Federal Court of Australia

Commissioner of the Australian Federal Police v Luppino [2021] FCAFC 43

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge made on 15 July 2019 be set aside and in lieu thereof there be the following orders:

(1)    The applicant’s application for judicial review pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) be dismissed.

(2)    The applicant pay the respondents’ costs of the application to be taxed in default of agreement.

3.    The first respondent pay the appellant’s costs of the appeal to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an appeal from an order made by a judge of this Court on 15 July 2019. The appellant is the Commissioner of the Australian Federal Police (the Commissioner). The respondents are Daniel Luppino (Mr Luppino) and Mr Gregory Charles Fisher SM (the magistrate). The magistrate is a magistrate in the Magistrates Court of South Australia. The subject of the appeal is an order made by the primary judge that the order of the magistrate made on 30 August 2018 under s 3LA of the Crimes Act 1914 (Cth) (the Crimes Act) with respect to Mr Luppino is invalid.

Background

2    Mr Luppino made an application for judicial review of an ex parte order made by the magistrate under s 3LA of the Crimes Act. On 30 August 2018, the magistrate made an order under s 3LA of the Crimes Act requiring Mr Luppino 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. I will refer to this as the Section 3LA Order. The Samsung mobile phone had been seized by members of the Australian Federal Police (the AFP) on 27 August 2018. It was seized from a vehicle being driven by Mr Luppino and in the course of the execution by the AFP of a search warrant issued by a different magistrate on 24 August 2018.

3    The Section 3LA Order was served on Mr Luppino on 30 August 2018 by Sergeant Nigel Booth who is an AFP agent. At the time the order was served, Sergeant Booth asked Mr Luppino to provide the password or passwords to the Samsung mobile phone. Mr Luppino did not do so and he has not provided the password since that time.

4    On 5 September 2018, Mr Luppino commenced proceedings seeking an order for review of the Section 3LA Order pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

5    The magistrate did not take part in the proceedings below or on the appeal. He has indicated that he will submit to any order made by the Court, save as to costs.

6    The proper construction and application of s 3LA of the Crimes Act as in force on 30 August 2018 is at the heart of the appeal. That section is set out below (at [13]).

The Facts

7    On 24 August 2018, Mr McLeod SM issued a warrant to Federal Agent Clow entitled “Search Warrant for Search of a Person” pursuant to s 3E(2) of the Crimes Act. In that warrant, Mr McLeod SM stated that he was satisfied that there were reasonable grounds for suspecting that Mr Luppino had in his possession evidential material as defined in the Crimes Act which satisfied 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 was in the following terms:

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:

•    Conduct a frisk and ordinary search of the person described above, search things found in the possession of the person, and search any conveyance recently used by the person, provided that a constable assisting who is not a constable does not take part in searching a person;

•    seize any evidential material found in the course of the search which satisfies ALL of the above three conditions;

…

(Emphasis in the original.)

8    Federal Agent Clow was one of a number of AFP officers involved in the execution of the warrant on 27 August 2018. He seized, relevantly, three items pursuant to the warrant and they were described in his evidence before the primary judge as follows:

1 Samsung mobile phone in an Otterbox case (that is, a mobile phone case) which was found on [Mr Luppino’s] person (the Samsung mobile).

1 Samsung mobile phone, gold in colour, secured with the Knox Application which was found in the centre console of the vehicle [(the gold Samsung mobile)]

1 Hewlett-Packard laptop (the laptop) found in the footwell of the passenger’s side rear seat.

9    Federal Agent Clow’s evidence was that Mr Luppino told him that the Samsung mobile phone did not require a password. Mr Luppino provided Federal Agent Clow with the password for the laptop. When Federal Agent Clow asked Mr Luppino whether the gold Samsung mobile phone required a password, Mr Luppino said “no comment”.

10    On 30 August 2018, Sergeant Booth made an application for an order under s 3LA of the Crimes Act. The application was supported by an affidavit sworn by Sergeant Booth. That affidavit was partially redacted on public interest grounds. The 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:

•    access data held in, or accessible from, a computer or data storage device which has been seized under the warrant;

•    copy data held in, or accessible from, a computer or data storage device which has been seized under the warrant to another data storage device;

•    convert into documentary form or another form intelligible to a constable data held in, or accessible from, a computer or data storage device which has been seized under the warrant;

•    convert into documentary form or another form intelligible to a constable data held in a data storage device to which the data was copied under subsection 3LA(l)(b) of the Crimes Act 1914;

•    convert into documentary form or another form intelligible to a constable data held in a data storage device removed from warrant premises under subsection 3L(1A) of the Crimes Act 1914.

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

11    Sergeant Booth also provided the magistrate with the form of the order pursuant to s 3LA which he sought and that order was complete in all respects save for the name of the magistrate and his signature and the date. The magistrate did not make any alterations to the substantive form of the order provided to him by Sergeant Booth and the Section 3LA Order which was made is as follows:

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:

•    there are 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 warrant;

AND you are the owner or lessee of the computer or device, or

you are an employee of the owner or lessee of the computer or device, or

you are a person who uses or has used the computer or device, or

you are a person engaged under a contract for services by the owner or lessee of the computer or device, or

you are a person who is or was a system administrator for the system including the computer or device, or

you are reasonably suspected of having committed the offence stated in the relevant warrant

AND

you have relevant knowledge of;

the computer or device or a computer network of which the computer or device forms or formed a part; and

measures 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:

•    access data held in, or accessible from, a computer or data storage device which has been seized under the warrant;

•    copy data held in, or accessible from, a computer or data storage device which has been seized under the warrant to another data storage device;

•    convert into documentary form or another form intelligible to a constable data held in, or accessible from, a computer or data storage device which has been seized under the warrant;

•    convert into documentary form or another form intelligible to a constable data held in a data storage device to which the data was copied under subsection 3LA(1)(b) of the Crimes Act 1914;

•    convert into documentary form or another form intelligible to a constable data held in a data storage device removed from warrant premises under subsection 3L(1A) of the Crimes Act 1914.

You must provide the information or assistance within 24 hours at Adelaide, South Australia.

The requirement on you to provide the information or assistance is subject to the condition that

NOTE: By virtue of section 3LA(5) of the Crimes Act 1914, it is an offence punishable by 2 years imprisonment for a person to fail to comply with this order.

Dated: 30/8/18

[Signed]

A Magistrate in and for the State of South Australia

12    Sergeant Booth served the order on Mr Luppino on 30 August 2018 at 1.50 pm. The transcript of the conversation between Sergeant Booth and Mr Luppino included the following passage:

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.

The Legislative History of Section 3LA

13    Section 3LA as it was on the date which is relevant to this proceeding (i.e., 30 August 2018) was as follows:

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.

14    The legislative history of this section and provisions associated with it is as follows.

15    Section 3LA was introduced into the Crimes Act by the Cybercrime Act 2001 (Cth). In its original form, the section authorised an assistance order, that is, an order for the provision of information or assistance in respect of data held in, or accessible from, a computer on premises which were the subject of a warrant. The primary judge noted (at [176]) that 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.

16    The Cybercime Act introduced the definitions of “data” and “data storage device” into the Crimes Act. Those definitions are in s 3(1) of the Crimes Act and are as follows:

data includes:

(a)    information in any form; and

(b)    any program (or part of a program).

data storage device means a thing containing, or designed to contain, data for use by a computer.

17    Section 3LA as originally enacted did not contain a power to grant an order with respect to a computer that had been seized pursuant to a warrant issued under s 3E or which had been moved to another location under s 3K (emphasis added). A provision which is related to s 3LA is s 3L and that section was amended by the Cybercrime Act and, following those amendments, it authorised an officer executing a warrant in relation to premises and a constable assisting such an officer, to operate electronic equipment at such premises to access data.

18    The Revised Explanatory Memorandum in relation to the Cybercrime Bill 2001 addressed the purpose of s 3LA in the following manner:

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.

19    The Attorney-General, in his Second Reading Speech in relation to the Cybercrime Bill 2001, explained the amendment to s 3L and the introduction of s 3LA in the following manner:

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.

20    Section 3LA was substantially amended by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) (the 2010 Amendment). The authors of the Replacement Explanatory Memorandum for the Bill identify six limitations in s 3LA which were said to have been revealed by operational experience. One of the limitations identified is that “there is no provision allowing assistance to be sought to access data stored in places other than a computer (e.g., a USB drive)”. As stated in the Replacement Explanatory Memorandum, the amendments to s 3LA(1) had the effect of providing that, inter alia:

[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.

21    The 2010 Amendment inserted subsections (3) and (4) (in a form similar to their present form) into s 3LA. The Replacement Explanatory Memorandum refers to subsections (3) and (4) in the following manner:

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.)

22    The Attorney-General, in the original Second Reading Speech delivered to the House of Representatives on 16 September 2009, said the following with respect to the 2010 Amendment:

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.

23    Minor amendments were made to s 3LA by the Crimes Legislation Amendment Act 2011 (No 2) (Cth) (Sch 3, item 15 which came into effect on 3 March 2011). They are not such as to require separate consideration.

The Grounds of Appeal and the Grounds of the Notice of Contention

24    The primary judge held that the Section 3LA Order was invalid on a number of grounds. There are five grounds of appeal and four grounds in the Notice of contention.

25    Ground 1 of the appeal alleges that the primary judge erred in not concluding that the magistrate was not obliged to give Mr Luppino a hearing before he made the Section 3LA Order. The primary judge did not express a concluded view about Mr Luppino’s ground of review to the effect that he was entitled to a hearing before the Section 3LA Order was made. Grounds 1, 2 and 3 of the Notice of contention relate to the question of whether Mr Luppino was entitled to a hearing before the Section 3LA Order was made and are to the effect that he was entitled to such a hearing. In view of the primary judge’s approach to the issue, I will address Ground 1 of the appeal and Grounds 1, 2 and 3 of the Notice of contention after I have addressed the other grounds of appeal and the other ground of the Notice of contention.

26    Each of Grounds 2, 3 and 4 of the appeal and Ground 4 of the Notice of contention relates to whether the Section 3LA Order contains the information required by s 3LA and, in particular:

(1)    the required details of the information or assistance, or both, to be provided by the person (s 3LA) (Ground 2);

(2)    the required information as to the place at which the person must provide the information or assistance (s 3LA(4)(b)) (Ground 3) and the period within which the person must provide the information or assistance (s 3LA(4)(a)) (Ground 4 of the Notice of contention); and

(3)    the required details of the particular computer or data storage device which is the subject of the order (s 3LA) (Ground 4).

These matters raise issues concerning the proper construction s 3LA.

27    There is a further issue in relation to each of these grounds and it arises because of an alternative argument put by the Commissioner. The alternative argument is that, even if the Section 3LA Order did not contain the information required by s 3LA in one or more of these respects, nevertheless, that circumstance did not result in the invalidity of the order.

28    Ground 5 of the appeal raises an issue as to the meaning of the terms “computer” and “data storage device” and whether the magistrate formed the state of satisfaction required by law that the order he was proposing to make related to a computer or data storage device.

29    An issue arose which was common to all of the issues of statutory construction and it concerned the principle applied in the construction of statutory provisions that the legislature does not, in the absence of clear words, intend to abrogate or curtail common law rights or freedoms. Mr Luppino relied on this principle in support of his arguments concerning the proper construction of s 3LA of the Crimes Act. The common law fundamental right or freedom said to be relevant in this case is the privilege against self-incrimination, which counsel for Mr Luppino described as a subset of the right to silence. There was a dispute before the primary judge as to whether an obligation to provide information or assistance pursuant to s 3LA abrogated or curtailed that privilege. The primary judge held, after referring to Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281 at 294 per Gibbs CJ, and Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 at 5 per Deane J and at 11–14 per Toohey, Gaudron, McHugh and Gummow JJ that, although the abrogation of the privilege in this case was indirect, it was nevertheless an abrogation (at [33]); see also his Honour’s earlier decision in Luppino v Fisher [2018] FCA 2016. The Commissioner did not challenge the conclusion that s 3LA abrogated the privilege against self-incrimination. He did challenge the conclusion that the principle referred to had any role, or any significant role, in the construction of s 3LA.

Ground 2 of the Appeal

30    In Ground 2 of the appeal, the Commissioner contends that the primary judge erred in concluding that the Section 3LA Order made in this case was not authorised by s 3LA. In particular, he contends that the primary judge erred in concluding that s 3LA(4) did not contain an exhaustive statement of the matters which must be included in an order made under s 3LA. Further, he contends that his Honour erred in concluding that the Section 3LA Order was invalid because it did not state the information or assistance that Mr Luppino was required to provide.

The Primary Judge’s Reasons

31    The primary judge began his analysis of this ground by summarising the respective submissions of the parties. He noted that Mr Luppino advanced nine submissions. As will be clear from what is set out below, he accepted a number of these submissions. The submissions which he did not expressly accept or reject were repeated on the appeal and are addressed below.

32    The primary judge held that s 3LA(4) did not provide exhaustively for the matters which were required to be stated in an order made under s 3LA because there were at least two matters which must be in an order and yet they are not referred to in the subs (4). These two matters are the identity of the person to whom the order is directed (i.e., the specified person) and “at least some particularity of the computer or data storage device in respect of which the information or assistance is to be provided” (at [121]).

33    The primary judge considered that the Commissioner’s argument that Mr Luppino’s construction of s 3LA should not be adopted because it may give rise to the need for multiple applications under the section as the Commissioner acquires knowledge as to the precise information and assistance required, had some force. However, the primary judge said that it was not a complete answer because the information or assistance required could be identified as information of a particular type, such as a username, password or private encryption key, or the assistance identified as a digital fingerprint, a USB cable or a device into which a data storage device could be placed in order to read. The primary judge said that using descriptions of this nature would reduce the prospect of multiple applications being necessary (at [122]).

34    I note at this point that the primary judge’s approach represents something of a middle position between the precise identification of the information or assistance required on the one hand, and the use of the statutory expression in s 3LA on the other. There may be grey areas in between depending on how specific the description of the type of information to be provided needs to be.

35    The primary judge said that operational realities, which was a matter relied on by the Commissioner in support of his construction of s 3LA, could be taken into account in the manner of the expression of the order, but such realities must be balanced against the need to give the specified person a clear indication of what is required for compliance with an order under the section (at [123]).

36    The primary judge said that he was “particularly persuaded” by Mr Luppino’s submission that specified persons should be informed with some clarity of what it is that may be required of them and he said that the order under s 3LA was the “obvious locus for that clarity of expression” (at [124]).

37    Finally, the primary judge expressed the view that the structure of s 3LA(1) is consistent with the conclusion that the chapeau describes the limits of the power to make an order, but not the content of the order itself.

38    It is not entirely clear what reliance the primary judge placed on the principle of construction referred to earlier. In a section of his reasons before he dealt with each ground of review before him, he set out in clear terms his approach to the construction of s 3LA. It will be helpful if I set out all that he said on that topic (at [36]–[38]):

36    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:

•    in accordance with Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, the primary object is “to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”, at [64];

•    the purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them. Recognition of that purpose may yield a construction of the legislative words which is not necessarily narrowly defined. Remaining ambiguity or doubt, whether of meaning or application, will be resolved in favour of the rights and freedoms of the subject, [65];

•    the search and seizure provisions of the Crimes Act are not punitive and are not to be treated as penal provisions. It is more appropriate to see them as subject to the general principles that govern statutory interference with established common law rights and freedoms, at [67];

•    effect should be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences, at [68];

•    when the language of the statute authorising their use offers choices between one construction requiring “fine legal judgments” in the issue and/or execution of warrants and another which is more likely to be consistent with “operational realities”, then the latter construction is generally to be preferred, at [68]; and

•    there is no requirement that the Court approach the task of construction armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers. Privacy is but one of the interests to be taken into account in construing legislation authorising the exercise of such power, at [68].

37    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.

38    Counsel for the Commissioner emphasised that the principle of legality is a rule of construction, and not of re-writing: Lee v NSW Crime Commission at [313].

39    The principle of construction which is described in modern authorities is a manifestation of the principle of legality as referred to in the second and third dot points in the above summary.

40    The ninth submission made by Mr Luppino to the primary judge was that the principle of legality meant that a construction of s 3LA which would result in orders which are less restrictive of common law rights was to be preferred unless it is plain that a broader construction was intended. His Honour did not articulate a conclusion in those express terms.

The Submissions made by the Parties

41    It is uncontroversial that the construction of a statutory provision involves a consideration of the text of the provision, the context in which it appears and the purpose of the provision or the policy which lies behind it, in particular, the mischief (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan JJ and Kiefel J (as her Honour then was); North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 (North Australian Aboriginal Justice Agency) at [11] per French CJ, Kiefel and Bell JJ). The Commissioner made his submissions by reference to these considerations.

42    With respect to the text of the provision, the Commissioner submits that s 3LA identifies the matters which must be specified in the order, being the following: (1) the person to whom the order is directed (subs (1)); (2) the period within which the person must provide the information or assistance (subs(4)(a)); (3) the place at which the person must provide the information or assistance (subs (4)(b)); and (4) any conditions imposed by the magistrate (subs (4)(c)). There is no requirement in s 3LA to identify in the order made, the particular information or assistance to be provided.

43    With respect to the purpose of the provision, the Commissioner submits that the implication of a requirement that the order specify the particular information or assistance (or both) to be provided would lead to the potentially very inconvenient result that multiple applications would have to be made. He submits that that cannot have been part of the statutory purpose. The Commissioner submits that there might be multiple layers of data protection such that the primary judge’s approach would mean that there might be a need for separate applications (as the Commissioner put it) “layer by layer”.

44    The Commissioner submits that the extrinsic material and, in particular, the Revised Explanatory Memorandum to the Cybercrime Bill 2001, supports his construction of s 3LA. The passage in the Revised Explanatory Memorandum, which is said to be relevant, is the clear statement in the second paragraph in the passage set out above (at [18]) that the order can require the specified person to provide, to the extent reasonably practicable, such information or assistance as is necessary to access data on a computer.

45    The passage in the Second Reading Speech for the Bill, which is said to be relevant and to similar effect, is the last paragraph in the passage set out above (at [19]).

46    With respect to the principle of construction that, absent clear words, the legislature is taken not to have intended to abrogate or curtail fundamental common law rights or freedoms, the Commissioner submitted that: (1) there is no or little room for the operation of this principle in circumstances where the legislature, by the enactment of s 3LA, clearly intended to abrogate the privilege against self-incrimination; or (2) following the primary judge’s approach by reference to Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 (Hart), the principle is only relevant where there is “remaining ambiguity” and there is none in this case.

47    Mr Luppino relies on the reasoning of the primary judge. In addition, as I have said, he repeats some of the submissions he made to the primary judge. He places strong reliance on the principle of legality and its manifestation in the principle of statutory construction referred to earlier. He referred to recent authority of the High Court emphasising the fundamental and important nature of the right to silence and privilege against self-incrimination (Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 at [32]–[34]; Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325 (Strickland) at [101] per Kiefel CJ, Bell and Nettle JJ). He submitted that where it is claimed a statutory provision restricts the common law right to silence, that provision must be “perspicuously expressed and strictly construed” (Strickland at [101]).

Analysis

48    I begin with the argument concerning the principle of construction that, absent clear words, the legislature is taken not to have intended to abrogate or curtail a fundamental common law right or freedom.

49    With respect, Gleeson CJ made a clear statement of the relevant principle in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [19]–[20]:

19    Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that “[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”.

20    A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.

(Citations omitted.)

50    Gleeson CJ provided a further explanation of how the principle of construction worked in Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309 where he said (at [19]–[21]):

19    Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation. The generality of that assertion of principle requires some qualification. It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. It is also true that there is a presumption, relevant for example to the construction of privative clauses, that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied. However, as McHugh J pointed out in Gifford v Strang Patrick Stevedoring Pty Ltd modern legislatures regularly enact laws that take away or modify common law rights. The assistance to be gained from a presumption will vary with the context in which it is applied. For example, in George Wimpey & Co Ltd v British Overseas Airways Corporation, Lord Reid said that in a case where the language of a statute is capable of applying to a situation that was unforeseen, and the arguments are fairly evenly balanced, “it is … right to hold that … that interpretation should be chosen which involves the least alteration of the existing law”. That was a highly qualified statement and, if it reflects a presumption, then the presumption is weak and operates only in limited circumstances.

20    In Coco v The Queen, Mason CJ, Brennan, Gaudron and McHugh JJ said:

“The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.” (Footnote omitted.)

21    The joint judgment in Coco went on to identify as the rationale for the presumption against modification or abrogation of fundamental rights an assumption that it is highly improbable that Parliament would “overthrow fundamental principles, infringe rights, or depart from the general system of law” without expressing its intention with “irresistible clearness”. In R v Home Secretary; Ex parte Pierson, Lord Steyn described the presumption as an aspect of the principle of legality which governs the relations between Parliament, the executive and the courts. 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 and emphasis added.)

51    The recent decision of the Full Court of this Court in Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166 is also relevant. In that case, the Court said (at [22]–[24]):

22    By authorising an overriding of such private interests in certain circumstances, search warrant legislation gives primacy to the public interest in the administration of criminal justice while also recognising the need for appropriate but limited protection of individual rights through the imposition of statutory conditions for the issue of a valid warrant. Strict compliance with those conditions is therefore required in order to give effect to that statutory purpose: George v Rocket at 110-111. However, in construing the statutory requirements for the issue of a search warrant, the Court should be careful to give effect to the legislation by its terms, and not approach its task armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers: Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; 124 FCR 384 at [68]. Construction of statutes that authorise the search of premises and the seizure of things from them must begin with “the ordinary meaning of the words considered according to their context and the legislative purpose”: Hart at [64].

23    Importantly, the search and seizure provisions of the Crimes Act are not punitive and are therefore not to be treated as penal provisions for the purposes of statutory construction: Hart at [67]. Rather, it is appropriate to see those provisions as subject to the general principle that, in the absence of unmistakeable and unambiguous language, it is to be presumed that the legislature has not intended to interfere with basic rights, freedoms and immunities: see, e.g., Hart at [67] and the cases there cited. …

24    For modern search warrant legislation, the same strict compliance with the relevant statutory requirements may generally be seen to apply, but no further. Additional rights or requirements going beyond those spelt out are not easily to be inferred. …

(See Hart at [67]–[68].)

52    The Commissioner’s point that the principle of construction is of limited assistance where the clear purpose of the legislation is (as here) the abrogation of a fundamental common law right or freedom finds support in the remarks of Gageler and Keane JJ in Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 at [313]–[314] as follows:

… The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.

The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that "[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve”.

(Citation omitted; see also CXXXVIII v Honourable Justice Richard Conway White [2020] FCAFC 75; (2020) 274 FCR 170 (CXXXVIII) at [33]–[34].)

53    In North Australian Aboriginal Justice Agency, French CJ, Kiefel and Bell JJ expressed a different view. Their Honours said the following (at [11]):

Before considering the constitutional validity of any statute, it is necessary to consider its construction and operation. Its construction will give effect to the ordinary meaning of its text in the wider statutory context and with reference to the purpose of the provision. Further, the principle of legality favours a construction, if one be available, which avoids or minimises the statute’s encroachment upon fundamental principles, rights and freedoms at common law. That presumption, which is well established, has been called “a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted”. It is a presumption whose longstanding rationale is that it is highly improbable that parliament would “overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”. Its object was set out in the joint judgment of Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen:

“curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.”

It is a principle of construction which is not to be put to one side as of “little assistance” where the purpose of the relevant statute involves an interference with the liberty of the subject. It is properly applied in such a case to the choice of that construction, if one be reasonably open, which involves the least interference with that liberty. As TRS Allan has written:

“Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction.”

(Citations omitted; contrast Gageler J at [80–[81]; see also Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1 at [54] per French CJ, Hayne, Kiefel and Nettle JJ; but see Gageler J at [86]–[88].)

54    The Commissioner submits that on any view of the construction issue, s 3LA authorises an order requiring a specified person to provide information or assistance that is reasonable and necessary to allow a constable to do one or more of the acts in paragraphs 3LA(1)(a), (b) or (c) and that the principle of legality is of “little assistance in determining the construction of whether the information or assistance which must be given is described in the order as particular or generic acts of information or assistance falling within the rubric of the statutory description or more generally by the use of the statutory description itself”.

55    The prevailing view in the High Court, if I may put it that way, appears to be that of French CJ, Kiefel and Bell JJ in North Australian Aboriginal Justice Agency. However, even if that is not clear, it does not seem to me to be necessary to determine what differences there are between the two views and to determine which view should be followed. On any view, the principle of construction is of weak application in this case for two reasons.

56    First, there are not two arguable constructions of the statutory provision going directly to the scope of the power to require a person to provide information or assistance. The scope of the power is clear. It is such information or assistance as is reasonable and necessary to enable a constable to carry out one or more of the matters in s 3LA(1)(a), (b) or (c). The issue of disputed construction goes to a condition on the exercise of the power. I realise there is not always a clear distinction between the scope of a power and the conditions of its exercise, but nevertheless, I think it is relevant to the extent to which the principle of construction is given weight that the issue of disputed construction relates to a condition on the exercise of the power, not directly to the scope of the power.

57    Secondly, and probably in any event, the Commissioner did not seem to push his argument beyond the principles summarised by the primary judge and, in particular, the way in which the matter is put in the second dot point of “[r]emaining ambiguity or doubt” (see [38] above). The Commissioner’s point is that there is no remaining doubt or ambiguity such that the principle of construction has a role to play. On the other side, although counsel for Mr Luppino referred to the well-established rule requiring strict compliance in search and seizure provisions (George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110–111; Smethurst v Commissioner of Police [2020] HCA 14; (2020) 376 ALR 575 (Smethurst) at [25] per Kiefel CJ, Bell and Keane JJ), he did not, as I understood him, seek to challenge the primary judge’s summary of the relevant principles.

58    I turn now to consider the text, context and purpose of s 3LA. This is not a case where there is a particular piece of text which is capable of alternative constructions and the Court must determine which construction is the correct one. Mr Luppino’s submission is that a requirement that the information or assistance to be provided be identified in the order is inherent in s 3LA. The Commissioner’s contention is that Mr Luppino asks the Court to read into the section a condition which must be complied with, rather like the conditions set out in s 3LA(4). On either approach, matters of context, rather than a specific piece of text in the section, are of first importance.

59    I should make clear the exact nature of the dispute as to the construction of s 3LA. In doing so, I will use the shorthand “access data on a computer or data storage device” to describe the matters identified in s 3LA(1) (a), (b) and (c).

60    Both sides agree that the limit of the power in s 3LA is the provision of information or assistance that is reasonable or necessary to allow a constable to access data on a computer or data storage device. The Commissioner submits that the obligation as set out in the order can be expressed in terms of the statutory words, whereas Mr Luppino submits that the information or assistance must be described, although he accepts that the information or assistance may be described generically, that is to say, the type of information or assistance required. Whether Mr Luppino accepts the qualification or not, it is plainly correct. As previously stated, an order under s 3LA may operate both before and after a warrant issued under s 3E of the Crimes Act has been executed. It is correct to say that in the case of an application for an order under s 3LA before a warrant under s 3E has been executed, a constable will often be unaware of the nature of any data protection measures in computers or data protection devices found on the execution of such a warrant. Even in the case of an order under s 3LA obtained after the execution of a warrant issued under s 3E, a generic description must be permissible in order to avoid multiple applications as layers of data protection measures are revealed. As I understand it, this was the view of the primary judge and, in my opinion, it reflects the operational realities which, according to Hart, may be taken into account. The Full Court of this Court in Hart, referred to Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 in which case Mason J held that practical considerations suggested that it was unlikely Parliament intended to import a limitation of the nature advanced in that case into the authority given by a warrant granted under s 10(b) of the Crimes Act. His Honour said (at 83):

In approaching the scope of the authority given by the warrant we must keep practical considerations steadily in mind. It is simply impossible for a police officer executing a warrant to make an instant judgment on the admissibility, probative value or privileged status of the documents which he may encounter in his search. Generally speaking, it is in the course of the subsequent investigation following seizure of the documents that informed consideration can be given to the documents and an assessment made of their worth or significance in the respects already mentioned. … In the case of production on discovery and under subpoena duces tecum there is a court or tribunal already exercising jurisdiction in the matter which could determine questions of relevance and privilege. It is otherwise in the case of search and seizure under a warrant. This indicates that it was unlikely that Parliament intended to import some limitation of the kind suggested into the authority given by a warrant granted under s. 10(b).

61    Practical considerations or operational realities may also be relevant where the issue is whether the search was carried out properly or was carried out reasonably (see Dunesky & Anor v Commonwealth of Australia & Ors [1996] 89 A Crim R 372; (1996) 33 ATR 491).

62    The generic description which may be adopted cannot be so general that it is effectively indistinguishable from using the statutory words. By reason of s 3LA(2), the order which the magistrate may grant is the order which has been the subject of the application under s 3LA(1).

63    It is true, as Mr Luppino submits, that the phrase “information or assistance that is reasonable and necessary” identifies the limits of the power of the magistrate to grant an order, but the fact that it performs this function does not of itself mean that the statutory words cannot be used to describe the information or assistance to be provided in a particular case.

64    The application for an order is made to a magistrate and the magistrate must be satisfied of certain matters before making an order under the section. At some point, on either of the competing constructions, a judicial officer may need to decide whether the specified person is being asked, or has been asked, to do something which falls within the statutory description. The alternatives appear to be that the magistrate decides the issue before the order is made or a Court is asked to decide the issue on an application for enforcement of the order or the hearing of a prosecution for an offence under s 3LA(5). Both are possible interpretations and, as the Commissioner pointed out, statutory obligations to act reasonably in matters otherwise treated as criminal conduct, are not unknown. However, Mr Luppino’s construction operates in a logical way producing greater certainty and is a process that it might reasonably be presumed the legislature would have favoured.

65    Section 3LA(2) deals with the matters of which the magistrate must be satisfied before making an order. The primary judge referred to the matter in paragraph (2)(a) as the evidential requirement, the matter in paragraph 2(b) as the status requirement, and the matter in paragraph (2)(c) as the knowledge requirement. The terms of subs (2) provide some support for the construction advanced by Mr Luppino. There is a link between the knowledge requirement and the formulation of the information or assistance to be provided, although I accept that in a particular case the fact that a person has used a computer or data storage device may be sufficient to satisfy the knowledge requirement and yet say nothing in particular about the information or assistance which might be the subject of an order.

66    Section 3LA(4) deals with the situation where an order is obtained after seizure or removal of the computer or data storage device. On any view, it does not contain all of the requirements concerning the matters to be stated in an order. An order must self-evidently identify the specified person and, leaving aside precisely how the computer or data storage device is described (as to which see Ground 4), the computer or data storage device not on warrant premises must, in the ordinary case, be identified in some way.

67    Some of the requirements in s 3LA(4) seem more consistent with the construction advanced by Mr Luppino than that advanced by the Commissioner. I put it in this way because the point is not a decisive one. It seems to me that the period and place requirements suggest the specified person will be aware from the order itself by what time and where the information or assistance is to be provided.

68    Section 3LA(5) is not inconsistent with either construction advanced. It perhaps favours the construction advanced by Mr Luppino as part of a point made in relation to s 3LA(1) (at [64]). It is perhaps more consistent with the terms of the subsection that the failure to comply it is referring to is a failure to comply with the order itself and not the order supplemented, in practical terms, by the particular requirements and directions of a constable given outside the order.

69    I do not consider that the extrinsic material which the Commissioner relied upon supports his construction (see [18]–[19] above). In my opinion, the use of the statutory words does not mean anything in terms of this particular argument. The statements are statements of a general description of the power and are not directed to the content of orders made under s 3LA.

70    In conclusion, in my opinion, on the proper construction of s 3LA, an order made under the section must describe the information or assistance to be provided, at least by reference to the type of information or assistance to be provided. It is not sufficient to describe the information or assistance by reference to the statutory words in s 3LA(1).

71    The Commissioner’s alternative submission is based on the assumption that his principal submission of no breach or contravention fails. In other words, the assumption for the purposes of the alternative submission is that s 3LA requires the order to specify the information or assistance to be provided and it is not sufficient to use in the order the statutory words in s 3LA(1). The alternative submission advanced by the Commissioner is that even if this is the case, the failure to comply with s 3LA in this respect did not result in invalidity.

72    The starting point for an analysis of the circumstances in which the breach or contravention of a statutory provision results in invalidity is the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky). The key passage in the reasons of McHugh, Kirby, Gummow and Hayne JJ is as follows (at [92] and [93]):

92    Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said “a clause is directory where the provisions contain mere matter of direction and nothing more”. In R v Loxdale, Lord Mansfield CJ said “[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory”. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been “substantial compliance” with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: “substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not.”

93    In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the “elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. 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. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.

(Citations omitted.)

73    Their Honours also made the point that there is no decisive rule that can be applied and that there is not even a ranking of relevant factors or categories to give guidance on the issue (at [91]).

74    Their Honours identified four matters as being relevant to the issue of whether the act done in breach of the provision led to invalidity. Those matters were as follows: (1) the relevant statutory obligation under consideration regulated the exercise of a power already conferred rather than operating as an essential preliminary to the exercise of functions; (2) some of the obligations imposed by the section breached involved matters which were not of a rule like quality which could be easily identified and applied; (3) the relevant statutory provision was such that the likelihood of breach was not fanciful; and (4) the extent of inconvenience to members of the public if the act is held to be invalid is, and always has been, an important consideration.

75    In the case cited in Project Blue Sky, that is, Tasker v Fullwood [1978] 1 NSWLR 20, the Court of Appeal of New South Wales said (at 23–24):

From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statue. Little, if any, assistance, will be derived from the terms of other statues or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty. Ltd. case. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v. Beaumont. (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v. The Commonwealth. (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty. Ltd. case. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v. The Commonwealth.

(Citations omitted.)

76    In this case, the Court of Appeal in deciding that a breach of the relevant statutory provision did not result in invalidity considered that four matters were relevant. They were as follows: (1) the relevant obligation was not expressed to be an essential precondition to the Court’s jurisdiction; (2) the statute did not contain a provision to the effect that, in the absence of compliance, the application should not be granted; (3) the particular obligation did not in that case admit of substantial compliance and there was either strict compliance or non-compliance; and (4) the Court posed the relevant question in terms of whether the requirement in issue is “so cardinal to the object of the statute as to disclose an intention that its complete non-observance should invalidate any order made by the Court?” (at 24).

77    An example of the application of the correct approach is Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 (SZIZO). In that case, six applicants who had had their applications for visas refused applied for review of the decisions by the Refugee Review Tribunal. All of them appeared before the Tribunal. Evidence was given and submissions made. The Tribunal affirmed the decisions. The applicants submitted that the Tribunal had failed to give notice of the hearing to their authorised recipient and that the Tribunal’s decision was invalid. The High Court rejected the submission because the provisions were directed to ensuring natural justice was accorded and there had been no denial of natural justice in the circumstances (at [35]–[36]). The plurality said that invalidity did not result from the breach because, despite the breach, the purpose of the statutory scheme of which the provision formed a part had been achieved.

78    The Commissioner submits that it was and is perfectly clear to everyone, including Mr Luppino, that one piece of information the Commissioner sought from Mr Luppino was the Knox password.

79    Mr Luppino submits that the failure to comply in this case must result in invalidity because the order made was one that simply could not be made and further, the fact that the specified person might infer that what was being sought was the provision of a PIN was irrelevant. He referred to Smethurst in which Kiefel CJ, Bell and Keane JJ said (at [29]):

It follows logically from the underlying rationale of the condition that the offence be stated that the test of sufficient particularity is an objective one, which has regard to the content of the warrant. It can be no answer to a challenge to the validity of a warrant on the ground that it fails clearly to state the nature of the offence in question to say that the persons whose premises are to be searched have some ancillary information as to the offence to which the warrant is intended to relate.

(Citation omitted.)

80    Mr Luppino also points to the circumstance that, as he put it, deficiency in this case relates to the very nature of the Section 3LA Order and not a procedural step in the making of the order.

81    In my opinion, a failure to identify, at least at a general or generic level, the type of information or assistance to be provided renders an order purportedly made under s 3LA invalid. I say that for the following reasons. First, if, as I have held, there must be a specification in the sense I have described of the information or assistance to be provided in the Section 3LA Order, then it follows that the magistrate must have turned his or her mind to the issue. The fact that the magistrate may not have done so in this case bears on the very exercise of the power. Secondly, and relatedly, the section is about the provision of information or assistance in the sense that that is the central purpose of the section and the central purpose of an order made under the section. Thirdly, the consequences for the specified person of non-compliance by him or her are very significant in that they commit an offence punishable by imprisonment. Finally, this is a case where there was a complete failure to comply with the statutory requirement, even accepting (as I do) that it was a requirement that went no further than describing the information or assistance in general or generic terms.

82    In the circumstances, I reject Ground 2 of the appeal and that has the consequence that the appeal against the primary judge’s order must be rejected.

Ground 4 of the Appeal

83    Ground 4 of the appeal is to the effect that the primary judge erred in concluding that the Section 3LA Order did not comply with s 3LA of the Crimes Act because it did not specify the particular computer or data storage device to which the order referred having regard to the following matters: (1) that s 3LA(1) does not require that degree of detail and is limited to requiring a person “to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more” of the things with a computer or data storage device listed in paragraphs (a), (b) or (c) of the subsection; (2) the primacy to be given to operational realities in the construction of s 3LA of the Crimes Act; (3) that the evidence before the primary judge disclosed that the relevant device had been clearly identified to the magistrate before the making of the Section 3LA Order and that the magistrate was able to identify the “gold coloured Samsung mobile phone with the Knox Application” as the relevant computer or data storage device; and (4) the evidence before the primary judge disclosed that Mr Luppino had no doubt that the Section 3LA Order applied to the “gold coloured Samsung mobile phone with the Knox Application”.

The Primary Judge’s Reasons

84    The primary judge said that it was plain from the terms of s 3LA that an order under the section must relate to computers or data storage devices of particular kinds. The computer or data storage device must be on warrant premises or have been moved under s 3K(2) and be at a place for examination or processing, or have been seized under Div 2. In the case of removal or seizure, the constable will be able to specify the computer or data storage device with some particularity. That will be less so in the case of a computer or a data storage device that is on the warrant premises because the constable may have little knowledge of the particular computer or data storage device. The primary judge considered that that circumstance suggested that s 3LA should not be construed as requiring specification in more than “general detail” of the computer or data storage device (at [160]).

85    The primary judge considered that, nevertheless, s 3LA contemplated an order being made in respect of a particular computer or data storage device and that so much was evident from the use of the definite article, the in subs (2), (3) and (4). His Honour placed emphasis on the fact that the magistrate’s satisfaction must be formed in respect of the computer or data storage device and that the order must specify matters in respect of the computer or the data storage device.

86    The primary judge referred to the terms of the Section 3LA Order in this case and the fact that it initially refers to a computer or data storage device which has been seized under the warrant. It then refers to the computer or data storage device in connection with the status requirement and the knowledge requirement. The operative part of the Section 3LA Order reverts to the indefinite article.

87    The primary judge said that if Federal Agent Clow had seized only one computer or mobile phone, the different uses of the definite and indefinite article in the Section 3LA Order may not have mattered. However, in this case, two mobile phones and one laptop had been seized. This meant that the Section 3LA Order did not inform Mr Luppino of the particular device in respect of which he was required to provide the information or assistance.

88    The primary judge agreed with the Commissioner’s submission that a possible construction of the Section 3LA Order was that it related to all devices which had been seized. However, the primary judge said that the difficulty with this submission was that it led to a further vice which arose as a result of the fact that the magistrate had formed the necessary state of satisfaction by reference to only one of the seized devices, that is, the gold Samsung mobile phone.

The Submissions made by the Parties

89    The Commissioner made three submissions in support of his challenge to the primary judge’s decision with respect to Ground 4.

90    First, he submits that the primary judge held that the purpose of s 3LA is “to facilitate the execution of s 3E search warrants” and that s 3LA is an “adjunct” to s 3L. Section 3E(1) permits an issuing officer to issue a search warrant if satisfied of the existence of “reasonable grounds for suspecting” that evidential material is or will be, located at particular premises. Section 3L envisages that electronic equipment found in the course of a search may be operated to access data. Both of these sections are in terms that recognise that it will not be known what will be found. The Commissioner submits that it would be inconsistent with that context to interpret s 3LA so as to require a significantly greater degree of knowledge than the provisions it facilitates. The primary judge’s comment that s 3LA should not be construed as requiring specification in more than “general detail” of the computer or data storage device in question does not overcome the difficulty. Furthermore, the Commissioner submits that the primary judge’s construction of s 3LA in this respect would lead to the undesirable consequence that it would only be possible to obtain an order under s 3LA after devices had been taken from warrant premises. Such a result, it was submitted, would be contrary to the evident purpose of s 3L(3) that the seizure of electronic equipment is an option of last resort (see also to similar effect: s 3K(2)(a)).

91    Secondly, the Commissioner submits that in finding that the Section 3LA Order did not inform Mr Luppino of the particular device in respect of which he was required to provide the information or assistance, the primary judge erred by failing to take into account that Mr Luppino could not, in the circumstances, have been in any doubt as to the device upon which the AFP’s attention was focused. The Commissioner submits that it could not be suggested that Mr Luppino was under any misapprehension about the device in respect of which he was required to provide assistance.

92    Finally, the Commissioner submits that it cannot have been a purpose of the legislation that a breach of the kind in issue would result in invalidity where, in the circumstances of this case, there was a sufficient description to allow Mr Luppino to comply with his obligations.

93    Mr Luppino submits that it is a jurisdictional pre-condition for the making of an order that the magistrate be satisfied that there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device. He submits that, in respect of an order obtained ex parte, the specified person will not be aware of the material that was relied upon to obtain the order, or which particular computer or device was identified to the magistrate. He submits that the device to which the order relates must be capable of being identified from the face of the order. In this case, the Section 3LA Order related to a single device and yet it is not apparent from the face of the order what that device was. Mr Luppino submits that just as a search warrant must on its face state the offence with particularity so that the limits of the search which it authorises can be identified from the warrant itself, the essential nature of an order under s 3LA and the matters which it is required to specify must be clearly stated on its face. In support of his submissions, Mr Luppino referred to Smethurst [29] per Kiefel CJ, Bell and Keane JJ.

Analysis

94    The Commissioner’s submission that the use of the definite article in subsections (2), (3) and (4) is most naturally read as a reference to each device that is captured by subsection (1), rather than leading to the conclusion that s 3LA contemplates an order being made in respect of a particular computer or data storage device (or particular computers or devices) is, in my opinion, correct. Furthermore, the circumstance that when an order under s 3LA is made before the execution of a s 3E warrant, a constable may have little knowledge of particular computers or data storage devices, perhaps only that such items are on, or are likely to be on, warrant premises is significant in terms of how specific the description of the computers or data storage devices needs to be. With respect, I do not think that this consideration is overcome by suggesting, as the primary judge did, that these circumstances mean that s 3LA should not be construed as requiring specification in more than “general detail” of the computer or data storage device in question. It is not clear precisely what his Honour meant by the expression “general detail of the computer or data storage device”, but, in any event, in the circumstances identified, the constable or the magistrate may not even be in a position to specify the “general detail” of the devices.

95    As I have said, the primary judge, after referring to the terms of the Section 3LA Order and the fact that, in relation to the evidential requirement, the order referred to a computer or data storage device and, in relation to the status requirement and the knowledge requirement, it referred to the computer or device and then, in formulating the information or assistance, referred to a computer or data storage device, and noting that the Section 3LA Order did not otherwise identify the computer or data storage device to which it referred, said that had only one computer or mobile phone been seized the difference “may not have mattered”. That was not the case and the primary judge noted that two mobile phones and one laptop had been seized. The primary judge went on to say that the Section 3LA Order did not inform Mr Luppino of the particular device in respect of which he was required to provide the information or assistance. As I understand the primary judge’s reasons, they are that the Section 3LA Order refers to “a computer or data storage device which has been seized under the warrant” and that had only one computer or data storage device been seized under the warrant, then the failure to identify the computer or data storage device with greater particularity may not have mattered.

96    In my opinion, in the circumstances postulated by the primary judge, it is appropriate to conclude that it would not have mattered. The reference in the Section 3LA Order to “a computer or data storage device seized under the warrant” (the warrant having been previously described) would have been sufficient.

97    There is no express requirement in s 3LA to identify the particular computer(s) or data storage device(s) which are the subject of an order under the section, but it is, in a sense, inherent in the section that the specified person be aware of the computer(s) or data storage device(s) which are covered by the order. The point of the passage in Smethurst to which Mr Luppino referred is that one looks to the rationale or purpose of a statutory requirement in relation to a warrant. The test of sufficiency of description is linked to the purpose of the warrant. The purpose of the warrant in Smethurst was not to define the issues for trial, but rather, so that the persons executing and affected by the warrant understand what is being sought. So here the purpose of the unexpressed inherent requirement in the section in relation to the description of the computer(s) or data storage device(s) in the order is so that the specified person understands the devices which are the subject of the order. I should make it clear that I am not here considering whether the magistrate was aware of the device. On the evidence of the affidavit put before him, he plainly was.

98    Had only the gold Samsung mobile phone been seized, I think the description of the computer or data storage device in the Section 3LA Order was sufficient.

99    Does it make any difference that there were two other devices seized? In my opinion, it does not. It is clear that Mr Luppino was aware of the computer or data storage device which was referred to in the Section 3LA Order. During the conversation surrounding the execution of the s 3E search warrant, two mobile phones and a laptop were seized. Mr Luppino was asked whether there was a PIN or a password for the gold Samsung mobile phone and his response was “No comment”. Mr Luppino willingly supplied the password to the laptop and he volunteered information to the effect that the Samsung mobile phone did not require a password. It is clear that when the Section 3LA Order was served on Mr Luppino on 30 August 2018 he was advised by Sergeant Booth that the order related to the gold Samsung mobile phone. He told Sergeant Booth that he did not know the password to the phone. He denied that it was his phone. He described the phone as “just some gold thing”. He was asked if he knew what type of phone it was and he said “Well, you guys said it’s a Samsung”. He was asked whether he had used the phone before and he said that he had not.

100    In my opinion, in a context in which it may be possible to describe the computer or data storage device only in a very general way (i.e., when an order under s 3LA is obtained before a warrant is executed) and the Section 3LA Order in this case referred to a computer or data storage device “which has been seized under the warrant” and it would have been clear to Mr Luppino which of the three seized devices was the subject of the order, the description of the computer or data storage device in the Section 3LA Order was sufficient for the purposes of s 3LA of the Crimes Act.

101    If I am wrong in reaching that conclusion, I consider that, to the extent that there has been a breach of s 3LA, it is not a breach which should lead to the invalidity of the Section 3LA Order. In this respect, I think the High Court’s approach in SZIZO is relevant. In that case, the Court said the following (at [36]):

Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the tribunal’s jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.

102    The facts and context of this case are, of course, very different from the facts and context in SZIZO. Nevertheless, it may be said that any requirement that an order under s 3LA identify the computer or data storage device to which it relates is designed to ensure that the specified person is aware of the device to which the obligations are attached and a failure to comply with a precise identification requires a consideration of whether, in the events which have occurred, the specified person was under any misapprehension as to the device to which the order related. The facts in this case establish that Mr Luppino was under no misapprehension whatsoever.

103    Ground 4 of the appeal is upheld. However, despite this conclusion the rejection of Ground 2 means that the order made by the primary judge stands.

Ground 3 of the Appeal and Ground 4 of the Notice of Contention

104    Ground 3 of the appeal is to the effect that the primary judge erred in concluding that the Section 3LA Order was not authorised by s 3LA of the Crimes Act because the order did not name the particular identifiable location at which Mr Luppino was to provide the information or assistance required, taking into account the following matters: (1) The contrast between the language used in s 3LA(4)(b) and the language used in other provisions in Part 1AA of the Crimes Act; (2) the primacy to be given to operational realities in the construction of s 3LA of the Crimes Act; and (3) the evidence in the case to the effect that Mr Luppino understood where he was to provide the assistance or information required by the Section 3LA Order.

105    The Section 3LA Order provided that Mr Luppino was to “provide the information or assistance within 24 hours at Adelaide, South Australia”. Before the primary judge, Mr Luppino made a related challenge to the Section 3LA Order to the effect that the order was required to, but did not, “specify the period within which the person must provide the information and assistance”. The primary judge rejected this challenge to the Section 3LA Order. His Honour’s rejection of this challenge to the order is the subject of Ground 4 in the Notice of contention in which Mr Luppino contends that the order must specify the period within which the person to whom the order is addressed may provide the information and assistance with reasonable particularity so as to allow the person to understand the obligation imposed by the order and to comply with the obligation. The Section 3LA Order in this case, in referring to a period of within 24 hours, did not identify the starting time from which the period of within 24 hours was to be calculated and either did not “specify” a period for the purposes of s 3LA or did not “specify” the period with reasonable particularity.

106    It is convenient to deal with Ground 3 of the appeal and Ground 4 of the Notice of contention in the one section. I start with Ground 3 of the appeal.

The Primary Judge’s Reasons

107    I preface my remarks about the primary judge’s reasons by noting that the evidence establishes that when Sergeant Booth served the Section 3LA Order on Mr Luppino on 30 August 2018, he had a conversation with him in which he asked Mr Luppino to give him a call “within anytime in the next 24 hours” and he gave Mr Luppino his telephone number. Sergeant Booth told Mr Luppino that he could ask him to come out and see him or that he could come to the AFP office at the airport. He said that Mr Luppino could come to the AFP office at the airport or that they could meet anywhere.

108    The primary judge considered that s 3LA(4)(b) required a more particular specification of the place at which the information or assistance was to be provided than the geographic area encompassed by the City of Adelaide or the greater Adelaide metropolitan area. He reached that conclusion for a number of reasons. First, his Honour noted that s 3LA(4)(b) only operates in circumstances where the computer or data storage device is not on warrant premises. He considered that the subsection seems to proceed on the assumption or expectation that no specification of place is required where the device is on warrant premises. He considered that Parliament presumably contemplated that it would be at that place during the execution of a warrant with respect to premises that the request for information or assistance would be made. His Honour considered that in the counterpart situation, the specified person would be told of the actual location at which the information or assistance was to be provided so that he or she knew where they had to go. His Honour said that s 3LA(4)(b) contemplated that the location or place should be specified in a way similar to that which is applicable for a search warrant in relation to premises. The term “premises” is defined in s 3C of the Crimes Act to include “a place and a conveyance”. A search warrant is to contain a description of the premises to which the warrant relates. His Honour considered that a 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 to be provided.

109    Secondly, his Honour said that s 3LA(4)(b) should be read consistently with other provisions in Part 1AA of the Crimes Act. Section 3K(2) authorises the removal of a thing found at warrant premises or found during a search under a warrant which is in force in relation to a person to another place for examination or processing in order to determine whether it may be seized under the warrant. If that occurs, then s 3K(3) is engaged. That subsection provides as follows:

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.)

110    His Honour considered that it was not readily to be supposed that Parliament intended that a specification that a thing had been moved to “Adelaide” would satisfy that requirement. He considered that such a specification “would hardly be meaningful” (at [140]). He did not consider that the difference between s 3LA(4)(b), which requires the specification of the place, and s 3K(3), which requires information as to the address of the place, suggested any less specification in the case of the requirements in s 3LA(4)(b).

111    The primary judge considered that s 3ZQO also supported the conclusion that s 3LA(4)(b) requires the specification of a particular identifiable place. Section 3ZQO provides that an authorised AFP officer may apply to a judge of the Federal Circuit Court of Australia for a notice under the section in respect of a person if the AFP officer considers on reasonable grounds that the person has documents that are relevant to, or will assist, the investigation of a serious offence. By reason of s 3ZQO(4)(d), the notice must “specify the place at which the documents are to be produced”. Because the physical production of documents is required, the subsection only works if a particular identified place is specified in the notice.

112    The primary judge noted that in Coward v Allen (1984) 52 ALR 320 (Coward v Allen), Northrop J considered the effect of the former s 10 of the Crimes Act. Northrop J considered that, in the context in which it appeared, the word “place” should be construed as meaning “a part of space of definite situation”. The primary judge considered that the definition adopted by Northrop J was consistent with a construction of the word “place” in s 3LA(4) as “a particular identifiable location”.

113    His Honour rejected a submission by the Commissioner that part of the context for the construction of the word “place” is that the information or assistance is to be provided to a constable. The submission was that the word “place” encompassed a place at which the constable to whom the information or assistance was to be provided could be found. In those circumstances, the specification of “at Adelaide” was sufficient. The primary judge rejected that submission for the following reasons. First, his Honour noted that the conclusion did not seem to follow from the premise. Secondly, his Honour said that it is not clear that s 3LA does require that information or assistance be given to a constable and the section does not in terms indicate that that is the case. His Honour considered that it was conceivable that the specified person could provide a password to a mobile phone or computer to someone else so as to allow the constable to engage in the activities set out in s 3LA(1). Thirdly, his Honour considered that 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 constable may be found. That would lead to the possibility of specified persons having to make their own investigations and inquiries as to the whereabouts of the constable in question. That was in a context where criminal sanctions were the result of non-compliance.

114    The primary judge considered that the validity or otherwise of the Section 3LA Order was to be determined at the time of its issue, and not by reference to its effect on a particular specified person. That was the answer to the submission made by the Commissioner that the specification “at Adelaide” had not caused any practical difficulty in the present case as there was no indication that Mr Luppino had been uncertain as to what he had to do in order to comply with the Section 3LA Order. In effect, he rejected a submission that even if the order did not comply with s 3LA, that did not mean that it was invalid because Mr Luppino had sufficient information as to place to enable him to comply with the order.

115    In the result, his Honour held that s 3LA did not authorise an order that referred to “at Adelaide South Australia”.

The Submissions made by the Parties

116    The Commissioner submits that the primary judge’s reasoning proceeded from a flawed premise. He submits that the plain and apposite meaning of the word “place” was “a particular portion of space, of definite or indefinite extent” (see the Macquarie Dictionary, 6th ed). The Commissioner submits that the reference to Coward v Allen did not advance the matter because it dealt with a provision in markedly different terms. In Coward v Allen, the section in issue, the then s 10 of the Crimes Act, was in the following terms:

If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in any house, vessel, or place—

(a)    anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;

(b)    anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or

(c)    anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence,

he may grant a search warrant authorizing any constable named therein, with such assistance as he thinks necessary. to enter at any time any house, vessel, or place named or described in the warrant, if necessary by force, and to seize any such thing which he may find in the house, vessel, or place.

117    The Commissioner submits that the primary judge erred in not sufficiently taking into account the difference between the language used in s 3LA(4)(b) “the place at which the person must provide the information or assistance” and s 3K(3)(a) “the address of the place … at which the examination or processing will be carried out”. The particular error made by the primary judge was a failure to identify that the expression “the address of the place” was a compound expression in which the word “address” is intended to constrain the broader concept of “place” (Sea Shepherd Australia Ltd v Federal Commissioner of Taxation [2013] FCAFC 68; (2013) 212 FCR 252 at [34] per Gordon J). The Commissioner submits that the fact, if it is relevant, that the provision creates a criminal offence tends against his Honour’s conclusion because providing assistance at “Adelaide” is much less onerous and easier to comply with, than a requirement to attend at a particular premises.

118    The Commissioner submits that his Honour erred in concluding that s 3ZQO supports the conclusion that s 3LA(4)(b) required the specification of a particular identifiable place. The context of s 3ZQO is such that it may refer to a particular identifiable place because the section requires the physical production of the documents for compliance. The Commissioner submits that there are other provisions in Part 1AA, including s 3K(3)(a) which use a place in a way that must be broader than a “particular identifiable place”. He submits that an order under s 3LA would not necessarily require the physical attendance of the specified person and, therefore, there was no reason to adopt a constrained interpretation of “place”. He submits that the conclusion of the primary judge that Mr Luppino was not told what it was he had to do in order to comply with the Section 3LA Order was an error having regard to the evidence of the conversation he had with Sergeant Booth.

119    Mr Luppino submits that the coercive nature of the power in s 3LA means that there is every reason to read the word “specify” in s 3LA(4)(b) in its natural sense of requiring that the matters be stated with a substantial degree of specificity and clarity, lest the requirement to “specify” becomes pointless. The reference to “place” must be a reference to a particular identifiable location or premises to enable the specified person to comply with it. He submits that consideration of s 3ZQO supports the construction that “place” means a particular identifiable location or premises and as it appears in the same Division of the same Part of the same Act, in the absence of compelling considerations to the contrary, it can only have been intended to bear the same meaning in both instances.

Analysis

120    By reason of s 3LA(4)(b), an order under the section where the computer or data storage device is not on warrant premises must specify the place at which the person must provide the information or assistance. The question is whether “at Adelaide, South Australia” meets this requirement.

121    Although I agree with a number of the Commissioner’s submissions, I consider that the primary judge’s conclusion is correct.

122    In my opinion, the decision of Northrop J in Coward v Allen is of no particular assistance in this case having regard to the different statutory contexts. The issue in that case was whether “place” in the former s 10 of the Crimes Act included a motor vehicle described merely by its registration number and the place at which it was usually garaged. With respect, it is unsurprising that where the relevant statutory provision required a suspicion about the presence of things in “any house, vessel, or place”, his Honour would interpret the word “place” as “a part of a space of definite situation”.

123    I also agree with the Commissioner that no real assistance is to be gained from a reference to the use of the expression “address of the place” in s 3K(3)(a). It is a different expression from “specify the place” and is used in a different context, being notice to a person affected of the place and time at which he or she may attend to be present during the examination or processing of a thing found during the execution of a search warrant and moved to another place.

124    Further, I do not consider that any real assistance is to be gained from a reference to s 3ZQO. It is a different statutory provision which addresses the production of documents (including in electronic form) relevant to, or which will assist, the investigation of a serious offence pursuant to a notice given by the Court, which notice must specify “the place at which the documents are to be produced”.

125    Finally, I agree with the Commissioner that, as a practical matter, provision of information may not always require the physical attendance of the person at the place specified. Information may be provided by the person electronically, by mail or by telephone.

126    Having made these points, I return to the words of s 3LA(4)(b) and, in particular, the words, “specify the place”. One cannot just focus on the word “place”.

127    The word “specify” is relevantly defined to mean:

to mention or name specifically or definitely; state in detail.

(Macquarie Dictionary, 6th ed.)

128    I do not think that the Commissioner’s reference to the dictionary definition of “place” assists him. When regard is had to the purpose of s 3LA(4)(b), an interpretation that place includes a portion of space of indefinite extent is untenable. Furthermore, even a portion of space of definite extent or an address may involve such a large area of land that reference to it will not effectuate the purpose of the statutory provision. The purpose of the statutory provision is to ensure sufficient identification of a place is provided to the specified person as will enable that person to comply with the order by providing the requested information or assistance. The purpose is not effected by a reference to “at Adelaide, South Australia”. In my opinion, the Section 3LA Order did not comply with s 3LA(4)(b).

129    However, I do not consider that the non-compliance results in the invalidity of the order in this case. Unlike the issue of the specification or description of the information or assistance to be provided, the specification of the place does not go to the heart of an order made under s 3LA. I am not prepared to infer that the legislature intended that in all cases where the place was not specified, or properly specified, in the order, the order was therefore invalid, even if, on the facts, the purpose of the provision, that is the giving of proper notice to the specified person, was otherwise effected.

130    I referred to the facts earlier (at [107]). Having regard to those facts, Mr Luppino would have had no difficulty complying with the Section 3LA Order despite the non-compliance with s 3LA(4)(b).

131    Ground 3 of the appeal is upheld on the basis that the non-compliance with s 3LA(4)(b) did not result in the invalidity of the Section 3LA Order.

The Notice of Contention

The Primary Judge’s Reasons

132    With respect to Ground 4 in the Notice of contention, the primary judge considered that the apposite meaning of the term “period” in s 3LA(4)(a) was that contained in the Macquarie Dictionary (6th ed) as follows:

any specified division or portion of time.

His Honour identified three possible interpretations of the words “within 24 hours” in the Section 3LA Order being within 24 hours of (1) the making of the order; (2) the service of the order; or (3) the request for information or assistance. His Honour considered that the second interpretation was the most apt upon an objective consideration of the Section 3LA Order.

133    The primary judge said that it was not necessary for him to express a concluded view on which interpretation of the Section 3LA Order was the correct one because of the decision he had reached concerning the specification of “place” in the Section 3LA Order. Furthermore, his Honour said that on whichever interpretation is adopted, Mr Luppino could not have been in any doubt that the request made of him by Sergeant Booth on 30 August 2018 at 1.50 pm was within the period of 24 hours. His Honour said that it followed that the manner in which the magistrate phrased the Section 3LA Order could not have produced any of the uncertainty for which senior counsel for Mr Luppino contended. His Honour said that those circumstances meant that it was doubtful that there was utility in a declaration of invalidity based on this ground.

The Submissions made by the Parties

134    Mr Luppino submits that the evident purpose of s 3LA(4) providing certainty as to the specified person’s rights, strongly suggests that an order under s 3LA must specify a “period” in objective terms which can be ascertained from the face of the order. He submits that the Section 3LA Order fails in terms of both clarity and certainty and that it is capable of a number of different interpretations. For example, it might be understood as requiring him to provide any information or assistance requested by a constable within 24 hours of the making of the order. Alternatively, it might be understood as requiring him to provide information or assistance at one time, that is, one single request made by a constable within 24 hours of the time when that single request is made. In the further alternative, it might be understood as requiring him to provide information or assistance each time a constable makes a request and then within 24 hours of the particular request. Mr Luppino submits that the only interpretation that would result in the order itself identifying a particular period is the first. However, the problem with that interpretation is that the actual period for which the order requires assistance to be given is not apparent from the order itself, because the time at which the order was made does not appear anywhere in the order. Mr Luppino submits that the affidavit in support of the application for the Section 3LA Order states that the assistance will be required within 24 hours of any order, whereas the AFP officers understood it as providing either the second or third of the alternatives and they misrepresented the effect of the Section 3LA Order to him when relying on it.

135    The Commissioner submits that the primary judge’s interpretation of the Section 3LA Order as meaning within 24 hours of the service of the order on Mr Luppino is the correct interpretation. The Section 3LA Order was made ex parte and Mr Luppino could only comply with the order from the time he was first made aware of it. Furthermore, such an interpretation means that Mr Luppino was afforded the fullest opportunity to comply with the order. The Commissioner submits that his Honour was correct to doubt the utility of a declaration of invalidity based on this challenge. He submits that even if s 3LA did require a more exact specification of the period in which information or assistance was to be provided, it did not follow that the order is invalid. Mr Luppino was given sufficient information to allow him to comply with the Section 3LA Order and it cannot have been a purpose of the legislation that a breach of the kind alleged by him would result in invalidity.

136    The Commissioner submits that the contention by Mr Luppino that there is any disjunct between the application to the magistrate and the understanding of the AFP officers is not correct. The expression in the application of “within 24 hours of any order” was capable of being read as referring to either the making or the service of the Section 3LA Order.

Analysis

137    I consider that this ground can be dealt with briefly. In my opinion, the most natural construction of the Section 3LA Order is that “within 24 hours” means within 24 hours of the service of the order on the specified person. Furthermore, even if that is wrong and the Section 3LA Order is uncertain as to the period, the facts indicate that a request was made of Mr Luppino within the period resulting from either the first or second constructions and the primary judge was correct to hold (either because invalidity did not result from any failure to comply with the statutory provision or the facts were relevant to the exercise of the discretion to make a declaration) that the utility of a declaration was doubtful.

138    Ground 4 of the Notice of contention is rejected.

Ground 5 of the Appeal

139    In Ground 5 of the appeal, the Commissioner challenges the primary judge’s finding that the magistrate could not have been satisfied, acting reasonably and on a correct understanding of the law, that the gold Samsung mobile phone was a “computer or data storage device” for the purposes of s 3LA of the Crimes Act. He contends that the primary judge’s finding is erroneous, having regard to the following four matters: (1) it was open to the magistrate to find that a smart phone performs the same functions and mathematical computations as a computer and is designed to contain data for use by a computer; (2) a “data storage device” is defined in s 3(1) of the Crimes Act as a thing containing, or designed to contain, data for use by a computer; (3) the Explanatory Memorandum and the Second Reading Speeches for the Cybercrime Bill 2001 support the proposition that the term “data storage device” was intended to encompass a smart phone, being a device capable of storing data for use by a computer; and (4) the question whether the magistrate could have been reasonably satisfied that the gold Samsung smart phone was a computer or data storage device was not a question that required expert evidence.

The Primary Judge’s Reasons

140    The term “data storage device” is defined in the Crimes Act and that definition is set out above (at [16]). The term “computer” is not defined in the Crimes Act. The primary judge referred to one of the meanings of the word in the Macquarie Dictionary (6th ed) as follows:

an apparatus for performing mathematical computations electronically according to a series of stored instructions called a program.

141    The primary judge noted the alternative contentions advanced by Mr Luppino. Mr Luppino contended that the Section 3LA Order made by the magistrate on 30 August 2018 was beyond power because the gold Samsung smart phone was not a “computer or data storage device” for the purposes of s 3LA. In the alternative, he contended that the evidential material put before the magistrate could not reasonably support a finding that the gold Samsung smart phone was a computer or data storage device. The primary judge said that he was reluctant to express a concluded view about the first contention. However, he reached the view that the magistrate could not be satisfied, acting reasonably and on a correct understanding of the law, that the gold Samsung smart phone was a computer or data storage device for the purposes of s 3LA of the Crimes Act. His Honour said that this was not a finding about the sufficiency of the evidence, but rather a finding about the reasonableness in the legal sense of the magistrate’s formation of the necessary state of satisfaction (at [188]). His Honour referred to R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 in which Latham CJ said (at 430):

Thus, where the existence of a particular opinion is made a condition of the exercise of the power, legislation conferring the power is treated as referring to opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts.

(see also Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [33] per Gageler and Keane JJ.)

142    At the outset of his consideration of Mr Luppino’s contention, the primary judge noted (correctly) that the affidavit of Sergeant Booth in support of the application for an order under s 3LA did not provide any explicit information to the magistrate indicating why the gold Samsung smart phone should be characterised as being a data storage device. Furthermore, the Section 3LA Order does not contain anything to indicate why the gold Samsung mobile phone was regarded as a “computer” or a “data storage device”.

143    The primary judge considered that there was nothing in the 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. In referring to Explanatory Memoranda, his Honour is referring to the Revised Explanatory Memorandum in respect of the Cybercrime Bill 2001 and the Replacement Explanatory Memorandum in relation to the 2010 Amendment.

144    The primary judge said that the definition of “data storage device” is capable of encompassing a range of storage media, including DVDs, CDs, USB drives and computer services, and it may well encompass other forms of storage media. His Honour said that the term did not seem apt to encompass a mobile phone and he considered that there was nothing in the legislative history, the Explanatory Memoranda or the Second Reading Speech which suggests that the term was intended to encompass mobile phones. His Honour considered that mobile phones have been so ubiquitous for so long that it was 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 (at [182]).

145    The primary judge said that ordinary experience indicated that mobile phones contain data. He noted the submission made by Mr Luppino to the effect 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 made by Mr Luppino by reference to the definition of “data storage device” 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.

146    The primary judge considered that these submissions had “some force”. However, he was not prepared to express a concluded view about them because the functions and capacities of mobile phones had not been the subject of evidence. Such evidence was not placed before the magistrate and the primary judge considered that he could not have been satisfied, acting reasonably and on a correct understanding of the law, that the gold Samsung smart phone was a “data storage device” for the purposes of s 3LA.

147    For similar reasons, the primary judge reached the same conclusion with respect to the argument that the gold Samsung smart phone was a computer. He noted that a mobile phone may have the capacity to “perform mathematical computations electronically according to a series of stored instructions called a program”. However, it did not seem apt to call such an item a computer. His Honour considered that mobile phones are primarily devices for communicating, although it is now commonplace for them to have a number of other functions. He noted that there were numerous goods and devices which may be said to contain a computer. He gave as examples motor vehicles, television sets, refrigerators, DVD players and the like. He said that none of these goods or devices were in common parlance called a computer. The primary judge said that as with a data storage device, the very ubiquity of mobile phones suggested that if the Parliament had intended that they should be encompassed by the term “computer”, it would have been obvious for it to say so. His Honour also considered that it was of some significance that Parliament had not chosen to use the term “electronic equipment” in s 3LA, even though that terminology is used in s 3L and s 3LAA. He considered that the term “electronic equipment” had a wider meaning than the term “computer or data storage device” and that that impression was confirmed by ss 23ZA, 23ZD(5) and 23ZF(1)(a) of the Crimes Act which, in relation to child abuse material, referred separately to a computer, a data storage device and “another piece of electronic equipment”. However, in the absence of evidence supporting a distinction between electronic equipment on the one hand, and a computer on the other, his Honour was reluctant to express a concluded view. His Honour was prepared to conclude that the matters to which he referred meant that the magistrate “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” (at [187]).

The Submissions made by the Parties

148    The Commissioner submits that the primary judge erred because he had not approached the construction of the word “computer” by reference to how it is ordinarily understood in discourse (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 (SZTAL) at [14] per Kiefel CJ, Nettle and Gordon JJ) and he had subjected the word to an intensive analysis, rather than applying its ordinary and everyday meaning (Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2018] FCAFC 237; (2018) 262 FCR 449 (Pharm-A-Care Laboratories)). In the latter case, the Full Court of this Court identified the principles and said that they included the following (at [24]):

…

(2)    Secondly, subject to statutory context, function or purpose, courts should be cautious of subjecting words in legislation that have an ordinary everyday meaning to intensive analysis. Decision-makers should use “their local knowledge, experience of the world and common sense, to give a sensible interpretation” to the words used; an appellate court “required to review such decisions should endorse those that have been reached and confirmed in this way”: Lansell House Pty Ltd v Federal Commissioner of Taxation [2010] FCA 329; 76 ATR 19 (“Lansell House”) at [57] per Sundberg J (upheld on appeal at (2011) 190 FCR 354 per Bennett, Edmonds and Nicholas JJ); Seay v Eastwood [1976] 1 WLR 1117 (“Seay v Eastwood”) at 1121 per Lord Wilberforce.

…

149    The Commissioner submits that having regard to the natural and ordinary meaning of the word “computer” as ordinarily understood in discourse, there can be no doubt that a modern smart phone is a “computer”. The Commissioner referred to the definition in the Macquarie Dictionary and submits that a smart phone is “an apparatus for performing mathematical computations electronically according to a series of stored instructions called a program”. He refers to the fact that the primary judge appeared to accept as much (at [185]).

150    The Commissioner submits that the primary judge erred in stating his reasons for departing from the natural and ordinary meaning of the word “computer” as it is ordinarily understood in discourse. The first matter relied on by the primary judge was that mobile phones were primarily devices for communicating. The Commissioner submits that even if that is correct, there is no reason to assume an exclusivity between a device for communicating and a computer. It is a matter of common knowledge that tablets, laptops and desktop computers are generally capable of performing both functions.

151    Secondly, the Commissioner submits that the primary judge’s reliance on the absence of a reference to mobile phones in 2001 and in 2010 ignored the fact that the extrinsic material accompanying both Bills was quite sparse and shed no light on the meaning of “computer”. The Commissioner points to the fact that the iPhone was first released in 2008 and there is no reason to suppose that Parliament did not leave “computer” to be given its ordinary meaning and applied to new devices meeting that description as they emerged. That was the approach which Parliament took in 2010 when it decided to broaden s 3LA to include “data storage devices”. The purpose of s 3LA supports the proposition that a mobile phone is a computer for the purposes of the provision.

152    The Commissioner submits that, in any event, a smart phone may be characterised as a “data storage device” because it falls within the definition and he relies on the submissions he made to the primary judge, which I do not need to repeat at this point.

153    The Commissioner submits that the primary judge erred in finding that the question of whether a smart phone could be characterised as a “computer” was attended by doubt. Furthermore, he erred in finding that the magistrate needed to have evidence before him before he could find that the gold Samsung smart phone was a computer or data storage device. The magistrate was entitled to use his “local knowledge, his experience of the world and common sense to give a sensible interpretation to the term computer”. The Commissioner submits that a requirement for evidence “would render it practically impossible to obtain a s 3LA order in advance of executing a warrant …”.

154    Mr Luppino submits (correctly) that the magistrate made the Section 3LA Order on the basis that a mobile phone was a “computer or data storage device” and there is nothing in the material before the magistrate which suggests which of those distinct concepts he relied upon. He submits that the order was beyond the power conferred by s 3LA of the Crimes Act insofar as it related to the gold Samsung mobile phone because that device is not a computer or data storage device within the meaning of s 3LA of the Crimes Act. He submits that by “data storage device”, the Crimes Act contemplates a concept quite different from a mobile phone. In that respect, he relies upon the Explanatory Memorandum for the 2010 Bill. Mr Luppino repeats the argument put to the primary judge that, although a mobile phone may contain data, a mobile phone is designed to contain data for use on the phone itself, not “for use by a computer” (unless, of course, the phone itself is a “computer”). He submits that the definition of “data storage devices” is purposive and the nature of the “thing” must be such that it contains data in order for it to be used by a computer.

155    Mr Luppino submits that the gold Samsung mobile phone is not a computer. He submits that the most common meaning of a computer as used in common parlance does not extend to a mobile phone, even a smart phone. He submits that a person who is asked whether they are carrying a computer does not mislead by answering “no” even if they are carrying their mobile phone. A smart phone is not a computer in ordinary parlance. Mr Luppino seeks to invoke the principle of legality in order to submit that s 3LA is not to be given an expansive interpretation that would cover all kinds of electronic equipment. He submits that s 3LA was deliberately restricted to “computer or data storage devices” despite the extension of the application of many other provisions in the Crimes Act to “electronic equipment”. Mr Luppino submits that Parliament deliberately conferred some powers in respect of “electronic equipment” while limiting the power in s 3LA to “computers” and “data storage devices” only and thereby reflecting a legislative choice about the extent to which fundamental common law rights should be abrogated. He submits that Parliament has not clearly manifested an intention to abrogate such rights in the manner facilitated by s 3LA.

156    In reply, the Commissioner submits that it was not the case that the common meaning of a computer as used in common parlance did not extend to a mobile phone, even a smart phone. He submits that the contemporary understanding of a smart phone is a mobile phone with access to the internet and the functionality of a personal computer. He submits that the ordinary and natural meaning of the term “computer” is to reflect the “contemporary Australian understanding” of the term (Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 at [29]). The Commissioner submits that the principle of legality has no role to play in this area. He submits that it may be accepted that the expression “electronic equipment” appears to denote a broader concept than that of a “computer or data storage device”. However, that does not advance matters because there is no reason to think that a smart phone could not answer both descriptions just as a desktop or laptop computer or a tablet would answer both descriptions. He submits that there remains a significant range of devices which might respond to the description of “electronic equipment” without being “computers or data storage devices”.

157    His Honour identified the following matters as matters upon which there was no evidence:

(1)    No evidence was placed before the magistrate or before the Court of the functions and capacities of mobile phones for the purposes of determining whether a mobile phone was a data storage device (at [184]);

(2)    No evidence was placed before the Court (and presumably the magistrate) which would enable the court to draw a distinction with confidence between a computer on the one hand, and electronic equipment on the other or that could form the basis for a reasonable state of satisfaction that the gold Samsung mobile phone was a computer for the purpose of s 3LA (at [187]).

Analysis

158    Computer is an ordinary English word. It has an ordinary everyday meaning and it is well-established by the authorities that when that is the case, the Court should be cautious of subjecting the word to intensive analysis (Seay v Eastwood [1976] 1 WLR 1117 at 1121 per Lord Wilberforce; Pearce D, Statutory Interpretation (9th ed, LexisNexis, Butterworths, 2019) at [4.11]; Lansell House Pty Ltd v Federal Commissioner of Taxation [2010] FCA 329; (2010) 76 ATR 19 at [57] per Sundberg J; Pharm-A-Care Laboratories at [24] (on appeal [2020] HCA 2; (2020) 94 ALJR 182)).

159    The dictionary definition of computer is set out above (at [149]). The definition of a smart phone in the Macquarie Dictionary (6th ed) is as follows:

a mobile phone with access to the internet and the functionality of a personal computer.

160    According to the definition of smart phone, it is a device that has the functionality of a personal computer. The primary judge appears to have accepted that a mobile phone has the capacity to “perform mathematical computations electronically according to a series of stored instructions called a program” (at [185]).

161    In my respectful opinion, there is no reason not to apply to the words “computer” and “data storage device” the principle that Parliament intended the text to be regarded as ambulatory (R v Gee [2003] HCA 12; (2003) 212 CLR 230 at [7] per Gleeson CJ; Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32; (1970) 123 CLR 327 (Lake Macquarie) at 331 per Barwick CJ; see also Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50; (2015) 236 FCR 199). There is no reason in this case to think that Parliament intended that the terms “computer” and “data storage device” were to be restricted to devices denoted by those words at the time when they were introduced (Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; (2007) 231 CLR 531 although that was a case in which an ambulatory approach was not taken for the reasons set out at [40]–[45] per Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ; SZTAL at [14] per Kiefel CJ, Nettle and Gordon JJ). A subset of the “always speaking” approach to interpretation is that the Parliament has used language which is technologically neutral.

162    Even if it be assumed that in 2001 a computer denoted a mainframe computer, a desktop computer and a laptop computer, but did not include a mobile phone and that it was only upon the introduction of the iPhone in 2008 that it might be said that a smart phone (and then a tablet) fell within the definition of the word “computer”, nevertheless, as in Lake Macquarie, it can be said that the definition of computer — an apparatus for performing mathematical computations electronically according to a series of instructions called a programme — involves a genus and as long as a smart phone falls within the genus it is within the meaning of the word even though it was not something denoted by the word “computer” when it was first enacted.

163    Mr Luppino’s argument was that in ordinary parlance, computer is limited to a desktop, laptop, personal or business computer, but not an iPad or a mobile phone. You cannot conflate functionality of computer with ordinary meaning.

164    In my respectful opinion, none of his Honour’s reasons for considering the issue as one involving uncertainty and doubt are persuasive.

165    First, the absence of any reference to mobile phone in the Explanatory Memoranda or Second Reading Speeches does not appear to me to be a matter of significance in circumstances in which no particular passage was identified by the primary judge or Mr Luppino where, if a mobile phone was a computer, one would have expected to have seen it referred to.

166    Secondly, I consider that the primary judge erred in focussing on the primary use of a device rather than viewing the device as having multiple uses with one such use being sufficient to bring it within the definition. He did this as far as a data storage device is concerned, by placing reliance on the fact that a mobile phone contains data primarily for use in connection with the thing itself rather than by a computer and, as far as a computer is concerned, by placing reliance on the fact that a mobile phone was primarily used for communicating. In my opinion, there is no reason to restrict the definitions of “computer” and “data storage device” to one use of a device, even if that use be a primary use.

167    Thirdly, his Honour placed weight on the fact that the term “electronic equipment” has, it seems, a wider meaning than computer or data storage device because it is used in other sections in the Crimes Act in a way that makes it clear that it includes, but it is not limited to, computer or data storage device (ss 23ZA, 23ZD(5) and 23ZF(1)(a)). That suggests that there is electronic equipment which is not a computer or data storage device. However, that is not a reason to restrict the definition of a computer so that it does not include a device with computer functionality, such as the gold Samsung mobile phone in this case.

168    Before leaving the merits of this ground, I should note a concession quite fairly and properly made by counsel for Mr Luppino. Mr Luppino submitted that the ordinary meaning of computer included a main frame computer, a desktop, laptop, or a personal computer. It does not include a mobile phone and perhaps not an iPad. It does not include the countless objects which have computers in them such as refrigerators and motor vehicles. The submission was that a computer does not, in ordinary parlance, mean a device that has the functionality of a computer, but is a “narrower subset” of a device which has the functionality of a computer. Counsel accepted that a weakness in his submission is that he is not able “to describe in terms that are wholly exhaustive and exclusive in terms of the meaning of computer in ordinary parlance”.

169    The gold Samsung mobile phone was a computer, as that term is used in s 3LA. It might also be characterised as a data storage device. There was no need for the magistrate to have evidence on the point and there was no error in the magistrate forming the required state of satisfaction in relation to this issue.

170    Ground 5 of the appeal is upheld. However, as with Ground 4 and Ground 3, despite this conclusion, the rejection of Ground 2 means that the order made by the primary judge stands.

Ground 1 of the Appeal and Grounds 1, 2 and 3 of the Notice of Contention

171    In Ground 1 of the appeal, the Commissioner contends that the primary judge erred by failing to find that, on the proper construction of s 3LA of the Crimes Act, there is no obligation on the magistrate to whom an application for an order under s 3LA is made after the seizure of a relevant computer or data storage device under Div 2 of Part 1AA of the Crimes Act to provide the person likely to be affected by such an order with an opportunity to be heard before making the order. In Ground 1 of the Notice of contention, Mr Luppino contends that the power to make an order under s 3LA of the Crimes Act is conditioned upon the magistrate complying with the rules of procedural fairness and, in particular, the natural justice hearing rule. In this case, the magistrate was required to give Mr Luppino notice of, and an opportunity to be heard in respect of, the making of the proposed order. That did not occur. Ground 2 of the Notice of contention is put in the alternative to Ground 1 and is to the effect that where an application for an order under s 3LA is made ex parte, the magistrate has a discretion whether to proceed ex parte and is required to consider and determine reasonably, and having regard to proper considerations, whether to do so. In the present case, it is said that the magistrate proceeded to make the order ex parte simply because the application had been made to him ex parte. In the further alternative to Grounds 1 and 2, Mr Luppino contends in Ground 3 of the Notice of contention that there was no reasonable basis in the circumstances of the case for the magistrate to have considered and made the Section 3LA Order ex parte given that the seizure of the device had already occurred and Mr Luppino was to be given 24 hours within which to comply with the order.

172    Although the primary judge addressed Ground 1 of the appeal and Ground 1 of the Notice of contention, he did not express concluded views about those grounds. He said that it was not necessary for him to do so given that he would uphold the application for judicial review on other grounds. The primary judge expressed the 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 data device, it may not evince such an intention with respect to applications made after seizure had occurred.

173    In short, the Commissioner in Ground 1 of the appeal complains that the primary judge did not reach a conclusion in his favour whereas in Grounds 1, 2 and 3 of the Notice of contention, Mr Luppino complains that the primary judge did not reach a conclusion in his favour.

The Primary Judge’s Reasons

174    It was common ground before the primary judge that the Crimes Act does not contain any express provision excluding or limiting the rules of natural justice in relation to an application under s 3LA. In those circumstances, and in circumstances where the exercise of the power is apt to affect the rights or interests of the person to whom the order is directed, the rules of natural justice apply unless it can be shown that they have been excluded by necessary intendment.

175    Nor do I think there was, or is, any dispute that such necessary intendment is not to be inferred from “indirect references, uncertain inferences or equivocal considerations” (Commissioner of Police v Tanos [1958] 98 CLR 383 at 396 per Dixon CJ and Webb J; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ). The rules of natural justice are part of the fundamental principles or general system of law which it is to be presumed to be highly improbable that Parliament would overthrow without expressing its intention with irresistible clearness. It derives from the principle of legality (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252).

176    The primary judge summarised the submissions made to him by Mr Luppino. It is sufficient to note the following. The primary judge rejected a submission made by the Commissioner that Mr Luppino had not identified on the evidence any unfairness which he suffered as a result of not having had a hearing. In other words, he concluded that Mr Luppino, if so advised, could have advanced matters before the magistrate which may have influenced the magistrate’s decision to make the Section 3LA Order or the form of the order. He reached that conclusion having regard to the following four matters: (1) the magistrate had to be satisfied about the existence of a number of factual matters and Mr Luppino may have been able to adduce, or point to, evidence bearing on such matters and make submissions about them. It should not be assumed that submissions Mr Luppino may have made bringing particular matters to the attention of the magistrate, or emphasising particular features of the statutory scheme, could not have made a difference; (2) Mr Luppino could have made submissions about the generality or specificity of the order to be made. By way of example, he could have made submissions as to whether he should be required to provide any information or assistance that is reasonable or necessary, or particular forms of assistance; (3) Mr Luppino could have made a submission to the magistrate that no adverse conclusion should be drawn from his response of no comment to questions he was asked in circumstances where he had previously been cautioned about self-incrimination (Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95); and (4) Mr Luppino could have submitted to the magistrate that he was being asked to grant the order on a misapprehension, namely, that the warrant issued under s 3E pursuant to which the gold Samsung mobile phone had been seized was a warrant with respect to premises and not a warrant with respect to a person. In this respect, he referred to the reference to “warrant premises” in the draft order provided to the magistrate by the Commissioner.

177    The primary judge accepted that some of these matters carried more weight than others (at [70]).

178    The other submission made by Mr Luppino which should be noted is based on s 3LA(3) which provides that if the computer or data storage device, that is the subject of the order, is seized under Div 2 and the order is granted on the basis of an application made before the seizure, then the order does not have effect on or after the seizure. He submitted 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 an opportunity to be heard”. As I will explain, that submission was not accepted by the primary judge.

179    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 sufficiently similar to the issue of a warrant under s 3E that the same necessary intendment that the rules of natural justice are excluded or reduced to nothingness is present.

180    The primary judge said that he considered that the circumstance that s 3LA is intended to facilitate the execution of search warrants is significant. Section 3LA does not operate independently of the provisions concerning search warrants. It is, in fact, an adjunct to those provisions. It seems that what his Honour meant by that is that it provides a means by which those executing search warrants may obtain assistance in order to achieve the purpose of the warrant. His Honour concluded that the principles developed by the courts concerning the application of the rules of natural justice to decisions concerning the issue of search warrants were 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 either removed to another location or is seized. His Honour considered that it was 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.

181    The primary judge accepted the Commissioner’s submission that the rules of natural justice are excluded by necessary intendment in circumstances where a 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. The position is “less clear” in relation to applications for the grant of a s 3LA order after a s 3E search 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 (at [82]).

182    The primary judge noted that there may well be circumstances in which giving the proposed subject of the s 3LA order an opportunity to be heard after the 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 to arrange some action to frustrate the contemplated access to the computer or data storage device. The primary judge noted that counsel for Mr Luppino was 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 noted that counsel for Mr Luppino submitted that even if there was a prospect that that could happen, it did not support a necessary intendment. The submission made by counsel was 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(2) or will have been seized under s 3E. It followed, so the submission went, that if the subject was minded to engage in a form of remote access of either the computer or device with a view to disabling it or disrupting its functions, he or she will have the opportunity to do so.

183    The primary judge said that even if that was so in all cases, the extra time associated with the provision of notice to the subject of the proposed order may be critical because the subject may need time in which to carry out the disablement or disruption. His Honour said that 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 order made under s 3LA may be frustrated. Leaving aside these matters, his Honour said that considerations of time may be important in an investigation more generally. His Honour said that the time taken in the pursuit of a conventional court hearing may impede many investigations and that in this way too an AFP investigation may be frustrated. His Honour considered that these matters supported an implication of necessary intendment.

184    The primary judge addressed Mr Luppino’s submission about the significance of s 3LA(3). He referred to the Second Reading Speech and the Explanatory Memorandum and the Replacement Explanatory Memorandum. He concluded that the rationale for the insertion of subss (3) and (4) in 2009 and 2010 respectively lay in the change of location of the computer or data storage device. Those things were no longer on the warrant premises and the subject of the s 3LA order needed to be informed of where and when the information or assistance was to be provided. Furthermore, the Parliament recognised that the change of location of the computer or data storage device may make it appropriate to impose conditions which were not necessary at the time of the first grant of the order. The primary judge said that it was recognised that the original s 3LA order could no longer be relied on for these purposes, and accordingly, a new order would be necessary if constables continued to seek information or assistance.

185    His Honour concluded that given that rationale it was not possible to discern in the Attorney-General’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.

186    The primary judge said that on the one hand, it was not 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 order is made after, instead of before, the seizure. On the other hand, his Honour considered that it would be a significant matter to conclude that the principles of natural justice would always be reduced to “nothingness” when the application for the order was made after the seizure of the computer or data storage device. His Honour said that it was 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. The primary judge considered that the circumstances of the present case provided an illustration. The course of events suggested that issues of time were not critical. The gold Samsung mobile phone was seized on 27 August 2018, but the application for a s 3LA order was not made until 30 August 2018. Furthermore, the Section 3LA Order specified that Mr Luppino was to provide the information or assistance within 24 hours. In those circumstances, Mr Luppino, had he been minded to do so, had ample opportunity to take or arrange some action by remote means to disable or disrupt the functioning of the gold Samsung mobile. As to Sergeant Booth’s affidavit, the primary judge concluded that Sergeant Booth’s explanation as to why advance notice was not given was not “exclusive”. However, his Honour considered that it was improbable that Sergeant Booth had provided the magistrate with an explanation as to why Mr Luppino could not already have taken the action about which it seems the AFP were concerned. Furthermore, his Honour said that it is evident that Sergeant Booth’s concerns were not so acute that he thought it inappropriate that Mr Luppino have 24 hours whether after the making of the order or after the service of the order upon him to comply with it.

The Submissions made by the Parties

187    The Commissioner submits that there was no obligation to accord natural justice in this case. The starting point for the Commissioner’s argument is that the primary judge correctly found that the rules of natural justice were, by necessary intendment, excluded when a s 3LA order is made before the execution of a search warrant or before the relevant device has been moved or seized. He submits that the case where a s 3LA order is made after the execution of a search warrant or the relevant device has been moved or seized is no different because of the following (as the primary judge correctly found): (1) 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 has been moved to another location or seized, may operate to frustrate the purpose of the order; and (2) considerations of time may be important in an investigation more generally because the time taken in obtaining a s 3LA order may give the opportunity to others to destroy, hide or disable evidentiary material to which the AFP would be alerted on accessing the evidential material on the computer or data storage device in question.

188    Further, the Commissioner submits that the nature of the power strongly suggests that natural justice is excluded and this is reinforced by the cases which indicate that it is common for procedural fairness to be excluded in the investigative context. Furthermore, where it was Parliament’s intention to provide for natural justice, it expressly said so. Examples in the Crimes Act are ss 3K(3C) and 3L(8).

189    The Commissioner also submits that even if natural justice is not excluded by necessary intendment, then nevertheless, Mr Luppino has not identified any specific unfairness that resulted from him being deprived of the opportunity to be heard. Nor has he adduced any evidence to demonstrate that the breach was material in the sense that “compliance could have realistically resulted in a different decision”. The Commissioner, in essence, repeats the submission he made below that whether compliance could realistically have resulted in a different decision is an ordinary question of fact upon which Mr Luppino bore the onus of proof. Mr Luppino has provided no evidence to discharge the onus of proof and any failure to accord natural justice could not lead to relief.

190    The principal matters relied on by Mr Luppino and the Commissioner’s response to those matters are as follows: (1) Mr Luppino submits that an order under s 3LA has the effect of substantially impinging on a person’s common law right to silence and privilege against self-incrimination. The Commissioner submits that even if an order under s 3LA has the effect of substantially impinging on a person’s fundamental common law rights, that does not mean that natural justice could not be excluded; (2) Mr Luppino submits that the making of an order under s 3LA(1)(a)(iii) is premised upon the property to which it relates having already been lawfully seized pursuant to a search warrant issued under the Crimes Act. In those circumstances, there is no evident risk that the device may be destroyed, hidden or disposed of if the person is put on notice of the proposed order. The Commissioner refers to the findings of the primary judge in response (summarised in [182] above); (3) Mr Luppino submits that the pre-conditions for the making of an order include the making of positive adverse findings, that is, satisfaction of facts and not merely a reasonable suspicion (s 3LA(2)(b) and (c)). The Commissioner submits that this does not suggest that the rules of natural justice are to be observed. The same requirement appears in respect of search warrants in s 3E(1) of the Crimes Act and natural justice is excluded in that circumstance; (4) Mr Luppino submits that the conferral of the power on a magistrate reinforces the assumption that the rules of natural justice will be observed, because it is an ordinary incident of the functions of a magistrate that they comply with the rules of natural justice. The Commissioner disputes this proposition and contends that it is well-established that some functions which are performed by judges acting persona designata do not attract the requirements of natural justice, including the power to issue certain arrest and telephone interception warrants (CXXXVIII at [110]–[113]); and (5) Mr Luppino submits that s 3LA(3) makes it necessary to apply for, and obtain, a new s 3LA order after a device has been seized, a matter of which the person affected will ordinarily be aware. Mr Luppino submits that, in those circumstances, s 3LA is not concerned to ensure that the person remains unaware that the police are looking to access the device in question. The Commissioner submits in response that as the primary judge explained (at [85]), a person whose device is seized in the execution of a warrant with respect to premises may not be aware of the seizure. In any case, consistently with the response to (2) above, notifying a person that their device is the subject of an application might provide an incentive to attempt to frustrate the effect of any eventual order.

Analysis

191    In this case, the gold Samsung mobile phone has been seized as part of the execution of a warrant for the search of a person issued under s 3K(2) of the Crimes Act. The application for an order under s 3LA was made after the execution of the warrant and the seizure of the phone.

192    Section 3LA is not limited to this situation. An application may be made under s 3LA at the same time as an application is made for a warrant for the search of premises or for the search of a person (s 3E(1), s 3E(2)). In those circumstances, notice of the application under s 3LA would alert the proposed subject of the order of the impending search thereby giving rise to the very real potential of compromising the search. It was common ground before his Honour that natural justice would not attach to an application for an order under s 3LA in those circumstances. The necessary legislative intendment to exclude natural justice is present in those circumstances. In effect, the necessary intendment is present in the case of such warrants because natural justice would otherwise compromise or thwart the effectiveness of those processes and it is also present where s 3LA is used as an adjunct to those processes.

193    The processes of obtaining and executing search warrants are directed towards obtaining evidential material. Section 3LA (and s 3L) are directed towards assisting in those processes. In the case of s 3LA, it is designed to enable the relevant person to access data held on computers and data storage devices.

194    The primary judge correctly proceeded on the basis that it would or, at least, may be possible to destroy, hide or disable evidential material before a constable had gained access to that material even though the computer or data storage device had been seized. Subject to a warrant with respect to premises where the occupier may not be aware of the execution of the warrant, it may be accepted, as Mr Luppino submits, that a possible undermining of the effectiveness of an order under s 3LA is inherent in the case of a warrant under s 3E followed at some point afterwards by an order under s 3LA because of a lapse of time between the two events and further, the potential is inherent in the granting of a period of time within which to provide the information or assistance as contemplated by s 3LA(4)(a). However, there is a second difficulty for Mr Luppino, as the primary judge said. If natural justice applies, then an application under s 3LA must be made on notice and the subject of the proposed order must be given the opportunity to be heard. It is reasonable to infer that that will delay the Commissioner’s investigation. It might involve considerable delay. That gives rise to the potential for any order ultimately obtained to be rendered ineffective because disablement or disablement activities are carried out and, at a more general level, for any evidential material that might have been obtained following access to the evidential material on the computer or data storage device being destroyed, hidden or disabled.

195    Those matters point strongly to a conclusion that natural justice has been excluded by necessary intendment even in the case where the order under s 3LA is sought after the search warrant has been executed and the computer or data storage device has been seized. These matters are not outweighed by the consideration that the proposed subject of the order may be able to say something about the matters in s 3LA(2). As to the significance of s 3LA(3), I think that the requirement in the subsection can be explained as it is in the Replacement Explanatory Memorandum as making clear for how long an order under s 3LA is in force and for the practical reason of ensuring “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”.

196    Ground 1 of the appeal must be upheld and Ground 1 of the Notice of contention must be rejected.

197    The alternative arguments raised by Mr Luppino in Grounds 2 and 3 of the Notice of contention were not addressed by the primary judge. That is not a criticism. He dealt very thoroughly with the grounds he considered he needed to address. Nevertheless, they must be rejected. Although there is nothing in the Section 3LA Order which indicates that the magistrate considered (and rejected) providing natural justice to Mr Luppino, the following appears in Sergeant Booth’s affidavit sworn on 30 August 2018 which accompanied the application for the order:

[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].

There is nothing else in the material to indicate that the magistrate did not consider whether to provide natural justice to Mr Luppino. There is no sufficient basis to infer that he did not consider the matter.

198    The submission that there was no reasonable basis to proceed ex parte and not accord natural justice to Mr Luppino having regard to the facts that the seizure of the devices had already occurred and that Mr Luppino was to be given 24 hours within which to comply with the Section 3LA Order must be rejected. The fact that the seizure of the devices had already occurred does not suggest that there was no reasonable basis for not providing natural justice having regard to the potential for disablement or disruption. Nor is the fact that Mr Luppino was given 24 hours within which to comply with the Section 3LA Order a strong reason to consider that natural justice should have been accorded to Mr Luppino. It is true that there was potential for disablement or disruption to occur within this time. However, there was substantially greater potential for disablement or disruption to occur in the period it would have taken to accord natural justice to Mr Luppino, even assuming some modification to the “hearing” to be provided to Mr Luppino.

199    Grounds 2 and 3 of the Notice of contention must be rejected.

Conclusion

200    The Commissioner succeeds on Grounds 1, 3, 4 and 5 of the appeal and all grounds in the Notice of contention fail. However, Ground 2 of the appeal fails and that means the primary judge’s order stands and the appeal must be dismissed.

Associate:    

Dated:    25 March 2021

REASONS FOR JUDGMENT

WIGNEY AND ABRAHAM JJ:

201    This is an appeal by the Commissioner of the Australian Federal Police (Commissioner) against an order made by a judge of this Court that the order of a Magistrate made on 30 August 2018 pursuant to s 3LA of the Crimes Act 1914 (Cth) with respect to the respondent (the Order), is invalid: Luppino v Fisher (No 2) [2019] FCA 1100.

202    Although there are a number of grounds in the review, they centre on the proper construction and application of s 3LA of the Crimes Act as in force on 30 August 2018.

203    We have had the advantage of reading the draft reasons of Besanko J. We differ in respect to the resolution of ground 2 and in respect to ground 4, while we agree with the conclusion, we prefer to express our own reasons for doing so. We agree with the reasoning and conclusions in respect to the remaining grounds and the notice of contention. The difference in respect to ground 2 has the result that in our view the appeal should be allowed.

204    The following are our reasons in respect to grounds 2 and 4.

205    In addressing ground 2, we gratefully adopt without repeating Besanko J’s summary of the background to the appeal, its factual basis and the legislative history.

Ground 2: The information or assistance required to be provided

206    The primary judge concluded that the Order failed to identify the information or assistance which Mr Luppino was required to provide, and that s 3LA required it to do so.

207    The primary judge’s reasoning is as follows. First, he concluded that it is not unambiguously clear that s 3LA does contemplate that an order may be made which simply parrots the terminology of subs (1): at [120]. Second, the primary judge concluded that subs (4) did not exhaustively state the matters which must be included in the s 3LA order: at [121]. Third, the primary judge found that although there is some force in the submission 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, it was not a complete answer to the plaintiff’s contention: at [122]. Fourth, 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. In that regard the primary judge observed at [122] that:

… 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.

208    Fifth, the primary judge was particularly persuaded by the submission for the plaintiff that specified persons should be informed with some clarity of what it is that may be required of them, with the s 3LA order itself being an obvious locus for that clarity of expression: at [124]. Finally, the primary judge concluded that the structure of s 3LA(1) is consistent with the position for which the plaintiff contends, 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 an order itself.

209    The Commissioner made submissions as to what he contended are the principles which apply in construing s 3LA. The Commissioner submitted that it is not for the Magistrate making an order to decide in advance and particularise the information or assistance that may prove reasonable and necessary to access data. Rather, once a Magistrate has made an order, it is a question for any enforcement proceeding whether the assistance requested by a constable was reasonable and necessary. He submitted that the primary judge’s conclusion was based on three incorrect premises. First, the primary judge erroneously found that s 3LA(4) did not exhaustively state the matters which must be included in an order: at [121]. His approach in so doing, it was submitted ran contrary to the principle that within a detailed legislative scheme, here one that expressly requires particular matters to be specified, “[a]dditional rights or requirements going beyond those spelt out are not easily to be inferred”, citing Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166 at [24] (Caratti). It was submitted that the same error was made in respect to the primary judge’s acceptance 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”. Second, the primary judge erroneously concluded that the requirement to specify in an order “what may be required” was necessary because “specified persons should be informed with some clarity of what … may be required of them”: at [124]. Third, while his Honour recognised that there was “some force in the submission of … 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”, he did not consider that his construction would have that effect: at [122].

210    The respondent also referred to what he contended were the relevant principles of construction. He submitted the primary judge’s conclusion was correct. He submitted that his construction was supported by text and contextual considerations and that his construction is supported by the principle of legality. The respondent’s submission is based on a number of propositions. First, s 3LA(5) contemplates that an order will specify what information and assistance may be required so that it can be assessed whether the person is capable of complying with the requirement and whether the omission to do so contravenes that order. Second, it would be surprising if the provision left the judgment as to reasonableness to a police officer. Third, s 3LA(1) contemplates that an order will be made in respect of a particular identified computer or data storage device, and s 3LA(2)(c) requires that the Magistrate be satisfied that the person has “relevant knowledge”. Fourth, the requirement in s 3LA(4) that an order specify both the place and the time within which the information or assistance is to be provided is more consistent with an order relating to the provision of particular information or assistance. Fifth, there are no express words in s 3LA suggesting that it, or orders made pursuant to it, are to confer on police officers a broad discretion to request information or assistance. Sixth, the mere fact that the subject matter of the power in s 3LA relates to what is necessary for a constable to do something is not a sufficient basis to infer that it authorises orders which confer a broad power on a constable. Seventh, it is untenable to suggest that a s 3LA order need not “specify” any other matters beyond those listed in s 3LA(4).

Consideration

211    The Commissioner’s submission must be accepted.

212    Although the respondent’s submission is based on the assertion that the Order failed to identify the information or assistance required to be provided, in reality, it is directed to the state of satisfaction of the Magistrate. The submission is based on the premise that the Magistrate must be satisfied that identified information or assistance is reasonable and necessary to access the evidential material. The effect of the submission, as articulated by the respondent in oral submissions is that this satisfaction had to relate to a particular application on the computer or data storage device which contains the evidential material and that satisfaction in respect to accessing the device itself was insufficient. As explained below, the text of the provision, considered in its context and given its purpose, does not support that conclusion.

213    The starting point for ascertaining the meaning of a statutory provision is the text of the statute having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, citing Project Blue Sky at [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ; Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 381 ALR 601 at [14].

214    The respondent called in aid of his submission the principle of legality, contending that its construction of s 3LA should be preferred as it results in orders that are less restrictive of rights, than the construction contended for by the Commissioner. The respondent’s submission was based on an interference with the privilege against self-incrimination. The respondent relied inter alia to North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 at [11] (NAAJA v NT) where French CJ, Kiefel and Bell JJ observed, that “the principle of legality favours a construction, if one be available, which avoids or minimises the statute’s encroachment upon fundamental principles, rights and freedoms at common law”. However, the principle of legality does not operate where Parliament has expressed by clear words or necessary implication, a statutory intention to abrogate or restrict a fundamental freedom or principle: X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 at [24], [119], [125], [158].

215    The principle of legality is a principle of construction directed to the overarching objective of giving the words of a statutory provision the meaning which the legislature is taken to have intended them to have: Lacey v Attorney-General for the State of Queensland [2011] HCA 10; (2011) 242 CLR 573 at [43]. Even if the effect or operation of an order under s 3LA may somehow encroach upon the privilege against self-incrimination, which may be questionable, s 3LA nevertheless manifests the necessary intention to exclude the operation of the principle by unambiguously requiring the provision of assistance and by criminalising non-compliance with the provision. The legislature in doing so has struck the balance between the competing interests of individual rights and the public interest in enforcing compliance with provisions relating to the investigation of crime: see for example: State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 at [96] per Callinan and Crennan JJ; Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 at [68] (Hart); CXXXVIII v Honourable Justice Richard Conway White [2020] FCAFC 75; (2020) 274 FCR 170 at [33]-[34] (CXXXVIII).

216    This was recently recognised by the High Court in Smethurst v Commissioner of Police [2020] HCA 14 in the context of search warrants where the Court observed at [24]-[25] [citations omitted]:

[24] In George v Rockett, the Court observed that in prescribing conditions governing the issue of search warrants the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasion of their privacy. A person’s interest in privacy is recognised in all modern bills of rights and it has achieved a status in international human rights law.

[25] It may be accepted that the balance struck by the legislature to a greater extent favours the public interest in the investigation and prosecution of crimes…

217    The Full Court of the Federal Court in Caratti at [22]-[24] in relation to the construction of statutes authorising the issue of search warrants relevantly observed:

[22] … in construing the statutory requirements for the issue of a search warrant, the Court should be careful to give effect to the legislation by its terms, and not approach its task armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers: Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384 at [68]. Construction of statutes that authorise the search of premises and the seizure of things from them must begin with “the ordinary meaning of the words considered according to their context and the legislative purpose”: Hart at [64].

[23] Importantly, the search and seizure provisions of the Crimes Act are not punitive and are therefore not to be treated as penal provisions for the purposes of statutory construction: Hart at [67]. Rather, it is appropriate to see those provisions as subject to the general principle that, in the absence of unmistakeable and unambiguous language, it is to be presumed that the legislature has not intended to interfere with basic rights, freedoms and immunities: see, e.g., Hart at [67] and the cases there cited. For example, in Coco v The Queen (1994) 179 CLR 427, the High Court considered that, in the absence of a clearly manifested intention to do so, the relevant legislation authorising the issue of a warrant to use a listening device did not also authorise such use where installation of such a device would otherwise constitute a trespass: see, in particular, Coco at 437-8.

[24] For modern search warrant legislation, the same strict compliance with the relevant statutory requirements may generally be seen to apply, but no further. Additional rights or requirements going beyond those spelt out are not easily to be inferred. As was pointed out in Hart at [68], “effect must be given to importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences”, such that a construction giving effect to “operational realities” is to be preferred to “fine legal judgments in the issue and/or execution” of search warrants.

218    Those comments are equally apt to the issue of this order.

219    The primary judge summarised the principles in Hart: at [36]. The primary judge also recorded at [37] that although the respondent accepted that the approach stated in Hart (summarised in the extract from Caratti in [217] above) was appropriate, it was with two qualifications. First, that the statutory provisions in question in this case concerned the powers of a Magistrate, and not a police officer and therefore, matters of “operational realities” need not have the same significance. Second, 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. It is unclear from the reasons what the primary judge made of those submissions. That said, neither proposition affects the validity of the observations made in Hart, referred to above. The principles as to the construction of search warrant provisions have been accepted and applied since 2002. Nothing in Smethurst casts doubt on Hart or the relevant aspects of Caratti. Nor does there appear to be a proper basis to the suggestion that the involvement of a Magistrate in issuing a warrant or making an order reduces the significance of operational realties. Regardless of who issues the warrant or makes an order it must be executed by officers in the context of an ongoing investigation, with all the operational requirements and constraints that brings.

220    While discussing the relevant principles of construction we note also that primary judge observed that an order pursuant to s 3LA has some similarity to a mandatory injunction and, 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: at [35]. Given that the task is one of construction of the statutory provision, in the context of Pt 1AA of the Crimes Act, it is difficult to see the relevance of such an observation. It cannot provide a basis for imposing a condition or requirement on the issue of an order pursuant to s 3LA which is not supported by the text, context and purpose of the provision.

221    All that said, we are unable to accept that the respondent’s construction of s 3LA is reasonably open in the application of ordinary principles of statutory construction. There is no constructional choice which might be said to give rise to the application of principle of legality: NAAJA v NT at [11].

222    Before addressing the arguments advanced it is appropriate to make some general observations about the provision, which is recited in the reasons of Besanko J at [13], and the context in which it appears.

223    Section 3LA is in Pt 1AA of the Crimes Act, which is the statutory scheme in respect to search, information gathering and arrest. It appears in Div 2, which addresses search warrants. Div 2 commences with s 3E, which provides the circumstances in which a search warrant of premises can be issued, noting that the warrant can authorise an ordinary or frisk search of a person who is at, or near, the premises when the warrant is executed. Thereafter the Crimes Act contains a series of provisions which relate to and assist with the execution of that warrant. For example, the activities authorised by each kind of warrant: s 3F, the assistance that can be used to execute the warrant: s 3G, the equipment that can be brought onto the premises to assist in executing the warrant: s 3K, authorisation to operate electronic equipment to access and copy data located during the execution of the warrant: s 3L, and the authority to use electronic equipment to access and copy data from items moved to another place for examination or processing: s 3LAA. That list is not complete, and although those descriptions are necessarily general, for present purposes they sufficiently reflect the nature of the provisions in Div 2. This is the context in which s 3LA sits.

224    It is appropriate to refer to two of those provisions in more detail. Section 3F is directed to “[t]he things that are authorised by a search warrant”, and the version then in force (and now) includes “to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises”: s 3F(1)(c). Section 3L, which is directed to “[u]se of electronic equipment at premises”, at the applicable time relevantly included:

3L    Use of electronic equipment at premises

(1) The executing officer of a warrant in relation to premises, or a constable assisting, may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes evidential material.

Note:    A constable can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 3LA.

(1A) If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may:

(a) copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises; or

(b) if the occupier of the premises agrees in writing — copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device at the premises;

and take the device from the premises.

225    Section 3LA is directed to persons with knowledge of a computer or data storage device or knowledge of measures to protect data held in, or accessible from, the computer or data storage device. It provides for an order from a Magistrate which requires a specified person “to provide any information or assistance that is reasonable and necessary” to allow a constable inter alia, to access data from a computer or data storage device, which is on warrant premises, or moved for an examination or seized pursuant to Div 2 of the Crimes Act: s 3LA(1)(a) and the copying of material and converting it in to documentary or another form intelligible to the constable: s 3LA(1)(b) and (c). The provision provides preconditions, the satisfaction by the Magistrate of which are necessary to issue an order: s 3LA(2). It also addresses what must be included in an order where the computer or data storage device has been removed from the premises: s 3LA(4). The provision makes it an offence not to comply with an order: s 3LA(5).

226    The evident purpose of s 3LA, considered in the context of the statutory scheme, 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. As the primary judge observed it provides police with a means of overcoming impediments to accessing such material created by the use of devices such as password protection and encryption: at [18]. It also provides assistance in enabling the relevant material to be copied or converted into documentary form. An order under s 3LA complements or is an adjunct to a s 3E warrant, and interacts with other provisions in Div 2 of Pt 1AA of the Crimes Act.

227    Against that contextual background a number of further observations can be made.

228    First, as noted above, an order relates to information and assistance not only to access data from a computer or data storage device: s 3LA(1)(a) but also copying material and converting it in to documentary or another form intelligible to the constable: s 3LA(1)(b) and (c). The necessity for copying and conversion of information, and what assistance might be needed would be dependent, at least for the conversion, on the form of the material once accessed. Although the submissions focussed on accessing the information, the construction of the s 3LA order must accommodate all aspects of s 3LA(1).

229    Second, an order pursuant to s 3LA can be sought and obtained before or after the execution of s 3E warrant. The construction of the provision must also accommodate its operation in both scenarios. Where the s 3LA order is sought before the execution of the s 3E warrant, the constable may have some general information or knowledge about the types of computers or data storage devices on the premises. It is, however, unlikely that the constable would have any, or any detailed or specific, information or knowledge of the types of software or applications on the computers or data storage devices which might prevent access to the data, or access to the data in a form which is able to be copied or is intelligible. It is unlikely until the data is accessed for the constable to have any information or knowledge as to whether it requires copying, or is unintelligible. Where the s 3LA order is sought after a warrant has been executed, the constable is likely to have more information and knowledge about the computers or data storage devices and may even, as a result of initial examinations of the computer or data storage device, have some information or knowledge about the protective software or applications on them. Even then, however, there may be additional layers of protective software or applications about which the constable remains unaware.

230    The significance of being able to obtain a s 3LA order before the execution of a s 3E warrant is that it enables a computer or data storage device to be examined at the premises, and a determination made whether it contains evidential material, and if so, whether that material can be copied or whether the computer or data storage device itself is to be seized. This limits the occasion to seize devices for examination. A construction which accommodates the proper operation of this aspect of the s 3LA order promotes and is consistent with the evident purpose of the scheme where the seizure of the electronic device is seen as the option of last resort: see for example s 3L(3) and s 3K(2)(a).

231    Third, the statutory preconditions for the issue of an order are identified in s 3LA(2). The matters on which the Magistrate must be satisfied are that there are reasonable grounds for suspecting evidential material is held in, or accessible from, the computer or data storage device: s 3LA(2)(a), and that the specified person (the breadth of whom is identified), has relevant knowledge of the computer or data storage device, or of the measures applied to access data: s 3LA(2)(b) and (c).

232    Given the respondent’s construction of s 3LA it is appropriate to observe the limits of those preconditions. There is no precondition that the Magistrate be satisfied as to what information or assistance in the particular case will be reasonable and necessary to undertake the tasks in s 3LA(1). The Magistrate is also not required to identify the evidential material on which they base their satisfaction. The s 3LA order is not directed to the particular evidential material, rather it is directed to allowing access to (or copying or converting) data on a computer or data storage device. As noted above, this order is an adjunct to the search warrant in s 3E, and related provisions. That warrant authorises the search and identifies the material that can be seized pursuant to it. The s 3LA order provides information and assistance to enable the constable to execute the s 3E warrant by accessing the computer or data storage device. The constable is then entitled to search the computer or data storage device to determine if there is evidential material within the terms of the warrant. The requirements of the s 3LA order as to evidential material and the content of any order are to be contrasted with those in s 3E and the content of that warrant. It follows that the premise of the respondent’s submission, that the Magistrate must be satisfied of the particular evidentiary material and then be satisfied of what information and assistance is reasonable and necessary to access that material, cannot be accepted.

233    Fourth, the respondent’s submission that the requirement to specify the information and assistance that is reasonable and necessary comes from the condition in s 3LA(2)(c) that the specified person has relevant knowledge of the computer or data storage device, or measures applied to protect data held in, or accessible from, the computer or data storage device, cannot be accepted. The level of detail contended for by the respondent is not borne out by the text of the provision. The provision does not state that such satisfaction is required. Moreover, a Magistrate can plainly be satisfied that a person has such knowledge without the Magistrate knowing what those measures are or the details thereof.

234    Fifth, significant to the respondent’s submission, and the primary judge’s reasoning is the conclusion the s 3LA(4) is not exhaustive. It is necessary to recall that this provision only applies when the computer or data storage device is not on the warrant premises. In that context it provides that an order must specify the period in which the person must provide the information or assistance, the place at which the person must do so, and any conditions determined by the Magistrate to which the requirement on the person to provide the information or assistance is subject. These requirements are directed to the logistics of how, when and where the information and assistance is to be provided, matters which have application in relation to the circumstance of the computer or data storage device being off the premises. In that context, it may be accepted that s 3LA(4) is not exhaustive. For example, obviously the specified person must also be named in an order. That said, there is nothing in that provision which could provide a basis for implying a requirement to identify the assistance and information required to be provided. As explained above, that is to impose a statutory precondition to the issue of an order which is not provided for in the provision. Moreover, s 3LA(4) only has limited application, as it does not apply when the computer or data storage device is on the warrant premises.

235    Sixth, that it is an offence to fail to comply with an order does not provide a basis for reading in the requirement contended for by the respondent. Such a provision is not unusual in schemes where the legislature has struck the balance between the competing interests of individual rights and the public interest in enforcing compliance with provisions relating to the investigation of crime: see for example, CXXXVIII at [33]-[34]. If the specified person fails to comply with the s 3LA order it will be for the court in which the specified person is prosecuted to determine whether, as a matter of fact, the person has failed to provide the assistance which was reasonable and necessary to access data. In those circumstances, that court will determine, as a question of fact, whether the assistance requested was reasonable and necessary. It is not unusual that the question of criminal liability turns on the issue of reasonableness: see for example, ss 3UC(3), 3ZL(3), 3ZQM(6) of the Crimes Act. If the person refuses to comply with an order it will be for the Court to determine if an offence has been committed.

236    As is apparent from the above discussion there is no requirement in the text of the provision that the Magistrate be satisfied of, and specify the particular information or assistance that the Magistrate considers reasonable and necessary. Nor, given a proper reading of the text, in context and given its purpose, is such a precondition to be implied. As stated by the Full Court in Caratti, having referred to “[a]dditional rights or requirements going beyond those spelt out are not easily to be inferred”: Caratti at [24].

237    Determining what information or assistance is reasonable and necessary is informed by all the text in s 3LA(1) to which it is directed, in the context of the warrant which will be, is being, or has been executed. Contrary to the respondent’s contention, there is nothing unusual about the constable, while executing the warrant, being the person who must, in the first instance, determine what information or assistance is reasonable and necessary. Legislative regimes, including the Crimes Act, not infrequently empower police officers to take certain actions that they consider to be reasonable or necessary in pursuance of, or subsequent to, the making of an administrative order: see for example ss 3F(1)(d)-(f) and (2)(c)-(d), 3G, 3ZC(1), 3ZH(2)(b), 3ZJ(3)(b)-(c) and (4) of the Crimes Act. It is a feature of other provisions in this legislative scheme in relation to the execution of a s 3E warrant. This reflects the operational realities under which the investigation is occurring and the warrant is being executed.

238    As the Commissioner correctly contended, where a s 3LA order is obtained before a warrant is executed, a constable or Magistrate is unlikely to be able to be satisfied of the layers of password protection or encryption or other protections of the devices that may be found so as to be able to anticipate the assistance required to access the computer or data storage device, even at the level of generality suggested by the primary judge at [122] recited above at [207]. This must be even more so as to whether there will be a need to have information and assistance to copy or convert material into an intelligible form. The imposition of the requirement imposed by the primary judge also fails to reflect the operational realities, referred to in Caratti and Hart referred to above at [217].

239    With respect, we consider that the means suggested by the primary judge to overcome that difficulty by drafting an order in terms of generality do not assist. The examples given, which were given as alternatives, are at a level of generality so as to not meaningfully add to the words of the text of s 3LA. Rather, they reflect the breadth of available options that might be anticipated as being necessary to access the computer or data storage device. They are matters readily understood as typically being necessary to access such devices. That those types of information and assistance may be required is self-evident.

240    The very specification of such matters however, would result in the circumstance where if something not anticipated as being required (perhaps because of the nature of encryption software), a new order would need to be obtained. There is no basis for reading such a requirement into the legislative scheme.

241    The respondent’s submission as to the need for more specificity is based on the premise that the specified person needs to be in a position to assess whether the request is reasonable and necessary. However, underpinning that submission is that the assessment is whether the access to the application on the device is reasonable and necessary. For example, it was submitted that “[i]f Mr Luppino is asked by the constable to provide the PIN or password for the banking app, Mr Luppino has to make an assessment of whether that’s reasonable and necessary to require him to do that…”. As explained above at [228]-[236], that misunderstands the nature of a s 3LA order. The s 3E warrant authorises the search of the computer or data storage device to determine if there is evidential material on the device. If an order is made under s 3LA the Magistrate has been satisfied that there are reasonable grounds for suspecting that there is evidential material on the device: s 3LA(2)(a). It is then for the constable to determine what assistance is reasonable and necessary to search the computer or data storage device. Consideration of whether it is reasonable and necessary is directed to the means by which data on the computer or data storage device may be accessed, copied or converted into an intelligible form, not whether, in the view of the specified person, the constable should be entitled to access the data. To be clear, it is the information and assistance that is requested which must be reasonable and necessary to access, copy or convert the data. The relevant issue is not whether the access to, or the copying or converting of, the data was reasonable and necessary.

242    The text, considered in its context and given its purpose does not support the construction adopted by the primary judge. The Commissioner has established that the primary judge erred in this regard. It follows that the Commissioner has established that the primary judge erred in concluding the Order was invalid because it did not identify the particular information or assistance required to be provided by the respondent.

243    It follows from the reasons above that Ground 2 is established and the appeal must be allowed.

Ground 4: Identifying the computer or data storage device

244    The submissions advanced are summarised by Besanko J, and it is unnecessary to repeat them.

245    As explained above, an order under s 3LA complements or is an adjunct to a s 3E warrant, and interacts with other powers in Div 2 of Pt 1AA of the Crimes Act. Section 3E(1) permits an issuing officer to issue a search warrant if satisfied of the existence of “reasonable grounds for suspecting” that evidential material is, or will be, located at particular premises. A search warrant may be issued in circumstances where it is not known what will be found. In that context it is s 3L, which is recited at [224], which envisages that electronic equipment found in the course of a search may be operated to access data. As the Commissioner correctly submitted, it would be inconsistent with that context to interpret s 3LA so as to require a significantly greater degree of foreknowledge than the provisions it facilitates.

246    As Besanko J concluded the use of the definite article in s 3LA(2), (3) and (4) does not support the conclusion that s 3LA contemplates an order being made in respect of a particular computer or data storage device (or particular computers or data storage devices). The Commissioner correctly contended, those references to “the computer or data storage device” are most naturally read as a reference to each device that falls within s 3LA(1)(a)(i), (ii) or (iii). This construction is consistent with the text, considered in its context and given its purpose which is explained above. In particular, s 3LA must be construed so as to encompass both the circumstance of being issued before and after the execution of the warrant. It may be accepted in that context that it may often be reasonable to suspect, in advance of a search of a premises, that desktop or laptop computers and smartphones will be found in the course of such a search, and that one or more will contain evidence falling within the scope of the warrant. It is possible in advance of the execution of the search warrant for the inferences to be drawn at a sufficient level to permit the making of a 3LA order in respect of any computer or data storage device found at the premises. Whether that is so would depend on the factual context.

247    As a consequence, the Magistrate in issuing a s 3LA order does not need to be satisfied of the existence of a particular computer or data storage device. There is no basis in the text of s 3LA to infer a requirement to identify a particular computer or data storage device in an order under s 3LA(4). It follows from that an order under s 3LA(4) need not identify a particular computer or data storage device. Such an order need only identify the computer or data storage device as being one that falls within s 3LA(1)(a)(i)(ii) or (iii). For example, here it was sufficient to identify the relevant computers or data storage devices in terms of s 3LA(1)(a)(iii), computers or data storage devices that had been seized pursuant to the s 3E warrant.

248    We agree with Besanko J, that even if the Order should have specified the particular computer that does not invalidate the Order, in circumstances where the respondent plainly knew that the information requested was in relation to the gold Samsung telephone. As explained by Besanko J in ground 5, that device is a computer or data storage device within s 3LA(1)(a)(iii).

249    It follows that Ground 4 is established.

Associate:

Dated:    25 March 2021