 was appropriate, he did raise two qualifications. The first is that the statutory provisions in question in this case concerned the powers of a magistrate, and not those of a police officer. This meant, the plaintiff submitted, that matters of “operational realities” need not have the same significance. Secondly, the plaintiff noted that, since 2002, a number of decisions of the High Court have indicated the importance of the principle of legality, to an extent which may not have been fully understood in 2002: Australian Crime Commission v Stoddart [2011] HCA 47, (2011) 244 CLR 554; X7 v Australian Crime Commission [2013] HCA 29, (2013) 248 CLR 92; and Lee v New South Wales Crime Commission [2013] HCA 39, (2013) 251 CLR 196; Independent Commission Against Corruption v Cunneen [2015] HCA 14, (2015) 256 CLR 1.
  3. Counsel for the Commissioner emphasised that the principle of legality is a rule of construction, and not of rewriting: Lee v NSW Crime Commission at [313].

The s 3LA order made on 30 August 2018

  1. The s 3LA order made by the first defendant on 30 August 2018 is in the following terms:
Crimes Act 1914
Section 3LA
Order to provide information or assistance
To: Daniel LUPPINO, born [redacted]
Whereas an application has been made by Federal Agent Nigel BOOTH, a constable as defined in the Crimes Act 1914, in relation to a search warrant issued under section 3E of the Crimes Act 1914 in respect of Daniel LUPINO (sic), born [redacted] for an order under section 3LA of the Crimes Act 1914;
And whereas I am satisfied that:
AND 2019_110000.jpgyou are the owner or lessee of the computer or device, or
2019_110000.jpgyou are an employee of the owner or lessee of the computer or device, or
2019_110001.jpgyou are a person who uses or has used the computer or device, or
2019_110000.jpgyou are a person engaged under a contract for services by the owner or lessee of the computer or device, or
2019_110000.jpgyou are a person who is or was a system administrator for the system including the computer or device, or
2019_110000.jpgyou are reasonably suspected of having committed the offence stated in the relevant warrant
AND
you have relevant knowledge of;
2019_110001.jpgthe computer or device or a computer network of which the computer or device forms or formed a part; and
2019_110001.jpgmeasures applied to protect data held in, or accessible from, the computer or device
I, G C Fisher, a magistrate within the meaning of the Crimes Act 1914, hereby order you to provide to a constable any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following:
  1. The s 3LA order also has the seal of the Magistrates Court of South Australia stamped on it immediately adjacent to the first defendant’s signature. The plaintiff sought to attach a significance to the presence of that seal, to which I will return.
  2. Apart from indicating that the application was made under ss 5 and 6 of the ADJR Act, neither the Summons by which the plaintiff commenced the proceedings or his Statement of Claim indicates the particular provisions in the ADJR Act on which he relied. I have taken the plaintiff to be invoking the following subparagraphs in s 5(1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
...
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
...
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
...
  1. The Statement of Claim indicates that the plaintiff seeks judicial review on eight separate grounds. At the hearing, the plaintiff abandoned the eighth ground and pressed only part of Ground 4.
  2. The Statement of Claim indicates that the plaintiff also seeks judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth). In the submissions in support of the application, counsel contended that the first defendant’s order is, in a number of respects, affected by jurisdictional error.

Factual setting

  1. I referred earlier to the warrant issued by a different Magistrate on 24 August 2018. That Magistrate (Mr McLeod SM) issued a warrant to Federal Agent Clow entitled “Search Warrant for Search of a Person” pursuant to s 3E of the Crimes Act. In that warrant, Mr McLeod SM indicated his satisfaction that there were reasonable grounds for suspecting that the plaintiff had in his possession evidential material as defined in the Crimes Act satisfying three conditions, the third of which was that identified items would afford evidence as to the commission of the offence of dealing in proceeds of crime, contrary to s 400.4(1) of the Criminal Code 1995 (Cth). The operative part of the warrant provided (relevantly):
I hereby issue this warrant which authorises you to conduct a frisk and ordinary search of the person described above.
AND by virtue of section 3F(2) of the Crimes Act 1914 this warrant authorises the executing officer or a constable assisting to do all of the following:
  1. As is evident, the warrant was a person warrant.
  2. Mr Clow deposed that he was one of a number of AFP officers who stopped the plaintiff while he was driving a vehicle on the morning of 27 August 2018 and executed the search warrant. AFP officers seized three items during the execution of the search warrant:
(a) a Samsung mobile phone in an Otterbox mobile phone case found on the plaintiff’s person (the Samsung mobile);
(b) a gold coloured Samsung mobile phone found in the centre console of the plaintiff’s vehicle (the Gold Samsung mobile); and
(c) a HewlettPackard laptop (the Laptop) found in the footwell of the passenger’s side rear seat.
  1. Mr Clow deposed that the plaintiff supplied him with the password to the Laptop and told him that the Samsung mobile did not require a password. When he asked the plaintiff whether the Gold Samsung mobile had a “PIN or a password”, the plaintiff answered “no comment” and did not otherwise provide him with a password to that item.
  2. On 30 August 2018, another member of the AFP, Mr Booth, made an application pursuant to s 3LA. It was that application which was dealt with by the first defendant and resulted in the issue of the s 3LA order. Mr Booth’s application was in the following terms:
In the Magistrates Court
At Adelaide, South Australia No: 1
Crimes Act 1914
Section 3LA
Application for an order to provide information or assistance
I, Nigel Ray BOOTH being a constable as defined in the Crimes Act 1914 state that a search warrant has been executed under section 3E of the Crimes Act 1914 in respect of the person specified below. I hereby apply for an order requiring the person specified below to provide to a constable any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following:
Warrant premises/Person to whom the warrant relates:
Daniel LUPPINO, born [redacted]
Person in respect of whom the order is sought: Daniel LUPPINO, born [redacted]
Time period within which the assistance is sought: within 24 hours of any order.
Location at which the assistance is sought to be provided: Adelaide, South Australia
Date of this application: 30/08/2018
Name and title of applicant: Federal Agent Nigel BOOTH, Australian Federal Police
  1. Mr Booth supported the application with an affidavit, to which it will be necessary to return.
  2. I am also satisfied that Mr Booth provided the first defendant with the form of order pursuant to s 3LA which he sought. That order was complete in all respects save for the name of the first defendant and his signature and date.
  3. Mr Booth’s affidavit indicates that he did not attend personally before the first defendant in relation to the obtaining of the s 3LA order. He deposed that on 30 August 2018, he had handed the application for the s 3LA order and the supporting affidavit in unredacted form (which included a copy of the warrant issued by Mr McLeod SM) in a sealed envelope to the Registry of the Adelaide Magistrates Court “as per standard procedure”. Later that same day, he “collected” the signed s 3LA order from the Registry. The first defendant did not make any alterations to the substantive form of the order provided to him by Mr Booth.
  4. Mr Booth served the s 3LA order on the plaintiff on 30 August 2018 at 1.50 pm. A transcript of the conversation which ensued between Mr Booth and the plaintiff was in evidence, and the accuracy of that transcript was not in issue. Relevantly, it indicates that the following interchange occurred:
Q4: ... Now, Daniel, are you able to provide me with the password to that Samsung?
A: Don’t know. Don’t know it.
Q5: You don’t know it?
A: Nah.
Q6: It was your phone.
A: Nah.
Q7: Is that correct?
A: No.
...
Q10: ... and what we might do is if you – you don’t know the password at all?
A: (No audible reply).
Q11: Have you used that phone before?
A: No.

An initial submission

  1. Senior counsel for the plaintiff submitted that the Court should infer that the first defendant had not read the s 3LA order before signing and dating it. This was a surprising submission given that it imputed a dereliction of duty to the first defendant and was not linked to any of the grounds on which the plaintiff sought judicial review.
  2. Senior counsel relied on only two matters for the submission. First, that the s 3LA order refers on multiple occasions to the item in respect of which the order was made as “a computer or data storage device” and to “the computer or device”. He submitted that, had the Magistrate understood that the order related only to the Gold Samsung mobile, he would not have thought it appropriate to use that expression. Secondly, counsel noted the reference in the fifth bullet point of the order to a data storage device removed from “warrant premises”. That expression was inapposite, he submitted, because the warrant issued on 27 August 2018 had been a “person” warrant, and not a “premises” warrant. Had the first defendant read the order, he would have recognised that that was so.
  3. In my view, neither of these matters can be taken reasonably to support the serious conclusion for which counsel contended. There was no reason for the first defendant to attach significance to the reference to “warrant premises” in the last of the bullet points to which counsel referred. For his purposes, nothing turned on the question of whether the Gold Samsung mobile had been seized pursuant to a premises warrant or a person warrant. An alternative, and much more likely explanation than that for which senior counsel contended, is that it was a simple oversight.
  4. The expression “a computer or data storage device” is the expression used in s 3LA itself. It is understandable that the first defendant may have thought it appropriate for the s 3LA order to use the statutory terminology.
  5. For these reasons, I reject the submission that it is apparent that the first defendant had not read the s 3LA order before issuing it.

Ground 1 – denial of procedural fairness

  1. Ground 1 in the Statement of Claim raises an issue of procedural fairness.
  2. The plaintiff contends that the power to make an order under s 3LA is conditioned, at least when made in respect of a computer or data storage device which has already been seized under Div 2 of Pt 1AA of the Crimes Act, upon the magistrate according the proposed subject of the order a hearing in accordance with the natural justice rule of procedural fairness. That condition was not satisfied in his case because he had not been given any opportunity to be heard before the first defendant made the s 3LA order.
  3. The plaintiff claims, in the alternative, that when an application for an order under s 3LA, is made ex parte, the magistrate has a discretion as to whether to proceed ex parte and is required to consider and determine, reasonably and having regard to proper considerations, whether to do so. He submits that in the present case, it can be inferred that the first defendant proceeded to make the order ex parte simply because the application had been made to him in that way and without properly considering and determining whether it was appropriate to do so. Alternatively again, the plaintiff alleges that it was unreasonable for the first defendant to have considered and granted the order ex parte.
  4. Counsel submitted that three considerations indicate that the making of a s 3LA order is conditioned on compliance with the natural justice hearing rule:
(a) the exercise of the power is apt to affect the rights or interests of the person to whom the order is directed: Kioa v West [1985] HCA 81, (1985) 159 CLR 550 at 615; Annetts v McCann [1990] HCA 57, (1990) 170 CLR 596 at 598; Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41, (2010) 243 CLR 319 at [74];
(b) there is no express provision in the Crimes Act excluding the application of the rules of natural justice or procedural fairness in relation to applications under s 3LA; and
(c) it does not appear by a necessary intendment that the rules of natural justice, and in particular, the hearing rule, do not apply: Annetts v McCann at 598.
  1. It was common ground that the Crimes Act does not contain any express provision excluding or limiting the rules of procedural fairness in relation to an application under s 3LA.
  2. Despite a statute not containing an express provision, it may nevertheless be implicit that it does not require compliance with the rules of natural justice or that it intends that those rules have no content, in order that the purpose for which the power was conferred will not be frustrated: Kioa v West at 615; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [367]. The existence of a “necessary intendment” to exclude the principles of natural justice is not to be assumed or spelled out from “indirect references, uncertain inferences or equivocal considerations”: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [14]. The plurality in Saeed went on to explain that the requirement for exclusion by “plain words of necessary intendment” is an aspect of the principle of legality:
[15] The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers' Union, "governs the relations between Parliament, the executive and the courts." His Honour said:
“The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.”

(Citations omitted)

The submissions of the plaintiff

  1. Counsel submitted that a number of matters are inconsistent with the exclusion of the rules of natural justice being a matter of necessary intendment in relation to applications under s 3LA:
(a) section 3LA permits the magistrate to make orders for the provision of information and assistance of diverse kinds and by diverse means and which may have very intrusive effects. Further, s 3LA contemplates orders which will require positive action by the specified person and not just that the person refrain from specified activities. Compliance with the orders may have the effect of impinging substantially on fundamental common law rights of the person, in particular, the right to silence and the privilege against selfincrimination;
(b) in at least two of the circumstances in which a s 3LA order may be made, the computer or data storage device in question will be in the custody of, or at least under the control of, the officer executing the warrant (when the computer or device has been moved to another place for examination or processing and when it has been seized under Div 2). In the third circumstance (when the computer or data storage device remains on the warrant premises), it may or may not be under the control (or partial control) of the executing officer. This means that in most circumstances, the risk that the computer or data storage device may be destroyed, hidden or disabled if the subject of the application is put on notice does not arise. Accordingly, the circumstance which usually indicates that a search warrant may be issued without notice to its subject is not present in the case of most s 3LA orders;
(c) the matters about which the magistrate must be satisfied for the status requirement (with one exception) and the knowledge requirement are matters of concluded fact, and not just the existence of reasonable grounds for suspicion that the facts exist. Even if it be the case that the proposed subject may be able to contribute little with respect to the existence of a reasonable suspicion, he or she may well be able to adduce evidence bearing upon the magistrate’s satisfaction of matters of fact;
(d) the consequence of the grant of an order is that its subject is compelled, on pain of criminal penalty, to provide information or assistance. It is not readily to be supposed that the subject may be so exposed on the basis of the magistrate’s satisfaction of the existence of facts about which he or she has not had the opportunity to be heard; and
(e) the fact that the power is conferred on a magistrate tends to reinforce the assumption that the rules of natural justice will be observed, because it is an ordinary incident of the functions of magistrates that they do comply with the rules of natural justice when making decisions which impact upon the rights and interests of individuals.
  1. Counsel submitted that, in the present case, procedural fairness required as a minimum that the plaintiff be given notice of the application and with an opportunity to make submissions as to whether an order under s 3LA should be made and, if so, as to its form.
  2. In support of the submission that he may have been able to make submissions affecting the first defendant’s determination on the application, the plaintiff emphasised four matters. First, the first defendant had to be satisfied about the existence of factual matters and it is to be expected that a person may be able to adduce, or point to, evidence bearing on such matters and be able to make submissions concerning them. In this case, it ought not be assumed that submissions which he may have made bringing particular matters to the attention of the first defendant, or emphasising particular features of the statutory scheme, could not have made a difference.
  3. Secondly, the plaintiff submitted that he could have made submissions as to the generality/specificity with which the s 3LA order should be expressed, for example, as to whether he should be required to provide any information or assistance reasonable and necessary or any particular forms of assistance.
  4. Thirdly, the plaintiff submitted that he could have drawn the first defendant’s attention to the fact that his answers in response to the request for him to provide a PIN or password to the Gold Samsung mobile on which Mr Booth relied had been made after he had been given the caution about selfincrimination. A submission to that effect would have supported a submission that the first defendant should attach no weight to his responses to Mr Clow’s request, because to do otherwise undermined his right to silence: Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95.
  5. Fourthly, the plaintiff contended that he could have submitted that the first defendant was being asked to grant the warrant on a misapprehension, namely, that the s 3E warrant pursuant to which the Gold Samsung mobile had been seized was a premises warrant and not a person warrant, as indicated by the fifth bullet point in the form of the proposed s 3LA order provided to the first defendant by Mr Booth.
  6. Some of these matters carry more weight than others. For example, it is likely that, had the misapprehension just identified been pointed out to the first defendant, it would have been quickly corrected without making a material difference to his decision.
  7. Counsel for the Commissioner submitted that the plaintiff had not identified, on the evidence, any unfairness resulting from him not having had a hearing. In my view, that submission ought not to be accepted. I consider that the submissions made on behalf of the plaintiff as to the matters to which he could have referred had he been given the opportunity to do so should be accepted. It is plain that the plaintiff, if so advised, could have advanced matters before the first defendant which may have influenced his decision, whether as to the very issue of the s 3LA order or as to its form.
  8. Counsel for the plaintiff accepted that a s 3LA order may be made even before the execution of a s 3E warrant as well as before the seizure of an item during the course of its execution and that the provision of notice in such circumstances may result in the subject being “tipped off” as to the imminent execution of the s 3E warrant or to the possible seizure of a computer or data storage device. He contended, however, that this should not be regarded as an indication of a “necessary intendment” that the rules of natural justice be excluded in all applications for s 3LA orders. It may mean only that in those circumstances, the content of the rules are reduced to nil.
  9. In support of these submissions, counsel emphasised the effect of s 3LA(3). As noted earlier, it provides that a s 3LA order ceases to have effect when the computer or data storage device in question has been seized under Div 2, if the order was granted on the basis of an application made before the seizure. Counsel submitted that it should be inferred that the intention of s 3LA(3) is that, if constables continue to seek information or assistance after the seizure of the computer or data storage device in question, they should seek a new order but in circumstances in which the subject of the order will then have the opportunity to be heard.
  10. Counsel submitted, in the alternative, that the Magistrate had, at the least, a discretion as to whether to proceed ex parte. This meant that he had been required to consider and decide, reasonably and having regard to proper considerations, whether to proceed ex parte. Counsel submitted that, in the circumstances of this case, there was no reasonable basis upon which the first defendant could properly have determined that it was appropriate to consider the application ex parte. The fact that the Gold Samsung mobile had already been seized is an important consideration in this respect.

The submissions of the Commissioner

  1. Counsel for the Commissioner submitted that an order under s 3LA would be undermined if a magistrate is required to hear from the person to whom the order would be directed before granting it. He submitted that the “operational realities” of the execution of search warrants should be taken into account and that the grant of a s 3LA order is so comparable with the issue of warrant under s 3E that the same necessary intendment that the rules of natural justice are excluded or reduced to nothingness is present.
  2. In support of this submission, counsel referred to the decision at first instance in LDF Enterprise Pty Ltd v New South Wales [2017] NSWSC 350 and to the decision in the same case on appeal: LDF Enterprise Pty Ltd v State of New South Wales [2017] NSWCA 89; (2017) 95 NSWLR 70. The case concerned the exercise of a statutory right of entry authorised by legislation directed to environmental protection, and not the making of an application for a warrant or order permitting the entry. At first instance, Adamson J held:
[37] The power of entry granted by s 196 of the POEO Act, when read with s 156B of the National Parks and Wildlife Act and the objects of the latter Act in s 2A(1)(b), is plainly an important investigative power, having regard to the circumstance that objects, places and features of historical and cultural significance which may be located on private property. ...
[38] [T]he investigation of a possible contravention is, by its nature, inquisitorial and preliminary. These circumstances generally make it inappropriate to require the disclosure of adverse information: National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296.
...
[41] The exercise of investigative powers may attract the obligations of procedural fairness, even where there is no determination of rights: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576-577. However, generally speaking, less will be required by way of procedural fairness in order to act fairly, in the investigative stage, as opposed to the determinative stage ...

(Citation omitted)
  1. The conclusion of Adamson J that compliance with the rules of natural justice did not require LDF Enterprise to have been given the opportunity to be heard before the regulatory authority exercised the power of entry was upheld on appeal. One of the reasons of Leeming JA (with whom Basten JA and Macfarlan JA agreed) was:
[38] The purpose of investigating compliance and contravention in legislation to protect the environment would not be furthered by qualifying the generally worded power of authorised officers to enter premises, so that it may only be exercised after notice has been given. It is easy to see how many investigations could be frustrated if notice were given (consider pollutants being discharged on occasion into waterways rather than in a more expensive lawful fashion). This Court is required to prefer a construction which promotes the purpose of the Act: Interpretation Act 1987 (NSW), s 33.
  1. Counsel also referred to National Companies and Securities Commission v The News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 323 in which Mason, Wilson and Dawson JJ said:
It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry.
  1. Counsel submitted that these rationales are apposite to the exercise of the power under s 3LA.

Consideration

  1. In my opinion, the circumstance that s 3LA is intended to facilitate the execution of search warrants is significant. In the scheme established by Div 2 of Pt 1AA, s 3LA does not operate independently of the provisions concerning search warrants. It is an adjunct to those provisions by providing a means by which those executing search warrants may obtain assistance in order to achieve the purposes of the warrant. To my mind, that points to the principles developed by the courts concerning the application of the rules of natural justice to decisions concerning the issue of search warrants being also applicable to the exercise of the s 3LA order. That is more obviously so when the s 3LA order is made before a s 3E search warrant has been executed or before a computer or data storage device found during the execution of a search warrant is removed to another location or seized. It is readily understandable that a requirement that the subject of the order be heard in those circumstances would alert the subject to the imminent search or seizure and enable the purpose of the order to be frustrated.
  2. I accept the submission of counsel for the Commissioner that the fact that s 3LA operates as an aid to the efficacy of the execution of a search warrant suggests that the same considerations which apply in relation to the issue of search warrants apply in relation to such an order in the circumstances just described. The consequence in my view is that the rules of natural justice are, by necessary intendment, excluded in that circumstance.
  3. The position is less clear in relation to applications for the grant of a s 3LA order after a s 3E warrant has been executed, or after a computer or data storage device has been moved to another location, or after the computer or data storage device has been seized.
  4. There may well be circumstances in which giving the proposed subject of the s 3LA order an opportunity to be heard after a s 3E warrant has been executed and after a computer or data storage device is moved to another location or seized, may operate to frustrate the purpose of the order. That is because of the possibility that the proposed subject of the order will be able, in those circumstances, to take or arrange some action to frustrate the contemplated access to the computer or data storage device.
  5. Counsel for the plaintiff seemed reluctant to acknowledge the prospect that a computer may be disabled, or its functioning disrupted, by remote means, for example, by targeted hacking if the subject is given notice of an application for a s 3LA order. He submitted, however, that even if that be a prospect, it did not support a “necessary intendment”. Counsel submitted that in all cases (other than those in which the s 3LA order is granted before the execution of the warrant), the subject will necessarily know of the warrant and of the police interest in the computer or data storage device in question. In two of the circumstances in which a s 3LA order may be granted, the computer or device in question will have been moved to another place under s 3K or will have been seized under s 3E. Thus, counsel submitted, if the subject was minded to engage in a form of remote accessing of either the computer or device with a view to disabling it or disrupting its function, he or she will have had the opportunity to do so.
  6. That may be so in some cases. The person from whom a computer is seized in the execution of a person warrant will know of that seizure. However, it need not be so in relation to premises warrants, as such a warrant may be executed without the knowledge of the occupier.
  7. But even if it be so in all cases, the extra time associated with the provision of notice to the subject of the proposed order may be critical. For example, the subjects of the order may need time in which to carry out the disablement or disruption. They may lack the skills or means to engage in such tasks themselves and wish to engage a “specialist” for that purpose. The time necessarily involved in making a s 3LA application on notice, or in giving the proposed subject of the order the opportunity to be heard, may allow activities of this kind to occur and therefore the purpose of the s 3LA order to be frustrated.
  8. Quite apart from these prospects, considerations of time may be important in an investigation more generally. The time taken in obtaining a s 3LA order may give the opportunity for others to destroy, hide or disable evidential material to which the AFP would be alerted on accessing the evidential material on the computer or data storage device in question. The time taken in the pursuit of a conventional court hearing may impede many investigations. In this way too, an AFP investigation may be frustrated.
  9. These matters would support an implication of necessary intendment.
  10. I agree that the presence of subs (3) in s 3LA is potentially significant in this context. It is in some respects a puzzling provision. Why did the Parliament stipulate that a s 3LA order cease to have effect in relation to the computer or data storage device to which it refers after the computer or device has been seized? Why does the s 3LA order cease to have effect in that circumstance but not when the computer or device has been moved to another location pursuant to s 3K(2)? These questions are made even more acute by the note to s 3LA(3) which indicates that a further application may be made after the seizure. What point did the Parliament intend to be served by requiring, in effect, a fresh application for a s 3LA order once the item is in the custody of the police? It seems improbable that the Parliament would have thought it appropriate to require a fresh application if it contemplated that the police could rely on the very same information as relied on for the first application.
  11. The answers to some of these questions are found in the history of s 3LA(3) and (4).
  12. In the form enacted in 2001 by the amendments to the Crimes Act effected by the Cybercrime Act 2001 (Cth), s 3LA authorised the grant of an assistance order in respect of data held in, or accessible from, a computer on warrant premises. That is to say, there was no power to grant an order with respect to a computer which had been seized pursuant to the s 3E warrant or moved to another location under s 3K.
  13. Subsections (3) and (4) in a form substantially similar to their current form were inserted into s 3LA by the Crimes Legislation Amendment (Serious and Organised Crime Act (No 2) 2010 (the 2010 Amendment). In the original Second Reading Speech to the House of Representatives on 16 September 2009 in respect of the amendments, the AttorneyGeneral said (relevantly):
Organised crime groups are sophisticated and make full use of rapidly advancing technology.
The bill better enables law enforcement agencies to examine and search electronic equipment in an environment where, increasingly, organised crime is transacted through electronic equipment and over the internet.
This ensures that law enforcement officers are able to access data stored on, or accessible from, electronic equipment that is seized or moved from warrant premises.
New provisions will also allow a magistrate to order a person to provide assistance in accessing data on a computer or data storage device after it has been seized.
This power, which is currently only available when the computer is on the warrant premises, will assist law enforcement officers in overcoming challenges posed by technological developments such as encryption techniques.

(Emphasis added)
  1. In the Explanatory Memorandum provided at the same time, the AttorneyGeneral said:
Subsections 3LA(3) & 3LA(4)
Currently, when and for how long an assistance order is in force is not specified. New subsections 3LA(3) and 3LA(4) will together clarify that a constable must obtain separate orders from a magistrate for requiring a person’s assistance before and after the seizure of a computer or data storage device. Where an order requiring a person to provide assistance is issued before equipment is seized, the order will only be valid until the equipment is seized. If the officer requires additional information or assistance after the equipment is seized, he or she will have to apply to the magistrate for another order.
After the equipment has been taken from the warrant premises, it is necessary to require a separate order to be sought, to ensure that the order specifies the timeframe in which assistance is to be provided, where it is to be provided and any other conditions the magistrate considers appropriate.

(Emphasis in the original)
  1. This explanation was repeated in the Replacement Explanatory Memorandum provided by the AttorneyGeneral in 2010.
  2. When subs (3) was inserted in 2010, the note at its end provided:
An application for another order under this section relating to the computer or data storage device may be made after the seizure. If the other order is made after the computer or device has been removed from the warrant premises, that other order can specify conditions relating to the provision and information or assistance.
  1. The second sentence in this note was repealed by the Crimes Legislation Amendment Act 2011 No 2, 2011 (Sch 3, item 15 which came into effect on 3 March 2011). It seems that the Parliament was not provided with an explanation for that amendment.
  2. The AttorneyGeneral’s explanations for the insertion of subs (3) and (4) in 2009 and 2010 indicate that the rationale for those subsections lay in the change of location of the computer or data storage device. Because they would no longer be on the warrant premises, the subject of the order needed to be informed of where and when the information or assistance is to be provided. In addition, the Parliament recognised that the change of location of the computer or data storage device may make appropriate the imposition of conditions which were not necessary at the time of the first grant of the order. It recognised that the original s 3LA order could no longer be relied on for these purposes and, accordingly, that a new order would be necessary if constables continued to seek information or assistance.
  3. In my view, given that rationale, it is not possible to discern in the AttorneyGeneral’s explanation that a purpose of the insertion of subs (3) was that the subject of the order should then have the opportunity to be heard.
  4. Nor is it possible to discern in the text of s 3LA an indication that a distinction should be drawn between intendment when the application for a s 3LA is made after instead of before the seizure.
  5. Nevertheless, it would be a significant matter to conclude that the principles of natural justice will always be reduced to “nothingness” when the application for the order is made after the seizure of the computer or data storage device. It is difficult to discern such a necessary intendment in relation to an application made well after the seizure of a computer or data storage device, when issues of “tipping off” will not arise.
  6. The circumstances of the present case provide an illustration. The Gold Samsung mobile was seized on 27 August 2018 but the application for the s 3LA order was not made until 30 August 2018. That suggests that issues of time were not regarded as critical. The plaintiff had been aware throughout the three day period that the Gold Samsung mobile had been seized and, accordingly, of the AFP interest in it. If he had been minded to take or arrange some action by remote means to disable or disrupt the functioning of the Gold Samsung mobile, he had had, by the time the application for the s 3LA order was made, ample opportunity in which to do so. The provision of notice that an application under s 3LA was being made, would have added little to that opportunity. Further still, the s 3LA order specified that he was to provide the information or assistance within 24 hours. By its very terms therefore, the order allowed the plaintiff, if so minded, with yet further time in which to engage in an activity directed to the disabling of the Gold Samsung mobile or the disruption of its functioning before he became bound to comply with it.
  7. In his affidavit in support of the application for the s 3LA order, Mr Booth deposed in relation to the absence of notice of the application to the plaintiff:
[9] Notice of the application has not been given to the person in respect of whom the order is sought for the following reason:
It is the experience of the applicant that encrypted devices and software commonly [redacted]. Advance notification of this order pursuant to section 3LA of the Crimes Act 1914 may provide Luppino [redacted] and may compromise the investigation, [redacted].
  1. Because of the redactions, it is not possible to know all of the information placed before the Magistrate in this explanation, although the length of the redactions suggests that the information was not exclusive. It seems improbable, however, that Mr Booth had provided the first defendant with an explanation of why it is that the plaintiff could not already have taken the action about which it seems the AFP were concerned. Furthermore, it is evident that Mr Booth’s concerns were not so acute that he thought it inappropriate that the plaintiff have 24 hours, whether after the making of the order or after the service of the order upon him, to comply with it. During that 24 hours, the plaintiff was seemingly in the same position that he would have been in, had he been given notice of the application.
  2. Given that I will uphold the application for judicial review on other grounds, it is not necessary to express concluded views about these matters. It is sufficient for me to express my conclusion that, while s 3LA may evince a necessary intendment with respect to s 3LA orders made before the execution of a s 3E warrant, and before the movement or seizure of a computer or device, it may not evince such an intention with respect to applications made after seizure has occurred.

Ground 2 – identification of the information or assistance required

  1. By Ground 2, the plaintiff contends that, on its true construction, s 3LA confers a power to make an order requiring the specified person to provide particular information or assistance which is identified in the order itself, and which the magistrate is satisfied is both reasonable and necessary to allow a constable to do one or more of the actions listed in subs (1)(a)(c). That is to say, it is for the magistrate to determine the information or assistance which is “reasonable and necessary” rather than for the constable acting in pursuance of the order.

The plaintiff’s submissions

  1. The plaintiff contends that the s 3LA order made by the first defendant was not authorised by s 3LA because it did not identify the particular information or assistance required of him. Instead, it specified that he was to provide “any” information or assistance which was reasonable and necessary to allow a constable to do one or more of the five actions specified in the warrant. Its practical effect was to require him to comply with any direction with respect to the provision of information or assistance given to him by the AFP, subject only to that direction being “reasonable and necessary” to allow a constable to do one of the specified actions. The plaintiff submitted that an order of this kind is not authorised by s 3LA, with the consequence that, in granting the order, the first defendant exceeded his jurisdiction.
  2. In support of the construction of s 3LA(1) and (2) for which he submitted, counsel for the plaintiff referred to a number of textual and contextual considerations.
  3. First, s 3LA does not contain express words indicating an intention that an order granted pursuant to it should confer on a constable a broad discretion to request any information or assistance of the kind to which the order refers. The absence of such an express statement is significant given that the effect of the order may be to override fundamental common law rights.
  4. Secondly, the fact that s 3LA provides that noncompliance with the order constitutes a criminal offence subject to a maximum penalty of imprisonment for two years suggests that it contemplates the order itself will make reasonably clear what is required of the specified person. It is not to be supposed, counsel submitted, that the question of whether noncompliance constituted an offence should turn on the assessment of whether a particular (usually oral) direction of a police officer was both “reasonable” and “necessary”. Instead, it is reasonable to suppose that such an assessment should be made by reference to the terms of the order. That is to say, s 3LA should be construed as meaning that the specified person, who may have to make an on the spot decision, will know that it has been determined by a magistrate that the particular action required of him or her has been determined to be both reasonable and necessary. Counsel submitted that, given the potential for contestable judgments as to whether the provision of information or assistance is both reasonable and necessary, s 3LA should not be construed as intended to put the specified person in the invidious position of having to elect between compliance with a direction of a constable which the person may be under no obligation to obey (and thus foregoing fundamental common law rights) or refusing and then facing the prospect of imposition of a criminal sanction.
  5. Thirdly, counsel emphasised that the very fact that s 3LA does not authorise police officers to require any information or assistance which they think reasonable and necessary but instead requires an order from a magistrate suggests that “reasonableness” and “necessity” are matters about which the magistrate must be satisfied. That satisfaction cannot be delegated to a constable. Counsel contrasted in this respect the discretions given to executing officers by ss 3K and 3L.
  6. Fourthly, counsel submitted that the use of the disjunctive “or” between the terms “information” and “assistance” suggests that s 3LA contemplates that attention has to be given to which alternative is appropriate in a given case. This was not a submission that s 3LA(1) should be construed as not authorising the provision of both information and assistance but that there is a discretion to be exercised as to whether the order should refer to the provision of information or assistance or both.
  7. Fifthly, counsel referred to the knowledge requirement, ie, the requirement that the magistrate be satisfied that the specified person has “relevant knowledge”. Counsel submitted that this should be understood as knowledge of a kind which would enable the specified person to provide the information or assistance to which the order relates in relation to the particular computer or data storage device. The submission was that it would be surprising if s 3LA intended that magistrates, having satisfied themselves that specified persons do have “relevant knowledge” of this kind, were then authorised to make an order enabling a constable to demand any information or assistance in relation to the computer or device, including information or assistance which extends beyond that found by the magistrate for the purposes of the knowledge requirement.
  8. Sixthly, counsel submitted that the requirement in s 3LA(4) that the order specify both the place at which, and the time within which, the person must provide the information or assistance is more consistent with the Act contemplating that the order will relate to the provision of particular information or assistance, rather than any information or assistance that might later be nominated by a police officer.
  9. Seventhly, counsel submitted that the chapeau to s 3LA(1) follows a commonly used drafting technique for provisions authorising a court to order a person to take some action. Counsel submitted that such provisions are generally understood as defining the outer limits of the power to make the orders rather than the content of each particular order. He referred, by way of example, to s 46PO(4)(b) of the Australian Human Rights Commission Act 1986 (Cth). Counsel submitted, without reference to any authority, that such provisions are not ordinarily construed as authorising the making of any order which merely parrots the terms of the empowering provision itself.
  10. Eighthly, counsel submitted that an order which requires a specified person to provide “any” information or assistance which is reasonable and necessary, with the judgment about those matters being determined in the first instance by the constable, may have the effect that the specified person is required to provide information or assistance of a kind to which the Magistrate did not advert at all when deciding upon the grant of the s 3LA order.
  11. Finally, counsel referred to the principle of legality and contended that a construction which would result in orders which are less restrictive of fundamental common law rights is to be preferred unless it is plain that the broader construction was intended.

The submissions of the Commissioner

  1. Counsel for the Commissioner submitted that there is no ambiguity or uncertainty about the matters to be specified on the face of the order and, in particular, that s 3LA does not require the type or nature of information or assistance to be provided to be specified.
  2. Counsel submitted first that subs (4)(a)(c) provides a complete list of the matters which must be specified in the order.
  3. Next, counsel submitted that the plaintiff’s construction of s 3LA requires “fine legal judgments” which are not consistent with “operational realities”. That being so, the plaintiff’s construction should not be preferred: Hart v AFP 2002 at [68]. In particular, s 3LA should be construed so as to permit a degree of flexibility. It should not be understood as requiring a constable to seek a new order each time a new piece of information or assistance is required. That is especially so as executing officers and those assisting them may well not know, at the time of seeking the order, the particular information or assistance which is necessary and the requirement for further information or assistance may become apparent only when the investigation progresses after some information or assistance has been provided.

Consideration

  1. In my view, some of the matters to which counsel for the Commissioner referred are not persuasive. The matters to which the plaintiff referred do indicate that there is some ambiguity and uncertainty about the matters to be specified in the s 3LA order. It is not unambiguously clear that s 3LA does contemplate that an order may be made which simply parrots the terminology of subs (1).
  2. Further, in my view, subs (4) cannot reasonably be understood as stating exhaustively the matters which must be included in the s 3LA order. Instead, subs (4) serves only to specify two particular matters which must be included and, in the case of the third, to indicate that, if the magistrate determines that some conditions on the requirement for the specified person to provide the information or assistance are appropriate, those conditions be stated in the order. As will be seen later with respect to other grounds, I consider that the order must also provide at least some particularity of the computer or data storage device in respect of which the information or assistance is to be provided and it must in any event be addressed to a specified person. Yet neither of these matters is required by subs (4).
  3. There is some force in the submission of counsel for the Commissioner that s 3LA should not be understood as requiring a constable to seek a new order each time a new piece of information or assistance is required. However, I do not regard that as being a complete answer to the plaintiff’s contention. The s 3LA order could, for example, require the specified person to provide information of a particular type, say, a username, password or private encryption key. Alternatively, it could order the specified person to provide assistance of a more physical kind, for example, a digital fingerprint, a USB cable or perhaps a device into which a data storage device can be placed for the purpose of being read or interrogated. An order along these lines would not have the effect of requiring a constable to return for a new order each time the requirement for a new piece of information or assistance is identified. If the constable found that some different form of assistance is necessary, it would still be open to the constable to seek a further s 3LA order.
  4. One may accept that s 3LA is intended to operate in a context in which regard must be had to “operational realities” and to the prospect of changing circumstances as an investigation proceeds. However, this contention of the plaintiff operates at an antecedent point of time, namely, as to the requirements for the s 3LA order itself. Account can be taken of the operational realities to which counsel for the Commissioner referred in the manner of expression of the order while, at the same time, giving a clear indication to the specified person of what is required for compliance with the s 3LA order.
  5. I am particularly persuaded by the submission of counsel for the plaintiff that specified persons should be informed with some clarity of what it is that may be required of them. The s 3LA order itself is an obvious locus for that clarity of expression.
  6. Further, in my view, the structure of s 3LA(1) is consistent with the position for which the plaintiff contends, namely, that the chapeau in subs (1) is to be understood as describing the limits of the power to make a s 3LA order but not the content of the order itself.
  7. For these reasons, I consider that Ground 2 should be upheld and that for this reason the s 3LA order was not authorised by s 3LA.

Ground 3 – no identification of period or place

  1. Sections 3LA(4)(a) and (b) provide that, when the computer or data storage device is not on warrant premises, the order must specify “the period” within which, and “the place” at which, the person must provide the information or assistance. It is the period within which rather than the time at which, the information or assistance must be provided which is to be specified. Presumably this is to encompass the possibility that the information or assistance may be required over an extended period of time.
  2. Neither the word “period” nor the word “place” is defined in the Crimes Act.
  3. The evident purpose of subs (4) is that the person who is the subject of the s 3LA order in respect of a computer or data storage device which is no longer on warrant premises will know, with some precision, what it is that the order requires with respect to the time and location at which the information or assistance is required.
  4. The order issued by the first defendant on 30 August 2018 stated:
You must provide the information or assistance within 24 hours at Adelaide, South Australia.
  1. Senior counsel for the plaintiff submitted that the statement that the plaintiff was to provide the information or assistance “within 24 hours” was not a specification of a period or, alternatively, a specification with sufficient particularity and that the statement that the information or assistance be provided at “Adelaide, South Australia” was not a specification of a place for the purposes of s 3LA(4)(b) or, at the least, was not a specification with sufficient particularity.

The “period”

  1. The plaintiff’s submission that s 3LA(4) requires a definite period of time to be stated with some specificity has some force. That is indicated by the use of the verb “specify” and by the term “period”. The Macquarie Dictionary has two meanings of the term “period” which are pertinent presently:
An indefinite portion of time, or of history, life etc, characterised by certain features or conditions.
Any specified division or portion of time.
It is the second of these meanings which I consider apposite.
  1. As already indicated, the subject of the s 3LA order is to know, with some certainty, the time within which compliance with the order is required. A statement that the information or assistance must be provided “within 24 hours” does not provide that certainty. That is because it is capable of being understood in different ways:
(a) within 24 hours of the making of the order by the Magistrate;
(b) within 24 hours of the service of the order on the subject; or
(c) within 24 hours of the request by a constable for the provision of information or assistance following service of the order.
  1. Of these alternatives, it is the second which seems most apt on an objective consideration of the s 3LA order.
  2. However, it is not necessary to express a concluded view. That is because of the decision I have reached concerning the specification of place in the s 3LA order. Further, on whichever construction is adopted, the plaintiff could not have been in any doubt that the request made of him by Mr Booth on 30 August 2018 at 1.50 pm was within the period of 24 hours, whichever construction was adopted. Accordingly, the manner in which the first defendant phrased the s 3LA order could not have produced any of the uncertainty for which senior counsel contended. That would make doubtful the utility of a declaration of invalidity based on this aspect of Ground 3.

The “place”

  1. The requirement in the s 3LA order that the plaintiff provide the assistance “at Adelaide” is plainly imprecise. No particular address or location was specified. The term “at Adelaide” could mean the area encompassed by the City of Adelaide, that is, the area within the City “square mile” and the surrounding Parklands. Alternatively, it could mean the area encompassed by Metropolitan Adelaide as a whole. Views may differ about the precise extent of Metropolitan Adelaide but, on any reasonable understanding, the area is substantial, being an area occupied by approximately 1.3 million people.
  2. A number of other matters indicate that subs (4)(b) requires a more particular specification of the place at which the information or assistance is to be provided than the geographic area encompassed by the City of Adelaide or the greater Adelaide Metropolitan Area.
  3. First, subs (4)(b) applies when the computer or data storage device is “not on warrant premises”. Subsection (4) seems to proceed on the assumption or expectation that no specification of place is required when the device is on warrant premises. Presumably the Parliament contemplated that it would be at that place, during the execution of the premises warrant, that the request for information or assistance would be made. Subsection (4)(b) operates in the counterpart situation when the computer or data storage device is no longer at those premises. It is understandable that the Parliament intended that, in that circumstance, subjects of the order would be told of the actual location at which the information or assistance is to be provided so as to know where they must go. That suggests that subs (4) contemplates that the location should be specified in a way similar to that which is applicable with respect to a search warrant concerning warrant premises. Section 3E contains the relevant requirement. It requires, in relation to a premises warrant, that it include a statement of the “premises” to which the warrant relates. The term “premises” is defined in s 3C to include “a place and a conveyance”. Thus, the comparison of the circumstances in which the computer or data storage device may be located suggests that the order should state with some specificity the place at which the information or assistance is required.
  4. Secondly, s 3LA(4)(b) should be read consistently with other provisions in Pt 1AA. As noted earlier, s 3K(2) (also located in Div 2) authorises the executing officer to move a “thing” found in the execution of a premises warrant or a person warrant to another “place” for examination or processing. Section 3K(3) imposes obligations on executing officers when a “thing” has been moved to another place under subs (2):
Notification of examination or processing and right to be present
(3) If a thing is moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so:
(a) inform the person referred to in paragraph (2)(b) or (c) (as the case requires) of the address of the place and the time at which the examination or processing will be carried out; and
(b) allow that person or his or her representative to be present during the examination or processing.

(Emphasis added)
  1. As is apparent, s 3K(3)(a) requires the executing officer to inform the occupier of the premises from which the thing was moved, or the person from whom the thing was seized, of “the address of the place” and the time at which the examination or processing will be carried out. In general terms, s 3LA(4) requires that persons from whose premises or person a thing is taken be informed of the location to which the thing is taken. It is not readily to be supposed that the Parliament intended that a specification that the thing has been moved to “Adelaide” would satisfy that requirement. Such a specification would hardly be meaningful.
  2. Subsection (4)(b) of s 3LA refers only to the “place” and not to “the address of the place” as does s 3K(3). That could be taken to suggest that a s 3LA order does not require the same specificity as does s 3K(3). In my view, that is an improbable construction. There is no reason to suppose that s 3LA(4) requires less by way of specificity than does s 3K(3). That is especially so given that s 3K does not create a criminal sanction, whereas s 3LA does. Furthermore, the scheme of provisions in Div 2 of Pt 1AA suggests that the term “place” is used with a reference to a particular identifiable location. That supports the conclusion that a s 3LA order must specify the particular identifiable location at which the information or assistance is to be provided.
  3. Senior counsel for the plaintiff also referred to s 3ZQO of the Crimes Act, located in Div 4B of Pt 1AA. Section 3ZQO(2) authorises a Judge of the Federal Circuit Court, in defined circumstances, to issue a notice requiring a person to produce documents of a defined kind which are relevant to the investigation of a serious offence. Section 3ZQO(4)(d) requires that a notice issued under subs (2) “specify the place at which the documents are to be produced”. Plainly, subs (4)(d) contemplates that the notice must specify a particular identifiable place at which the recipient of the notice must produce the document. It is inconceivable that such a requirement could be satisfied by the use of such an imprecise term as “at Adelaide”.
  4. There are differences between s 3ZQO and s 3LA. The former requires the physical production of a document or documents. Section 3LA is not confined to the production of physical documents, as it may be information which is to be provided. Nevertheless, a s 3LA order may also require the provision of physical assistance, for example, the provision of the fingerprint recognised by digital technology, or a piece of physical equipment necessary to access the data. In this respect, both s 3ZQO and s 3LA(4) have a similar operation.
  5. In my view, s 3ZQO supports the conclusion that s 3LA(4)(b) requires the specification of a particular identifiable place.
  6. In Coward v Allen [1984] FCA 53; (1984) 52 ALR 320, Northrop J considered the effect of the former s 10 of the Crimes Act. That section permitted a Justice of the Peace, subject to certain conditions which are not presently material, to issue a search warrant authorising a constable to enter “any house, vessel, or place named or described in the warrant”. Northrop J noted, at 333, that the word “place” has many different meanings with the particular meaning being derived from the context in which it is used. His Honour continued:
In its context in s 10 of the Crimes Act, the word “place” should be construed as meaning “a part of space of definite situation”. Thus, the place can be defined by reference to an area of land, whether private or public, or an area of space, for example by reference to a specified floor in a multistoried building. The place may be private or public. The place may be part of an airport or a seaport. Provided the place is defined with sufficient particularity, the authority to search could be expressed to include an authority to search all things found on or within that place, whether a motor vehicle, a caravan, a container, or an aircraft. The essential feature, however, must be a definition of a place by reference to a part of space of definite situation.
  1. The formulation of “a part of space of definite situation” is consistent with the construction of the word “place” in s 3LA(4) which I consider appropriate, namely, it meaning “a particular identifiable location”.
  2. Senior counsel for the Commissioner submitted that part of the context in which the word “place” is to be construed is that the information or assistance is to be provided to a constable. That meant, he submitted, that the word “place” encompasses a place at which the constable to whom to the information or assistance is to be provided can be found. That being so, senior counsel submitted that the specification of “at Adelaide” was sufficient.
  3. In my view, this submission should not be accepted. In the first place, the conclusion does not seem to follow from the premise.
  4. Secondly, it is not clear, as the submission supposed, that s 3LA does require that the information or assistance be given to a constable. Section 3LA does not in terms indicate that that is so. It contemplates that what must be provided is the information or assistance which is reasonable and necessary to allow a constable to engage in the subs (1) activities, but does not stipulate that the information or assistance must be provided to the constable, or even a constable, in person. It is conceivable that the subject of the order could provide a password to a mobile phone or computer to someone else (perhaps a fellow AFP officer, an AFP office member or a computer analyst retained by the AFP) so as to allow the constable to engage in the subs (1) activities.
  5. Thirdly, it is not reasonable to suppose that s 3LA contemplates an order which is no more precise than that the information or assistance be provided in Adelaide wherever the (possibly unspecified) constable may be found. That would leave it to the subjects of s 3LA orders, under the pain of potential criminal sanction, to make their own investigations and enquiries as to the whereabouts of the constable in question.
  6. Senior counsel for the Commissioner next submitted that the specification “at Adelaide” had not caused any practical difficulty in the present case, as there was no indication that the plaintiff had been uncertain as to what he had to do in order to comply with the s 3LA order. I do not regard this as an effective answer to the plaintiff’s submission. The validity or otherwise of the s 3LA order is to be determined at the time of its issue, and not by reference to its effect on a particular subject.
  7. Senior counsel then referred to Project Blue Sky and, in particular, to the statement in the reasons of the plurality at [93] that “[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”. He submitted that question should be resolved in the negative because the s 3LA order had contained sufficient specification to allow the plaintiff to comply with it.
  8. I do not accept that submission. Plainly enough, the plaintiff was not told what it was that he had to do in order to comply with the s 3LA order. The evidence did not disclose the location at which the plaintiff was served with the s 3LA order. Even if it be assumed that that location was somewhere within the area of greater Metropolitan Adelaide, the plaintiff was not told the particular identifiable location at which he was to provide the information or assistance required by Mr Booth. Had the plaintiff wished to revisit the position after 1.50 pm on 30 August 2018, he was not told of the particular place at which he was required to provide the information or assistance.
  9. Accordingly, in my view, the plaintiff makes good his challenge to the validity of the s 3LA order on this part of Ground 3, because s 3LA does not authorise an order in the terms in which it is expressed.

Ground 4 – identification of a computer or data storage device

  1. The plaintiff contended that, in order for a s 3LA order to be valid, it must identify a particular computer or data storage device. Section 3LA does not authorise, so the submission ran, an order in respect of any computer or any data storage device.
  2. The plaintiff submitted that this conclusion followed from the structure of s 3LA. Subsection (1) permits a constable to apply to a magistrate for an order in respect of a computer or data storage device. The indefinite article is used. In contrast, subs (2) authorises the magistrate to grant the order only if satisfied of the evidential material requirement, the status requirement and the knowledge requirement in respect of the computer or data storage device. The definite article is used. This suggests that power is conferred to grant the order with reference to a particular computer or device.
  3. This impression is strengthened by the terms in which subs (3) is expressed. It has the effect that a s 3LA order granted before the seizure of the computer or data storage device ceases to have effect on or after that seizure. It does so by reference to “the” computer or “the” data storage device that is “the” subject of the order.
  4. Senior counsel for the plaintiff also emphasised that the evidential material requirement about which the magistrate must be satisfied is that there are reasonable grounds for suspecting that evidential material is held in, or is accessible from “the” computer or data storage device. That makes it clear, he submitted, that the magistrate’s state of satisfaction is to be formed by reference to the evidential material suspected to be on a particular computer or data storage device.
  5. Next, senior counsel submitted that specified persons are entitled to know the particular computer or data storage device in respect of which they are required to provide the information or assistance. Section 3LA does not contemplate that it can be left to the discretion of a constable seeking the information or assistance to nominate a particular device in respect of which the information or assistance is sought.
  6. It is plain from the terms of s 3LA that an order may be made under that section only with respect to computers or data storage devices of particular kinds. That is, the order may be made only with respect to a computer or data storage device which is on warrant premises, or which has been moved under s 3K(2) to another place for examination or processing, or which has been seized under Div 2. In the latter two circumstances, the constable will, at least ordinarily, be able to specify the computer or data storage device with some particularity. That is less obviously so with respect to a computer or data storage device on warrant premises. When a s 3LA order is made before the execution of the s 3E warrant, the constable may have little knowledge of the particular computer or data storage device, perhaps only that such items are on, or are likely to be on, the warrant premises. That may make it difficult for the constable to provide much by way of particularity, even though otherwise able to satisfy the magistrate that there is such a computer or data storage device on the warrant premises and of the other conditions for the issue of a s 3LA order. That suggests that s 3LA should not be construed as requiring specification in more than general detail of the computer or data storage device in question.
  7. Nevertheless, it is evident that s 3LA contemplates an order being made in respect of a particular computer or data storage device (or particular computers or devices). So much is evident in the use of the definite article “the” in subs (2), (3) and (4). In particular, the magistrate’s satisfaction must be formed in respect of “the” computer(s) or “the” data storage device(s) (subs (2) and (3)) and the s 3LA order must specify matters in respect of the “the” computer(s) or “the” data storage device(s).
  8. In the s 3LA order issued on 30 August 2018, the first defendant commenced by stating his satisfaction that there were reasonable grounds for suspecting that evidential material is held in, or is accessible from, “a” computer or data storage device “which has been seized under the [s 3E] warrant”. The first defendant then referred, with respect to the status requirement and the knowledge requirement, to “the” computer or device.
  9. In the operative terms of the order, the first defendant required the plaintiff to provide to a constable any information or assistance reasonable and necessary to allow the constable to undertake action in relation to “a” computer or data storage device seized under “the” warrant.
  10. Thus, having stated the first defendant’s satisfaction with respect to two of the required conditions by reference to “the” computer or data storage device (expressed in the singular) seized under the warrant, that is, a particular computer or data storage device, the order then required the plaintiff to provide information or assistance with respect to “a” computer or data storage device seized under the warrant. The s 3LA order did not identify otherwise the computer or data storage device to which it referred.
  11. If Mr Clow had seized only one computer or only one mobile phone, this difference may not have mattered. However, in the plaintiff’s case, two mobile phones and one laptop had been seized. This means that the s 3LA order did not inform the plaintiff of the particular device in respect of which he was required to provide the information or assistance.
  12. Senior counsel for the Commissioner sought to overcome this difficulty by submitting that the manner in which the s 3LA order is expressed required the plaintiff to provide any information or assistance reasonable and necessary to allow the constable to access data from each device which had been seized. I agree that this is a possible construction. However, if the Commissioner’s submission be correct, and the s 3LA order can reasonably be understood as referring to all three devices seized from the plaintiff on 27 August 2018, then it suffers from a further vice. That is that the first defendant formed the necessary state of satisfaction by reference to only one of the seized devices but nevertheless issued an order which encompassed all three devices. That is to say, acceptance of the submission of counsel for the Commissioner would mean that the first defendant had not formed the state of satisfaction necessary for the making of a s 3LA order with respect to two of the seized devices.
  13. Accordingly, I uphold Ground 4, noting that the plaintiff did not press the remaining aspects of this Ground. Section 3LA did not authorise the form of order made by the first defendant

Ground 5 – is the Gold Samsung mobile a “computer or data storage device”?

  1. By this Ground, the plaintiff contended that the s 3LA order made by the first defendant on 30 August 2018 was beyond power because the Gold Samsung mobile is not a “computer or data storage device” for the purposes of s 3LA. The plaintiff contended, in the alternative, that the evidential material put before the first defendant could not reasonably support a finding that the Gold Samsung mobile is such a computer or data storage device.
  2. The affidavit of Mr Booth in support of the s 3LA order indicated that the order was sought with respect to the “gold coloured Samsung mobile phone with the Knox Application” found in the centre console of the plaintiff’s vehicle. Mr Booth had deposed that the phone was seized because (relevantly):
...

(Emphasis in the original)
  1. Mr Booth thereafter referred, with reference to the status and knowledge requirements, to the Gold Samsung mobile as “the computer or device”. It is evident that in doing so, he used the terminology appearing in s 3LA(2)(b) and (c). Mr Booth did not, however, provide any explicit information to the first defendant indicating why the Gold Samsung mobile should be characterised as a computer or data storage device.
  2. The s 3LA order itself does not indicate why the Gold Samsung mobile was regarded as a “computer” or as a “data storage device”.
  3. The term “computer” is not defined in the Crimes Act. The term is defined in the Macquarie Dictionary to mean (relevantly):
An apparatus for performing mathematical computations electronically according to a series of stored instructions called a program.
  1. Section 3(1) of the Crimes Act includes the following definitions:
data storage device means a thing containing, or designed to contain, data for use by a computer.
data includes:
(a) information in any form; and
(b) any program (or part of a program).
  1. The definitions of “data” and “data storage device” were introduced into the Crimes Act by the Cybercrime Act. The same Act introduced s 3LA in its original form into the Crimes Act.
  2. As previously seen, s 3LA is an adjunct to s 3L. In its form following amendments effected by the Cybercrime Act, s 3L(1) authorised an officer executing a premises warrant or a constable assisting such an officer, to operate “electronic equipment” at the warrant premises to access data.
  3. As originally enacted, s 3LA authorised a magistrate to grant an order on the application of an officer executing a search warrant at warrant premises which required a specified person to provide any information or assistance which was reasonable and necessary to allow the officer to do one or more of the following:
(a) access data held in, or accessible from, a computer that is on the warrant premises;
(b) copy the data to a data storage device;
(c) convert the data into documentary form.
  1. Section 3LA was repealed and substituted with a provision substantially in its present form by the 2010 Amendment. Minor amendments were also affected by the Crimes Legislation Amendment Act 2011 (No 2) (Cth) but they do not need to be separately noted presently. As previously noted, s 3LA was also amended by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth), but those amendments did not come into effect until 9 December 2018 and are, accordingly, not applicable to the s 3LA order issued by the first defendant.
  2. The revised Explanatory Memorandum presented by the Minister for Justice and Customs in respect of the Cybercrime Bill 2001 explained the purpose of s 3LA as follows:
Proposed section 3LA would enable a law enforcement officer executing a search warrant to apply to a magistrate for an ‘assistance’ order. To grant the order, the magistrate would have to be satisfied (i) of the existence of reasonable grounds to suspect a computer on search premises contains evidence of an offence; (ii) that the subject of the order is reasonably suspected of the offence or is the owner of the computer or computer system, or a current employee of the owner; and (iii) that the subject of the order has relevant knowledge of the functioning of the computer or system or measures applied to protect the computer or system.
The person to whom the order is directed would be required to provide the officer, to the extent reasonably practicable, with such information or assistance as is necessary to enable the officer to access data on the computer system, copy it to a storage device or convert it to documentary form. For example, a person could be required to explain how to access the system or to provide a password to enable access.

(Emphasis added)
  1. In his Second Reading Speech in relation to the Cybercrime Bill, the AttorneyGeneral explained the amendment to s 3L and the introduction of s 3LA as follows:
Investigation powers
The bill will enhance the criminal investigation powers in the Crimes Act 1914 and Customs Act 1901 relating to the search, seizure and copying of electronically stored data. The large amounts of data which can be stored on computer drives and disks and the complex security measures, such as encryption and passwords, which can be used to protect that information present particular problems for investigators. The proposed enhancement of search and seizure powers will assist law enforcement officers in surmounting those problems.
The proposed amendments would clarify that a search warrant can be used to access data that is accessible from, but not held on, electronic equipment at the search premises. As most business computers are networked to other desktop computers and to central storage computers, it is critical that law enforcement officers executing a search warrant are able to search not only material on computers located on the search premises but also material accessible from those computers but located elsewhere.
Computer equipment and disks would be able to be examined and processed off site if this is significantly more practicable than processing them on site. The proposed amendment recognises that searching computers and disks can be a difficult and time consuming exercise because of the large amount of information they can store and the application of security measures, such as encryption. A further proposed amendment would permit officers to copy all data held on a computer hard drive or data storage device where some of the data is evidential material or if there are reasonable grounds to suspect the data contains evidential material.
A magistrate would be able to order a person with knowledge of a computer system to provide such information or assistance as is necessary and reasonable to enable the officer to access, copy or print data. Such a power is contained in the draft Council of Europe Convention on Cybercrime and will assist officers in gaining access to encrypted information.
  1. In the Replacement Explanatory Memorandum relating to the 2010 Amendment, the AttorneyGeneral explained that “[o]perational experience with section 3LA has identified six limitations with the section”. The first of the six limitations identified by the AttorneyGeneral was that there was “no provision allowing assistance to be sought to access data stored in places other than a computer (eg a USB drive)” (emphasis added). The AttorneyGeneral went on to explain the ways in which the amended s 3LA would depart from the existing provision. Relevantly for present purposes, the AttorneyGeneral said:
The source of material that an assistance order can apply to will be expanded to include data storage devices (including USB drives and external hard drives), rather than being limited to data held in, or accessible from, a computer. This change is necessary to keep pace with changes in technology that allow data to be stored in places other than a computer on the premises.

(Emphasis added)
  1. There is nothing in either of these Explanatory Memoranda or in the Second Reading Speech in 2001 to suggest that the terms “computer” and “data storage device” were intended to encompass mobile phones.
  2. The definition of “data storage device” in s 3(1) of the Crimes Act is capable of encompassing a range of storage media including DVDs, CDs, USB drives and computer servers. It may well encompass other forms of storage media as well. However, the term “data storage device” does not seem apt to encompass a mobile phone and, as just indicated, there is nothing in the legislative history, the Explanatory Memoranda or the Second Reading Speech which suggests that the term was intended to encompass mobile phones. Such items have been so ubiquitous for so long that it is natural to expect that, had the Parliament intended that s 3LA should extend to mobile phones, it would have been obvious for it to have said so.
  3. Ordinary experience indicates that mobile phones contain data. Counsel for the plaintiff submitted, however, that the data on a mobile phone is for use on the phone itself and not “for use by a computer” (unless the phone is itself a “computer”). The submission was that if the “thing” referred to in the definition of “data storage device” contains data for use primarily in connection with the “thing” itself, then that is not data “for use by a computer” and the thing is not a “data storage device” even if it is physically possible to upload data onto a computer and to use it there.
  4. These submissions seem to have some force. I am reluctant, however, to express a concluded view about them given that the functions and capacities of mobile phones have not been the subject of evidence in this Court. It is plain, however, that evidence of this kind was not placed before the first defendant. Accordingly, in my view, he could not have been satisfied, acting reasonably and on a correct understanding of the law, that the Gold Samsung mobile was a “data storage device” for the purposes of s 3LA.
  5. While a mobile phone may have the capacity to “perform mathematical computations electronically according to a series of stored instructions called a program”, it does not seem apt to call such an item a computer. Mobile phones are primarily devices for communicating although it is now commonplace for them to have a number of other functions. However, there are now numerous goods and devices which may be said to contain a computer, such as motor vehicles, television sets, refrigerators, DVD players and the like, but none of these are, in common parlance, called a “computer”. Again, the very ubiquity of mobile phones suggests that, if the Parliament had intended that they should be encompassed by the term “computer” it would have been obvious to say so.
  6. It is also pertinent that the Parliament has not chosen to use the term “electronic equipment” in s 3LA, even though it uses that terminology in s 3L and s 3LAA. The term “electronic equipment” seems to have a wider meaning than does the term “computer or data storage device”. That impression is confirmed by ss 23ZA, 23ZD(5) and 23ZF(1)(a) which, in relation to child abuse material, refers separately to a computer, a data storage device and “another piece of electronic equipment”.
  7. Again, the Court did not receive evidence which may enable it to draw, confidently, a distinction between electronic equipment, on the one hand, and a “computer”, on the other. In those circumstances, I am reluctant to express a concluded view. The matters to which I have referred indicate, however, that just as the first defendant did not have before him evidence upon which to form, reasonably, the necessary state of satisfaction that the Gold Samsung mobile was a data storage device, he did not have evidence upon which, acting reasonably, he could have been satisfied that the Gold Samsung mobile was a “computer” for the purposes of s 3LA.
  8. This is not a finding about the sufficiency of the evidence but a finding about the reasonableness in the legal sense of the first defendant’s formation of the necessary state of satisfaction. I refer to the authorities in the consideration of Ground 6.
  9. For this reason, Ground 5 is established. The plaintiff has shown jurisdictional error.

Ground 6 – the required state of satisfaction

  1. Senior counsel for the plaintiff contended that the first defendant could not have been satisfied of the knowledge requirement, that is, that the plaintiff had relevant knowledge of the kind identified in either subs (2)(c)(i) or subs (2)(c)(ii). His submission was that the material before the first defendant justified no more than a suspicion.
  2. For this submission, senior counsel referred to the affidavit of Mr Booth made on 30 August 2018 provided to the first defendant in support of the application for the s 3LA order. In that affidavit, Mr Booth deposed with specific reference to the knowledge requirement:
    1. The following information establishes that the [plaintiff] has relevant knowledge of:
2019_110001.jpgthe computer or device or a computer network of which the computer or device forms or formed a part;
2019_110001.jpgmeasures applied to protect data held in, or accessible from, the computer or device.
The [plaintiff] is suspected of using the gold coloured Samsung mobile phone with the Knox Application, [redacted].
It is suspected that [the plaintiff] has a working knowledge of the encrypted software installed and the PINS and passwords.
  1. In relation to this evidence, counsel submitted that “[a]n unsupported assertion as to a state of “suspicion” in the passive voice (but presumably referring to a “suspicion” held by Federal Agent Booth), was not reasonably or rationally capable of supporting a satisfaction of the facts the subject of that suspicion in the mind of a Magistrate” (emphasis in the original). Counsel then submitted that, in that circumstance, the first defendant could not have had the state of satisfaction which is the precondition for the exercise of the power to make a s 3LA order. Counsel also made a related submission that the first defendant could not have formed the state of satisfaction “reasonably and on a correct understanding of the law”, citing Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [33].
  2. It is established that, when the existence of a particular state of mind is made a condition for the exercise of a power, the legislation conferring the power is treated as referring to a state of mind which is such as can be formed by a reasonable person who correctly understands the meaning of the law under which the person acts: R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42, (1944) 69 CLR 407 at 430; Wei at [33].
  3. In the present case, the only question arising is that of whether the evidence before the first defendant was sufficient to allow him, acting reasonably and on a correct understanding of the law, to form the requisite state of satisfaction. Herein lies the difficulty for the plaintiff’s contention.
  4. First, by reason of the redaction on public interest immunity grounds, the Court does not know all of the information which was before the first defendant. I mention that, although Mr Booth’s affidavit had been filed and served on 5 February 2019, it was not until after the commencement of the hearing on 5 March 2019 that senior counsel for the plaintiff made a challenge to the claim of public interest immunity on which the redaction was based. Senior counsel accepted that this had been insufficient notice. It was not consistent with the principles of case management contained in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). That circumstance, amongst other things, led to my rejecting the plaintiff’s belated challenge to the claim of public interest immunity.
  5. However, quite apart from that consideration, it is not the case, as the submissions of senior counsel supposed, that the only information before the first defendant capable of supporting his state of satisfaction on the knowledge requirement is that contained in [6] of Mr Booth’s affidavit. Mr Booth had also deposed that, when the search warrant was executed, the plaintiff was the sole occupant of the vehicle and that there did not appear to be any items in the vehicle other than those which belonged to him. Further, Mr Booth deposed that the plaintiff had readily admitted that he did not require a PIN or password to operate the Samsung mobile phone and that he had provided readily the password for the Laptop. When asked whether there was a PIN or password for the Gold Samsung mobile, the plaintiff had answered “no comment”. Mr Booth had deposed to his experience in executing numerous search warrants that persons of interest generally freely provide the PINs and passwords to devices which have not been used for a purpose which was redacted in his affidavit, but do refuse to provide PINs or passwords for devices which have been used for that purpose. The evidence before the first defendant was rationally capable of supporting the state of satisfaction on his part that the plaintiff was a person who used or had used the Gold Samsung mobile, that that phone was protected by a PIN and/or password, that the plaintiff had knowledge of the PIN or password, and accordingly, that the plaintiff had “relevant knowledge” of the kind to which s 3LA(2)(c) refers.
  6. Senior counsel for the plaintiff submitted that Mr Booth had not informed the first defendant that the plaintiff had answered the question about the PIN and password in the exercise of his right to silence and that this in some way affected the formation of the first defendant’s state of satisfaction. I think that there are two answers to that submission: first, as senior counsel accepted, this was not a matter about which the first defendant was informed and, secondly, even if that particular piece of evidence was excluded, the evidence was still reasonably capable of supporting the state of satisfaction formed by the first defendant.
  7. A third difficulty for the plaintiff is that the knowledge requirement consists of alternatives, being the matters identified in subs (c)(i) and subs (c)(ii). As it happened, the first defendant indicated that he was satisfied that the plaintiff had knowledge of both, but it would have been sufficient for him to be satisfied of either. This means that the plaintiff must establish that the evidence was not reasonably capable of establishing either of the two alternatives. In my view, he has not done so.
  8. Accordingly, Ground 6 is not made out.

Ground 7 – the capacity in which the first defendant acted

  1. This ground turns on two propositions. The first is that the power to grant a s 3LA order is a power conferred on an individual magistrate in a personal capacity and not as a member of a court – see s 4AAA of the Crimes Act; Hilton v Wells [1985] HCA 16, (1985) 157 CLR 57 at 734; Grollo v Palmer, Commissioner of Australian Federal Police [1995] HCA 26, (1995) 184 CLR 348 at 3634. It was in any event common ground that the power to grant a s 3LA order involves an exercise of an administrative power, which the Australian Parliament may not confer on a State court: R v Kirby; ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 2712.
  2. In the present case, the power was conferred on the first defendant and not on the Magistrates Court of South Australia.
  3. The second proposition is that the s 3LA order bears the seal of the Magistrates Court of South Australia.
  4. The plaintiff submitted that the significance of it having been so sealed is indicated by s 6 of the Magistrates Court Act 1991 (SA) which provides:
(1) The Court will have such seals as are necessary for the transaction of its business.
(2) A document apparently sealed with a seal of the Court will, in the absence of evidence to the contrary, be taken to have been duly issued under the authority of the Court.
  1. The effect of s 9(3)(a) and (d) of the Evidence Act 1995 (Cth) is that the evidential presumption contained in subs (2) applies in these proceedings.
  2. There being no evidence to the contrary, counsel for the plaintiff submitted that the presumption in s 6(2) applied conclusively with the consequence that it must be taken that the s 3LA order was issued with the authority of the Magistrates Court. That meant, he submitted, that the s 3LA order had been granted by an entity which lacked authority to do so, with the consequence that jurisdictional error was established.
  3. I do not accept that submission. The typed words under the first defendant’s signature are “A Magistrate in and for the State of South Australia”. Earlier, in the operative part of the order, the first defendant described himself as “a magistrate within the meaning the Crimes Act 1914”. He was thereby indicating that he is a magistrate who has accepted the conferral of powers under the Crimes Act in his personal capacity (s 4AAA).
  4. These two entries suggest that the first defendant granted the order in his personal capacity, albeit in the exercise of a power conferred on him by reason of his holding office as a magistrate in the Magistrates Court of South Australia. They constitute evidence to the contrary for the purpose of s 6(2) of the Magistrates Court Act.
  5. In expressing that conclusion, I have not overlooked that Mr Booth included a heading on his application for the s 3LA order which stated:
“In the Magistrates Court At Adelaide, South Australia”
That could be taken to indicate a belief on Mr Booth’s part, and perhaps on the part of the first defendant, that it was the jurisdiction of the Magistrates Court which was being invoked. However, I do not draw that inference. I have taken into account that the application does not use a form issued by the Magistrates Court and Mr Booth did not incorporate a Magistrates Court’s heading on his affidavit. Further, neither document incorporates provision for a Magistrates Court’s file or action number.
  1. This Court would not readily conclude that it was the Magistrates Court which had granted the order when, plainly, it lacked authority to do so and when the first defendant had, by his signature and description, indicated that he was doing so in a personal capacity.
  2. There is no evidence of how the seal of the Magistrates Court came to be placed on the s 3LA order. However, once the first defendant had issued the s 3LA order in his personal capacity, the subsequent placement of the seal of the Magistrates Court on the order by, possibly, a person in the Magistrates Court Registry or some other person in possession of a seal could not alter that circumstance.
  3. The presence of the seal of the Magistrates Court of South Australia on the s 3LA order does seem anomalous but, in the face of other indications in the order that the first defendant signed it in his personal capacity, the s 6(2) presumption is displaced.
  4. Accordingly, Ground 7 fails.

Conclusion

  1. For the reasons given above, I have found that Grounds 2, 3, 4 and 5 in the plaintiff’s Statement of Claim have been made out, and that Grounds 6 and 7 fail. I have not found it necessary to express a concluded view on Ground 1.
  2. There will be a declaration that the order of the first defendant made on 30 August 2018 under s 3LA of the Crimes Act with respect to the plaintiff is invalid.
  3. I will hear from the parties with respect to costs.
I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Associate:

Dated: 15 July 2019

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