THE KING v TB [2024] SASCA 82

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE KIMBER) SCCRM-21-460 QUESTION OF LAW NO. 1 Appellant: THE KING Counsel: MR M HINTON KC WITH MS A CAIRNEY AND MS E MACGREGOR - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) First Respondent: TB Counsel: MR D O’LEARY SC - Solicitor: CRAIG CALDICOTT LAWYERS Second Respondent: CD Counsel: MR D O’LEARY SC - Solicitor: ILES SELLEY LAWYERS Interested Party: ATTORNEY-GENERAL OF THE COMMONWEALTH Counsel: MR T BEGBIE KC WITH MR T GLOVER AND MR B LIM WITH MR J WHERRETT - Solicitor: AUSTRALIAN GOVERNMENT SOLICITOR QUESTION OF LAW NO. 2 First Appellant: CD Counsel: MR D O’LEARY SC - Solicitor: ILES SELLEY LAWYERS Second Appellant: TB Counsel: MR D O’LEARY SC - Solicitor: CRAIG CALDICOTT LAWYERS Respondent: THE KING Counsel: MR M HINTON KC WITH MS A CAIRNEY AND MS E MACGREGOR - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Interested Party: ATTORNEY-GENERAL OF THE COMMONWEALTH Counsel: MR T BEGBIE KC WITH MR T GLOVER AND MR B LIM WITH MR J WHERRETT - Solicitor: AUSTRALIAN GOVERNMENT SOLICITOR Hearing Date/s: 16/11/2023, 17/11/2023, 12/04/2024 File No/s: SCCRM-23-040021; SCCRM-23-040127 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. QUESTIONS OF LAW RESERVED (NOS. 1 AND 2 OF 2023) [2024] SASCA 82 Judgment of the Court of Appeal (The Honourable Acting Chief Justice Livesey, the Honourable Justice Doyle and the Honourable Justice David) 27 June 2024 COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - INTERCEPTION AND PROHIBITION THEREOF COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - WARRANTS AND AUTHORISATIONS COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - LISTENING DEVICES AND SURVEILLANCE DEVICES The defendants (TB and CD) are jointly charged with participating in a criminal organisation contrary to s 83E(1) of the Criminal Law Consolidation Act 1935 (SA) (Count 1) and various firearms offences contrary to the Firearms Act 2015 (SA) (Counts 2-5 and 8-15). -- 1 of 97 -- Six questions of law were reserved for the Court of Appeal’s determination pursuant to ss 153 and 154 of the Criminal Procedure Act 1921 (SA). Broadly speaking, the questions relate to the admissibility of evidence obtained by the Australian Federal Police (‘AFP’) of communications made through the use of an encrypted communications application called ‘AN0M’ that had been installed on a number of mobile devices. The prosecution seeks to rely upon the evidence of these communications in criminal proceedings against the defendants. Questions 1 and 2 require consideration of whether the AFP’s conduct in obtaining evidence of the AN0M communications involved an interception of communications passing over a telecommunications system contrary to s 7(1) of the Telecommunications (Interception and Access) Act 1979 (Cth) (‘the TIA Act’), with the result that the evidence is inadmissible. Question 3 requires consideration of whether two major controlled operation authorisations (‘MCO No 1’ and ‘MCO No 2’), which were obtained under Part IAB of the Crimes Act 1914 (Cth), and covered the AFP’s activities in relation to the AN0M application, were invalid by reason that they were predicated upon a misconstruction of the applicable statutory requirements in ss 15GI and 15GK of that Act. Questions 4, 5 and 6 require consideration of whether certain of the offences with which the defendants have been charged are State offences having a federal aspect within the meaning of ss 4AA(1)(a), (c) and/or (d) of the Australian Federal Police Act 1979 (Cth) (‘the AFP Act’), thus excepting evidence of the communications made using the AN0M application from the general inadmissibility of protected information under s 45(3) of the Surveillance Devices Act 2004 (Cth). Held, per the Court (Livesey A/CJ, Doyle and David JJA): 1. The use of the AN0M application and platform did not involve an interception of the AN0M communications in contravention of s 7(1) of the TIA Act. 2. The challenges to the validity of the authorisations referred to as MCO No 1 and MCO No 2 have not been made out. 3. An investigation by the AFP of the State offences the subject of Counts 1-3 and 8-14 would have been incidental to the AFP’s existing investigation of Commonwealth offences, with the result that those offences are State offences having a federal aspect under s 4AA(1)(d) of the AFP Act. 4. The questions reserved, as set out at [379], should be answered as follows: Question 1: No. Question 2: Does not arise. Question 3.1: No. Question 3.2: No. Question 4: Not necessary to answer. Question 5: Not necessary to answer. Question 6: Yes. Acts Interpretation Act 1901 (Cth) ss 2C, 15AA; Australian Federal Police Act 1979 (Cth) ss 4AA(1)(a), 4AA(1)(c), 4AA(1)(d), 4AA(2), 4AA(3), 4AA(3)(e), 4AA(3)(i), 4AA(5), 8(1)(baa); Australian Constitution ss 51(v), 51(xxix), 51(xxxix); Crimes Act 1914 (Cth) ss 3E, 15GA, 15GD, 15GH, 15HZ, 15GI, 15GK, 15GQ, 15GV; Criminal Code Act 1995 (Cth) ss 4.1(2), 11.5(1), 302.2, 307.1, 390.4, 390.6(2), 400.4, 474.14(1); Criminal Law Consolidation Act 1935 (SA) ss 83E(1), 83G, 83E; Criminal Procedure Act 1921 (SA) ss 153, 154; Crown Proceedings Act 1992 (SA) ss 9(2), 9(5); Firearms Act 2015 (SA) ss 9(1), 9(7), 29(5)(b), 31(1), 31(12), 39(1); Joint Criminal Rules 2022 (SA); Judiciary Act 1903 (Cth) s 78A; Mutual Assistance in Criminal Matters Act 1987 (Cth); -- 2 of 97 -- Surveillance Devices Act 2004 (Cth) ss 6, 7, 44, 45(1), 45(2), 45(3), 45(4), 45(5), 45(5)(c), 45(9)(a), 65B; Telecommunications (Interception) Act 1979 (Cth); Telecommunications (Interception) Amendment Act 2006 (Cth); Telecommunications (Interception and Access) Act 1979 (Cth) ss 5(1), 5F(a), 5F(b), 5G, 5H, 6(1), 7(1), 63, referred to. Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54; Airservices Australia v Canadian Airlines (2000) 202 CLR 133; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Attorney-General (Cth) v Huynh (2023) 97 ALJR 298; Attorney- General v Reynolds [1980] AC 637; Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 125 FCR 529; Australian Steamships Ltd v Malcolm (1914) 19 CLR 298; Boensch v Pascoe (2019) 268 CLR 593; Bradley v Commonwealth (1973) 128 CLR 557; British Medical Association v Commonwealth (1949) 79 CLR 201; Burns v Corbett (2018) 265 CLR 304; Burton v Honan (1952) 86 CLR 169; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; CMU16 v Minister for Immigration and Border Protection (2020) 277 FCR 201; Commonwealth v Tasmania (1983) 158 CLR 1; Davis v Commonwealth (1988) 166 CLR 79; Deputy Commissioner of Taxation v Dick (2007) 226 FLR 388; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) (2021) 106 NSWLR 41; Edelsten v Investigating Committee of NSW (1986) 7 NSWLR 222; Ellison v Sandini Pty Ltd (2018) 263 FCR 460; Furnari v Ziegert [2016] FCA 1080; Garth v The Queen (2016) 261 A Crim R 583; George v Rockett (1990) 170 CLR 104; Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55; Green v The Queen (1996) 124 FLR 423; Gulic v Boral Transport Ltd [2016] NSWCA 269; Holdsworth v Commissioner of Police, New South Wales Police Force [2020] NSWSC 228; Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49; Jones v Commonwealth (2023) 97 ALJR 936; Lambert v Weichelt (1954) 28 ALJ 282; Le Mesurier v Connor (1929) 42 CLR 481; Lesi v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 27; LibertyWorks Inc v Commonwealth (2021) 274 CLR 1; Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203; Massoud v Nationwide News Pty Ltd (2022) 109 NSWLR 468; McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; Mineralogy Pty Ltd v Western Australia (2021) 274 CLR 219; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Morad v El-Ashey [2017] FCA 1136; Mulholland v Australian Electoral Commission (2004) 220 CLR 181; Muller v Dalgety & Co Ltd (1909) 9 CLR 693; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631; Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Nature’s Care Manufacture Pty Ltd v Australian Made Campaign Ltd (2018) 363 ALR 717; Newcastle Airport Pty Ltd v Chief Commissioner of State Revenue (2014) 99 ATR 748; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Proudfoot v Director of Public Prosecutions (Vic) (2020) 283 A Crim R 332; Re Wakim; Ex parte McNally (1999) 198 CLR 511; Richardson v Forestry Commission (1988) 164 CLR 261; R v A, B, D & C [2021] 2 WLR 1301; R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; R v East (2003) 13 NTLR 91; 189 FLR 118; R v Edelsten (1990) 21 NSWLR 542; R v Ellis (2001) 162 FLR 423; R v Giaccio (1997) 68 SASR 484; R v Hughes (2000) 202 CLR 535; R v Metcalfe (2018) 338 FLR 357; R v TB (No 1) [2023] SASC 45; R v TB (No 3) [2023] SASC 61; R v TB (No 5) [2023] SASC 118; R v TB (No 6) [2023] SASC 140; Saravinovski v Saravinovska [2017] NSWCA 85; Sarkis v Morrison [2013] NSWCA 281; S v Australian Crime Commission (2006) 149 FCR 361; Spence v Queensland (2019) 268 CLR 355; Stemp v Australian Glass Manufacturers Co Ltd (1917) 23 CLR 226; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Tabet v Gett (2010) 240 CLR 537; Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285; Thomas v Mowbray (2007) 233 CLR 307; Tjungarrayi v Western Australia (2019) 269 CLR 150; T v Medical Board (SA) (1992) 58 SASR 382; Victoria v Commonwealth (1975) 134 CLR 338; Victoria v Commonwealth (1996) 187 CLR 416; Violi v Berrivale Orchards Ltd (2000) 99 FCR 580; Voxson Pty Ltd v Telstra Corporation Limited (No 10) [2018] FCA 376; Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; XCIV v Australian Crime Commission (2015) 234 FCR 274; Zhang v Commissioner of the Australian Federal Police (2021) 273 CLR 216, considered. -- 3 of 97 -- -- 4 of 97 -- QUESTIONS OF LAW RESERVED (NOS. 1 AND 2 OF 2023) [2024] SASCA 82 Court of Appeal – Criminal: Livesey A/CJ, Doyle and David JJA 1 THE COURT: These reasons concern six questions of law reserved for this Court’s determination pursuant to ss 153 and 154 of the Criminal Procedure Act 1921 (SA). Broadly speaking, the questions relate to the admissibility of evidence obtained by the Australian Federal Police (AFP) of communications made through the use of an encrypted communications application called ‘AN0M’ that had been installed on a number of mobile devices. The prosecution seeks to rely upon the evidence of these communications in criminal proceedings against the defendants. 2 The first three questions, which arise from two decisions of the primary judge dismissing interlocutory applications filed by the defendants, were reserved on 25 September 2023. Questions 1 and 2 require consideration of whether the AFP’s conduct in obtaining evidence of the AN0M communications involved an interception of communications passing over a telecommunications system contrary to s 7(1) of the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act), with the result that the evidence is inadmissible. Question 3 requires consideration of whether two major controlled operation (MCO) authorisations, which were obtained under Part IAB of the Crimes Act 1914 (Cth), and covered the AFP’s activities in relation to the AN0M application, were invalid by reason that they were predicated upon a misconstruction of the applicable statutory requirements in ss 15GI and 15GK of that Act. 3 The next three questions, which arise from a decision of the primary judge dismissing a third interlocutory application filed by the defendants, were reserved on 20 October 2023. Questions 4, 5 and 6 require determination of whether certain of the offences with which the defendants have been charged are State offences having a federal aspect within the meaning of ss 4AA(1)(a), (c) and/or (d) of the Australian Federal Police Act 1979 (Cth) (AFP Act), thus excepting evidence of the communications made using the AN0M application from the general inadmissibility of “protected information” under s 45(3) of the Surveillance Devices Act 2004 (Cth) (SD Act). 4 The Attorney-General of the Commonwealth has intervened pursuant to s 78A of the Judiciary Act 1903 (Cth), and ss 9(2) and (5) of the Crown Proceedings Act 1992 (SA). The Commonwealth directed its submissions primarily to the issues arising in respect of Questions 4, 5 and 6, although it also made some submissions in relation to Questions 1, 2 and 3. Broadly speaking, the Commonwealth’s submissions were consistent with those advanced by the prosecution. 5 These reasons are organised as follows: -- 5 of 97 -- [2024] SASCA 82 The Court 2 PART A: BACKGROUND ....................................................................................................... [6] Genesis of the AN0M platform ............................................................................................. [12] Overview of the AN0M platform.......................................................................................... [21] The defendants’ AN0M communications ............................................................................. [25] Applications to exclude evidence of the AN0M communications ....................................... [47] PART B: INTERCEPTION OF A COMMUNICATION UNDER THE TIA ACT ............... [50] The evidence before the primary judge................................................................................. [53] AOS and the AN0M application ........................................................................................ [61] Unlocking, authentication and connection ....................................................................... [68] Preparing and sending messages...................................................................................... [71] The iBot server .................................................................................................................. [88] Modern application-based communications systems ........................................................ [96] The TIA Act ........................................................................................................................ [119] The provisions of Chapter 2 ............................................................................................ [125] Construing the TIA Act ................................................................................................... [140] The parties’ contentions ...................................................................................................... [156] Alleged interception upon creation of the copy message ................................................... [160] The primary judge’s reasons........................................................................................... [162] Analysis ........................................................................................................................... [170] Alleged interception through the iBot server’s listening activity ....................................... [217] Alleged interception of the communications received by the iBot server .......................... [223] Conclusion .......................................................................................................................... [240] PART C: VALIDITY OF THE MCO AUTHORISATIONS ................................................ [242] The authorisation of MCOs under the Crimes Act ............................................................. [249] The defendants’ challenge to the validity of the MCO authorisations ............................... [261] The primary judge’s reasons ............................................................................................... [265] Analysis ............................................................................................................................... [272] PART D: STATE OFFENCES HAVING A FEDERAL ASPECT ...................................... [280] Legislative framework ........................................................................................................ [290] The parties’ arguments ........................................................................................................ [299] The primary judge’s reasons ............................................................................................... [309] Section 4AA(1)(d) – incidental to investigation of Commonwealth offences.................. [310] Section 4AA(1)(c) – involved electronic communications .............................................. [319] Section 4AA(1)(a) – would have been valid laws of the Commonwealth ....................... [327] Incidental to the investigation of Commonwealth offences................................................ [337] A prudential approach ......................................................................................................... [371] PART E: CONCLUSION ...................................................................................................... [379] -- 6 of 97 -- [2024] SASCA 82 The Court 3 PART A: BACKGROUND 6 By ex officio information dated 17 November 2021, the defendants (TB and CD) were jointly charged with participating in a criminal organisation contrary to s 83E(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) (Count 1), and with various firearms offences contrary to the Firearms Act 2015 (SA) (Counts 2-5 and 8-15). 7 The prosecution alleges that the defendants were senior members of the Comancheros Motorcycle Club, a criminal organisation. On the prosecution case, a white Holden utility containing firearms and drugs was stored by the defendants for its safekeeping at the house of Rohan Wakefield, who was a worker or driver for the Comancheros. It is alleged that the utility, which was used by the Comancheros for its unlawful purposes, was stored at Mr Wakefield’s house for a number of months at the direction of senior members of the Comancheros, including the defendants. The defendants had control over access to the utility and its contents while it was stored at Mr Wakefield’s house, and directed the disposal or concealment of the firearms and drugs upon police attendance at Mr Wakefield’s house on 12 January 2020. 8 The particulars of the Count 1 offence are that the defendants supported the criminal organisation known as the Comancheros by storing and controlling access to the utility containing firearms and drugs, knowing or being reckless as to whether their participation contributed to the occurrence of any criminal activity. The firearms offences the subject of Counts 2-5 and 8-15 are all related to the possession of firearms1 or other prohibited items (ammunition2 and a sound moderator3) located in the utility. Counts 6 and 7 do not concern the defendants; they relate only to Mr Wakefield, who has already pleaded guilty to, and been sentenced for, the offending alleged against him. 9 The prosecution also seeks a declaration under s 83G of the CLCA that the Comancheros is a criminal organisation for the purposes of s 83E. 10 A central plank of the evidence to be led in respect of all Counts, and in support of the declaration under s 83G of the CLCA, is evidence in the form of electronic data relating to communications between the defendants, Mr Wakefield and other members or associates of the Comancheros. These communications are generally in the form of text messages alleged to have been written or received by the defendants using mobile devices which were enabled with a software application known as the AN0M application. The AN0M application was an encrypted communications application which was installed on mobile devices programmed and enabled for that purpose. It not only permitted communications 1 Contrary to s 9(1) of the Firearms Act (possession of a firearm without a licence) (Counts 2, 3 and 12), s 9(7) of the Firearms Act (aggravated possession of a firearm without a licence) (Counts 8, 9, 10 and 14) and s 29(5)(b) of the Firearms Act (possession of a firearm without an identifying mark) (Counts 11 and 13). 2 Contrary to ss 31(1) and (12) of the Firearms Act (Counts 5 and 15). 3 Contrary to s 39(1) of the Firearms Act (Count 4). -- 7 of 97 -- [2024] SASCA 82 The Court 4 between users of the AN0M application, but also copied those communications without the users’ knowledge. The AN0M system then operated to ensure that copies of the users’ communications were ultimately transmitted to servers at the Google data centre in Sydney, and able to be accessed by the AFP. Evidence of the AN0M communications was able to be retrieved by the AFP from these servers, pursuant to various surveillance device warrants and computer access warrants issued under the SD Act. It is this evidence which is the subject of the applications made to the primary judge and the questions reserved for this Court’s determination. 11 A second set of data relating to AN0M communications was obtained pursuant to warrants under s 3E of the Crimes Act from the same servers. A third set of data relating to AN0M communications was obtained pursuant to a request under the Mutual Assistance in Criminal Matters Act 1987 (Cth) from the Government of the United States of America. These second and third sets of data are not the subject of the present challenges to admissibility.4 Genesis of the AN0M platform 12 The genesis of the AN0M application and system (together, the AN0M platform) was a joint operation between the Organised Crime section of the AFP and the United States Federal Bureau of Investigations (FBI), referred to as Operation Safecracking. Operation Safecracking was aimed at an encrypted communications platform provider known as Phantom Secure. Phantom Secure was a Canadian company which provided end-to-end encryption devices to the organised crime market. 13 As a result of action taken in about March 2018 to shut down Phantom Secure and arrest its owner, the AFP became aware of another encrypted communications application and platform, called AN0M. It was being developed by a person associated with Phantom Secure, referred to in these proceedings as the confidential human source (CHS). The AFP and FBI considered that this presented an opportunity for them to obtain evidence of communications between users of the AN0M platform. They sought to establish whether a capability could be built into the AN0M application to enable this to occur. 14 The initial stages of the operation, which became known as Operation Ironside, were led by Detective Superintendent Mansfield. In his evidence before the primary judge, he explained that the capability sought by the AFP was developed in liaison with the CHS, and with the assistance of a person within the AFP referred to in these proceedings as covert identity number 325 (CIN325). CIN325 was a special member of the AFP, and gave evidence before the primary judge. 15 CIN325 worked closely with the CHS, and other software developers working with the CHS, throughout the period from about April 2018 to June 2021. 4 R v TB (No 6) [2023] SASC 140 at [4]-[5]. -- 8 of 97 -- [2024] SASCA 82 The Court 5 CIN325’s role was, among other things, to ensure that the AFP’s desire to obtain copies of communications was built into the functionality of the AN0M application. After a number of months’ work, the AN0M application was successfully developed to achieve the requirements of the AFP. 16 The AFP’s conduct in relation to the AN0M platform formed part of a covert operation conducted pursuant to two MCO authorisations within the meaning of s 15GD of the Crimes Act. The first MCO was authorised by Deputy Commissioner Gaughan of the AFP on 25 September 2018. A second MCO was authorised by Deputy Commissioner McCartney of the AFP on 25 September 2020. The validity of the two MCO authorisations is the subject of Question 3 in these proceedings. 17 The purpose of the MCO authorisations included enabling the AFP to facilitate the distribution of AN0M-enabled mobile devices, in circumstances where it was anticipated that they would be used by people engaged in criminal activities. AN0M-enabled devices were distributed in Australia from October 2018. CIN325 provided them to a number of people identified by the CHS in various locations throughout Australia. The AN0M application was first enabled for use in October 2018, and remained in use until the resolution of Operation Ironside in June 2021. 18 The devices which were enabled and distributed were mobile phones utilising the Android operating system (AOS). The usual features of a phone – such as the ability to make standard telephone calls, send standard messages and access the internet via standard applications – were disabled on these devices. 19 The mobile devices were readied for the installation of the AN0M application by the end user installing Mobile Data Management (MDM) software. This software enabled the AN0M application to be administered and managed by a system administrator. The CHS maintained the AN0M application and managed its use via the MDM software. The CHS was, in effect, the system administrator. 20 Having installed the software for the AN0M application on their mobile devices, users were able to send encrypted communications to other users of the AN0M application. Only users with a device enabled in this way could communicate on the AN0M platform. Overview of the AN0M platform 21 By way of overview, the AN0M platform operated so that, unbeknown to the users of the AN0M application, and without their consent, communications sent from AN0M-enabled devices were copied and sent to the servers able to be accessed by the AFP. 22 More particularly, the AN0M application installed on the AN0M-enabled devices operated so that when a user (User A) composed a message (or attached a photo or voice memo) in the AN0M application, and pressed the ‘send’ icon, or -- 9 of 97 -- [2024] SASCA 82 The Court 6 activated the ‘trigger’, for the message to be transmitted to the recipient user (User B), a separate second message was created in the AN0M application. The second message included a copy of the message from User A to User B, as well as some additional data retrieved from User A’s device for law enforcement purposes.5 23 Both messages were then encrypted and sent as separate messages over the telecommunications system via a server using the Extensible Messaging and Presence Protocol (XMPP). As User A intended, the first message would be sent, via an XMPP server, to User B. However, without the knowledge of Users A or B, the second message (a copy of the first message with the additional data) would be sent, via an XMPP server, to a server with the username ‘[email protected]’ (the iBot server). 24 The messages received by the iBot server were then re-transmitted to the servers in Sydney that were able to be accessed by the AFP. The AFP obtained these messages using retrieval software, pursuant to the surveillance device warrants and computer access warrants mentioned earlier. The defendants’ AN0M communications 25 We have earlier mentioned the offences alleged against the defendants. It is convenient at this point to provide some context for the allegations made, and the AN0M communications sought to be relied upon by the prosecution. The following is based upon the primary judge’s summary of the prosecution case.6 26 On 12 January 2020, South Australian police officers attended the home of Mr Wakefield in Newton. Police told Mr Wakefield they had uncovered a clandestine laboratory in New South Wales. On the prosecution case, CD and TB knew of, and were involved in, that laboratory. The police then left. 27 On the prosecution case, that visit by police to the home of Mr Wakefield was the catalyst for a number of communications using the AN0M platform between Mr Wakefield, CD and TB, who realised the precautions they had taken to hide their criminal activities from law enforcement had failed. On the prosecution case, these men also considered that the police might return to search Mr Wakefield’s home. 28 These concerns proved to be well founded. Later that day, police attended Mr Wakefield’s home again, this time to conduct a search. During this search, they found the firearms and other prohibited items which are the subject of the offences with which CD and TB are charged. Within the utility, police located a 5 Such as username, a unique message ID, the International Mobile Equipment Identity (IMEI) attached to the telecommunications device, the Mobile Country Code (if the device was using a SIM card), location data (from about April 2020), audio pitch adjustment, and quoted or forwarded messages. 6 R v TB (No 3) [2023] SASC 61 at [7]-[8]. -- 10 of 97 -- [2024] SASCA 82 The Court 7 handgun, a shotgun, a sound moderator and a large amount of ammunition. CD and TB are charged with offences relating to each of these items. 29 The utility was taken to a police compound to allow them to conduct a more thorough search. When that search was conducted the following day, two hidden compartments were found in the wall separating the cabin from the tray – one behind the driver’s seat and one behind the passenger’s seat. On the prosecution case, both compartments had been custom built into the utility to allow the driver to transport firearms and drugs for the Comancheros. Within the hidden compartment behind the driver’s seat, police located further items the subject of charges with respect to both defendants. In particular, they located two further handguns, two rifles and a revolver. 30 On the prosecution case, Mr Wakefield had been storing the utility, and the firearms it contained, at the behest of CD and TB and for the Comancheros. The defendants were aware of the firearms concealed in the hidden compartment, but Mr Wakefield was not. 31 Mr Wakefield was arrested on 12 January 2020. He was granted bail a few days later. Following his release, Mr Wakefield continued to use his AN0M- enabled device. Some of these communications were with CD and TB. 32 CD and TB were arrested in June 2021. 33 As the primary judge explained, the prosecution has not yet identified with precision the AN0M communications which it will seek to lead in evidence. The applications before his Honour proceeded on the basis that this was not necessary given the nature of the admissibility challenges raised by the defendants. It was sufficient for his Honour to observe that there were communications in which CD and TB were participants which commenced from 6 January 2020 and continued beyond when the first items were located, and Mr Wakefield was arrested, on 12 January 2020. 34 A bundle of the AN0M communications relied upon by the prosecution was tendered on the applications before the primary judge.7 A schedule of some of the more significant communications was annexed to the prosecution’s submissions before this Court. 35 It is not necessary for present purposes to do more than identify the nature of some of the communications in the prosecution schedule. They are said to be probative of the relationship between the defendants and Mr Wakefield, of the defendants’ knowledge of the clandestine laboratory in New South Wales and the location and contents of the utility, of the defendants’ control over the utility and its contents, and of the connection between the defendants, the utility and the criminal activities of the Comancheros. 7 Exhibit VD P1. -- 11 of 97 -- [2024] SASCA 82 The Court 8 36 The communications in the schedule commenced with several messages from Mr Wakefield to TB at 10.12 am on 12 January 2020, around the time the police first attended Mr Wakefield’s house. In the first two of the messages, Mr Wakefield said “Cops just came here saying slugs lab got taken out” and “They want me to go and listen to them”. On the prosecution case, these messages involved reference to the clandestine laboratory that police had uncovered in New South Wales. 37 TB almost immediately sent a text message to CD, informing him that the police had been in contact with Mr Wakefield (whom he referred to as the “adel worker”), adding “Fuck fuck fuck”. The text messages exchanged over the next few minutes between TB and CD made reference to their concerns about the utility being at Mr Wakefield’s place, what the police might have found or been told, and the need to move the utility. In one of the messages, CD referred to Mr Wakefield as the “driver”, and in another TB referred to the utility having “guns in it”. In response to messages at 10.28 am from TB to CD in which he referred to the utility as “full of guns”, CD responded “Man where could we take them”. TB and CD then exchanged several further messages in which they discussed the utility with the guns in it, and that “We can’t go get it now”. 38 At 11.17 am, Mr Wakefield sent a message to TB, apparently after the police had left, saying that he told the police that he was not saying anything without a lawyer. TB responded by saying “You will prob get raided”, and Mr Wakefield replied “This ute can’t be here then???!!!” TB and Mr Wakefield exchanged further messages in which they discussed doing what was necessary to get rid of certain things (referring in particular to the “ii”). TB told Mr Wakefield to “Do what you have to man”, “Be very careful”, “They must be watching you and making things up to scare you”. They discussed burying the guns that were in the utility, although TB said that “I don’t think I’d be able to bury them here”. 39 At 11.20 am CD sent a message to TB in relation to moving the utility (“Dude now we need rego plates for that Ute and move around corner and put dif plates we need buy plates and drive car nsw or any where”). TB asked Mr Wakefield whether he could “get to the stuff in car?”, and to “look down street to see if any cars parked down road with someone sitting in it”. 40 TB and CD discussed getting the guns out and burying them, and after Mr Wakefield said that the police had driven off and there were no other cars around, TB instructed him to “Vac wrap them a few times and [bury] very deep”, adding that he might have cameras watching him. Mr Wakefield responded “Alright. I’ll see what I can do. Gonna get rid of the ii and shit first”. TB responded “Yep flush it”. 41 In a further exchange of messages commencing at 11.25 am, TB told CD that he had told Mr Wakefield “to flush any gear he has”, and they discussed what to do about the utility and guns. -- 12 of 97 -- [2024] SASCA 82 The Court 9 42 In a message at 11.27 am, Mr Wakefield asked TB whether there was any way he could check if “slugs labs have been raided”, and TB said he would find out what was going on. A few minutes later, Mr Wakefield sent TB a message saying that he “can’t really bury the guns if they are watching with cameras” and suggesting that he tell police that the utility was not his, and that he had agreed to look after it for someone but had lost their number. After TB told him that he thought “slug” was “all good”, Mr Wakefield responded “No worries cheers, hopefully they were just trying to scare me then, fingers crossed no raid”. 43 At 1.08 pm CD sent TB a message saying “We need Ute out today and we need to use to get worm out there is enough in there to get them both machine gun pistol and sawn off”. 44 At various points during the sequence of messages summarised above, the defendants also exchanged messages with other AN0M users (alleged by the prosecution to be other members or associates of the Comancheros), keeping them apprised as to the issue that had arisen in relation to the utility and its contents. 45 It seems that police then attended Mr Wakefield’s premises again and seized the utility, because at 1.49 pm TB sent a message to another AN0M user saying “Cops just raided Adel safe house and told the guy we just busted slugs lab”. 46 As will be explained later in these reasons, the prosecution contends that the above messages go beyond mere circumstantial evidence of the alleged participation in a criminal organisation (Count 1) and possession of the firearms and other prohibited items (Counts 2-5 and 8-14), and include messages which evidence the defendants’ exercise of control over the utility and firearms constituting the offending – noting that the participation and possession alleged in Counts 1-5 and 8-14 was particularised as having occurred on 12 January 2020 at Newton. Applications to exclude evidence of the AN0M communications 47 In advance of trial, the defendants filed various interlocutory applications in accordance with r 39 of the Joint Criminal Rules 2022 (SA), seeking to exclude evidence of the AN0M communications. 48 Relevantly, the questions reserved for consideration by this Court relate to three interlocutory applications: • an application filed on 5 December 2022 (FDN 166) which was, in essence, an application to exclude the AN0M communications on the ground that they were obtained through an unlawful interception of telecommunications contrary to the TIA Act and were hence inadmissible; • an application filed on 3 February 2023 (FDN 227) which was, in essence, a challenge to the validity of the two MCO authorisations obtained by the AFP under Part IAB of the Crimes Act; and -- 13 of 97 -- [2024] SASCA 82 The Court 10 • an application filed on 23 March 2023 (FDN 346) which was, in essence, an application to exclude the AN0M communications on the ground that they were “protected information” under s 44 of the SD Act and hence inadmissible at trial – the trial not being a “relevant proceeding” under s 45(5)(c) of the SD Act, with “relevant proceeding” defined in s 6 of that Act to include the prosecution of a “relevant offence”. 49 In separate judgments, the primary judge dismissed each of these applications.8 The questions relating to each are addressed separately in Part B (Questions 1 and 2), Part C (Question 3) and Part D (Questions 4, 5 and 6) of the reasons which follow. PART B: INTERCEPTION OF A COMMUNICATION UNDER THE TIA ACT 50 The first two questions are in the following terms: Question 1 In respect of Interlocutory Application [FDN 166] filed by the defendants on 5 December 2022, did the AN0M Application and system (together the AN0M Platform), as described in R v TB [2023] SASC 45 … involve an interception of a communication passing over a telecommunications system contrary to s 7(1) of the [TIA Act]? Question 2 If the answer to Question 1 is “Yes”, is the information and records obtained as a result of that interception inadmissible at the trial of the defendants? 51 Question 1 requires consideration of whether the conduct of the AFP in obtaining evidence of the AN0M communications involved an interception under s 7(1) of the TIA Act on the basis that it involved an interception of a communication passing over a telecommunications system. As to Question 2, it is common ground that if obtaining the copy messages did involve a contravention of s 7(1), then s 63 of the TIA Act would be enlivened and mean that the evidence is inadmissible. There is no discretion. 52 In addressing the issues raised by these questions, it is appropriate to commence by examining in some greater detail the evidence as to the operation of the AN0M application and platform. We will next address the relevant provisions of the TIA Act, before then considering their application to the AFP’s conduct in obtaining evidence of the AN0M communications. 8 R v TB (No 1) [2023] SASC 45, dismissing application FDN 166; R v TB (No 5) [2023] SASC 118, dismissing application FDN 227; and R v TB (No 6) [2023] SASC 140, dismissing application FDN 346. -- 14 of 97 -- [2024] SASCA 82 The Court 11 The evidence before the primary judge 53 At the hearing before the primary judge, the prosecution relied upon a significant body of evidence in relation to the development and operation of the AN0M application and platform. 54 We have already outlined the effect of Detective Superintendent Mansfield’s evidence as to the development of the AN0M platform. 55 Turning to its operation, the relevant evidence included evidence in relation to the source code of the AN0M application, the iBot servers and the retrieval software. It also included evidence as to the operation of modern communications systems, including dedicated encrypted communication applications, AOS and the telecommunications network. 56 In considering this evidence it is important to bear in mind that the issue of whether there was an unlawful interception must ultimately focus upon the terms of the statutory scheme, summarised later in these reasons. However, as will become apparent, an understanding of the operation of the AN0M platform, and the telecommunications system through which it operated, is critical to an informed application of the legislation. 57 The prosecution relied upon the unchallenged affidavit evidence of three AFP employees working in digital evidence: • Matthew Smith, who was a team leader within the AFP digital surveillance section, and had oversight of a team responsible for creating the functionality of the AFP retrieval servers and for their ongoing maintenance during the life of Operation Ironside. His evidence included a description of the architecture of the AN0M platform. • Keith Fell, who was an AFP Senior Digital Forensic Examiner. He gave evidence of his visual examination of an AN0M configured mobile phone handset, and conducted a comparison with a standard mobile device running AOS. • CIN325, who was a special member of the AFP attached to the digital surveillance collection area. It was not suggested that CIN325 had any technical expertise in relation to the operation of the AN0M platform. Rather, CIN325’s role was to act as a liaison between the technical and non- technical people involved in the development and maintenance of the AN0M platform. 58 The prosecution also called evidence from three independent experts: • Professor Aruna Seneviratne, an expert in telecommunications networks and systems, who gave evidence about modern telecommunications networks and end system application software, including AOS. -- 15 of 97 -- [2024] SASCA 82 The Court 12 • Yogeshkumar Khatri and Brett Jenkins, who are both experts in reading and writing computer programming code, and gave evidence of their examination of the AN0M source code and their opinions as to the operation of the software used by the AN0M application, iBot servers and AFP servers. 59 There was no challenge to the expertise of these witnesses. Nor was there ultimately any significant dispute as to how the AN0M platform operated. The area of controversy was in the application of the legislation to the operation of the AN0M platform. 60 Questions 1 and 2 fall to be determined according to the description of the AN0M platform in the primary judge’s reasons. Consistently with this, the summary of the AN0M platform which follows borrows heavily from those reasons, but supplemented in places by aspects of the evidence emphasised in the submissions of the parties. Whilst at times the judge’s reasons were expressed as merely summarising the evidence, it is apparent from the forensic context we have described that his Honour accepted the evidence included in his summary. The summary which follows should be understood in the same way. AOS and the AN0M application 61 A computer system that connects to a network may be referred to as an end system. Today’s mobile phone devices, commonly referred to as smartphones, are minicomputer systems and operate as end systems.9 62 The functionality of a mobile phone is generally located on, and controlled through, a printed circuit board known as a motherboard or mainboard. That functionality includes the device’s processor, storage and memory. The operation of these functions is determined through the transmission, from the software installed on the device to the motherboard, of digital signals comprising electrical signals or impulses representing instructions to perform specific tasks. The software is usually written in a higher level computer language, but converted into signals transmitted as a series of zeros and ones known as (binary) machine code.10 63 Operating systems and applications are both forms of software.11 Speaking generally, the operating system manages the hardware of the end system. For example, it controls the timing and power management of the relevant device, as well as what is written to, and stored in, the memory of the device, and how data is transmitted and received via the device’s network interfaces. The two most widely available operating systems for mobile devices are AOS (an open-source operating system developed by Google) and iOS (a proprietary operating system developed by Apple). 9 Prof Seneviratne T703, affidavit [29]. 10 Prof Seneviratne affidavit [67]-[68]. 11 Prof Seneviratne affidavit [27]-[30]. -- 16 of 97 -- [2024] SASCA 82 The Court 13 64 Applications are software programs that provide specific services to users of an end system or device. They may be built on top of an operating system such as AOS.12 Examples of common application software include WhatsApp (which provides communication services) and Microsoft Word (which provides word processing services). 65 The operating system also enables application software to read data from the hardware or device, through specialised software such as an application programming interface (API). An API is essentially software that allows two other software packages to speak to one another.13 66 As mentioned, the devices distributed during Operation Ironside were mobile phones utilising AOS. The AN0M application was installed on the devices and operated using AOS. Its source code governed the way the application functioned. The AN0M application had an API which allowed it to access the functionality of AOS and the mobile device on which it was installed. 67 To enable communications, the devices were connected to a telecommunications network using either a wifi or cellular data connection to the internet. In this way, they were connected to an XMPP server, with XMPP being a protocol that enables communications through instant messaging and the ability to check users’ presence on the network.14 Through the use of XMPP, the AN0M application provided similar functionality to other messaging applications using that protocol, including WhatsApp.15 Messages or communications were able to be sent between users’ devices through the transmission of packets of data, in the form of electromagnetic energy or waves, over the telecommunications system.16 Unlocking, authentication and connection 68 The AN0M application was hidden on the user’s mobile device, disguised as what appeared to be a standard calculator installed on the device. It was unlocked by a user entering a unique ID number into the calculator and then holding down or ‘long pressing’ the relevant button or icon. Once the user ID was authenticated, the AN0M application would open.17 69 Upon it opening, the AN0M application was designed to automatically connect to the XMPP server. An internet connection was required for that to occur, and would ordinarily be established automatically upon the application being opened.18 12 Prof Seneviratne affidavit [36]-[37]. 13 Mr Khatri T888-889, T897-898. 14 Prof Seneviratne affidavit [55]-[58], [79]-[80]. 15 Prof Seneviratne affidavit [92]. 16 Prof Seneviratne T814-815. 17 Mr Khatri affidavit [88]-[89], T955; Mr Jenkins T1087. 18 Mr Khatri affidavit [90], T918, T955; Mr Jenkins T1087. -- 17 of 97 -- [2024] SASCA 82 The Court 14 70 In order to connect to the XMPP server, the AN0M application needed to authenticate with a username and password. The application was authenticated by the XMPP server identifying the username and password which were derived from the device’s IMEI number and a fixed string of numbers and letters. Once authenticated by the XMPP server, the application was available for use.19 Preparing and sending messages 71 Users would prepare communications through the AN0M application in a way familiar to any user of a smartphone. User A would type a message (or record a voice message, or attach a photo) and address it to User B, being the person or persons to whom User A intended to send the communication. Once this had been done, User A would press the ‘send’ button (that is, the icon next to the field in which the message had been entered, also referred to as the ‘trigger’). 72 When User A pressed the icon in order to send the message to User B, an entirely separate copy of the message was made.20 Both the original message and the copy message were then sent as separate packets of data to their different destinations. 73 On Mr Khatri’s evidence, the creation of the copy message occurred entirely within the AN0M application.21 To the extent that additional data was attached to the copy message, it was obtained from outside of the AN0M application, taken back into the application and then added to the copy of the message whilst it was within the application and before it left the application.22 74 The original message was sent to User B. The copy message, on the other hand, was sent to the bot user (username ‘[email protected]’) which had been installed in the contact list of User A’s device. The existence of the bot user, and its presence in the contacts list, was not known to users of the AN0M-enabled devices.23 75 Mr Khatri drew a distinction between the send button being pressed and the ‘send message function’ being activated,24 albeit that the former plainly caused the latter to occur. By reference to the source code of the AN0M application, he described the sequence of operations, not visible to the user, which occurred when the send button was pressed, and the send message function activated, in relation to a particular communication.25 Those operations included: performance checks to determine whether the XMPP server was online; encryption of the 19 Mr Khatri affidavit [78]-[79]. 20 Mr Khatri T905, T963-965. 21 Mr Khatri T905. 22 Mr Khatri T906-909. 23 Mr Khatri T943-945. 24 Mr Khatri T908. 25 Mr Khatri T903, T905, affidavit [95]. -- 18 of 97 -- [2024] SASCA 82 The Court 15 communication; formatting the communication in accordance with XMPP; and sending the encrypted message to AOS for transmission to the XMPP server.26 76 The encryption of the communication itself involved several steps, including: checks to determine the encryption protocol to be used; calls to the relevant code libraries to encrypt the message in the selected protocol; creation of the end-to-end encryption ‘envelope’ through the exchange of public keys; and encryption of the message based on the public key of the recipient(s). 77 Focussing upon the passing of the encrypted message from the application to AOS, Mr Khatri explained:27 Q What is the sequence of operations with respect to the message itself. So you type in your message and you hit send. Now what occurs. A So it takes the message and it will then determine which encryption protocol it needs to use. It will basically make those calls to those libraries, get that message encrypted in that format. Those libraries will also ensure – I’m skipping a lot of processes along the way. It will ensure that the encrypted envelope that we talked about, the end-to-end encryption, all of that is established. It will go ahead, encrypt that message based upon the public key of the recipient. Once all that is done it will eventually then hand that packet over – well, it will basically format it in the XMPP protocol manner, the way the XMPP protocol needs that to be formatted, and eventually that message packet will be sent out to the server and in order to do that it will make a call to the android operating system and say ‘Hey, take this. Send it out to the server at this point.’ And the server will then handle you know forwarding that packet to the intended recipient. 78 Mr Khatri described AOS as providing the “doorway to the telecommunications network”.28 79 Mr Khatri also agreed that both the original message and copy message were created and encrypted in the AN0M application, and then sent via AOS and the XMPP server in the same way, but to their different recipients (User B and the iBot server respectively).29 80 Mr Jenkins described what occurred upon User A pressing the send button in terms that were consistent with the evidence of Mr Khatri. He said that when User A pressed the send button, the following occurred: a second or copy message was created from the same content as User A’s message to User B; additional information was obtained from sensors on the device, via AOS, to add to the copy message; the copy message was encrypted; and the copy message was sent as a separate message to the iBot server.30 26 Mr Khatri T902-903, affidavit [92]-[103]. 27 Mr Khatri T903. 28 Mr Khatri T897. 29 Mr Khatri T901-907, affidavit [19]-[24]. 30 Mr Jenkins T1081-1083. -- 19 of 97 -- [2024] SASCA 82 The Court 16 81 Mr Jenkins was clear in his evidence that, in accordance with the application software, the creation of the copy message, the addition of data to that message, and the encryption of both messages, all occurred within the application.31 He was also clear that the original and copy messages were then sent as separate messages, via AOS and the XMPP server, to their respective destinations.32 82 Mr Jenkins described the movement of the message from the application to the XMPP server, via AOS, in the following terms:33 When you look at [any] application running on a network it goes – when the message is sent across the network it goes through various layers which we refer to as different transport layers on the phone. So the phone, you have the – I’m trying to explain it carefully. So you have the AN0M app and it’s sending a message to the XMPP server but it doesn’t do it directly. It passes it down to another layer in the operating system, which passes it down to a layer which puts it in a packet and sends that packet across the network to the service at the other end. So we always picture networking as being through these transport layers. And at the bottom is a physical layer of wires that you pass through. 83 Mr Jenkins said that once the send button was pressed, the user could not stop what occurred, including not being able to stop either message being sent. It was, in that sense, “an inexorable process” that occurred “largely” instantaneously.34 He later described it as an “integrated process”.35 84 At the same time, Mr Jenkins agreed that the message created in the AN0M application by User A sat in the temporary memory of the device while it was being packaged and encrypted, and before it was passed to AOS to then be sent from the device.36 Mr Jenkins also said that while the AN0M application required an internet connection to ‘work’ (in the sense of sending a message to another user), it could nevertheless launch and run on the device without the device being connected to the internet. His evidence was that if a message was ‘sent’ in this state, it would not go anywhere until a connection was established.37 85 Mr Khatri gave evidence to similar effect. Earlier in his evidence, Mr Khatri had said that the AN0M application required a connection to the internet in order for it to operate in the sense of enabling messages to be sent.38 However, he later clarified that his understanding was that, like most messaging applications, the AN0M application nevertheless enabled a user to compose a message even when there was no internet connection (for example, if the signal dropped out). In that scenario, if the user pressed send, the application would start to process the message into data packets in the shape or protocols necessary for transmission to the XMPP server. However, the data representing the message would be stored on 31 Mr Jenkins T1082-1083. 32 Mr Jenkins T1107-1108. 33 Mr Jenkins T1144. 34 Mr Jenkins T1090. 35 Mr Jenkins T1121. 36 Mr Jenkins T1148. 37 Mr Jenkins T1144, T1148. 38 Mr Khatri T918, T955-956. -- 20 of 97 -- [2024] SASCA 82 The Court 17 the device, in a queue, until there was an active internet connection permitting it to be sent from the device.39 86 In this sense it would seem there is an analogy with what occurs when a user of a computer or smartphone types an email and presses send, but the device is not connected to the internet. The data representing the email message is processed and packaged for transmission, but remains stored in the email application operating on the device; that is, sitting in the user’s outbox. It is not able to leave the device, and travel over the telecommunications system to its intended recipient, until an internet connection is established or restored. Once that connection is established or restored (and assuming the user has not deleted the message in the interim) the email is automatically sent.40 87 The silent copying and relaying of messages by the AN0M application was at times referred to in the evidence as ‘the BCC functionality’. However, as the experts emphasised, this functionality of the AN0M application operated quite differently from the BCC functionality of emails. In an email, a single message is sent to the server with a list of the recipients, including the BCC recipients. The server then handles the creation and distribution of the separate copies. However, as has been explained, in the case of the AN0M application, the separate copy message was created in the application itself, rather than at the point the original message reached the server.41 The iBot server 88 As explained, the copy message was sent via the XMPP server to the bot user at the iBot server. The iBot server was installed with software, described as a “Java-based application” which could run on a computer (the iBot application).42 89 Mr Khatri said that the purpose of the iBot application was to connect to the XMPP server as the bot user and retrieve messages sent to it. He explained that as soon as it logged onto the XMPP server, the iBot server would receive the messages sent to the bot user and save them into a database.43 He described the iBot application as an AN0M client enabled to receive and retrieve messages addressed to the iBot server and store them in a database:44 … iBot is … a Java based application that … you could run on a standalone computer – not on a phone, on a computer – and it was basically an AN0M client, just like you have an AN0M client which is the app, except this is not in an app form, this is running on a computer and it would login as the bot user and it would retrieve messages. As soon as it logged in it would get all of the messages addressed to bot, it would take those messages and put them in the database. 39 Mr Khatri T972-973. 40 Prof Seneviratne T768-772. 41 Mr Khatri affidavit [113], T905, T963-964; Mr Jenkins T1107-1108. 42 Mr Khatri T884, T945. 43 Mr Khatri T945, T949. 44 Mr Khatri T945. -- 21 of 97 -- [2024] SASCA 82 The Court 18 90 Mr Khatri explained that the iBot server also operated iBot API software, a core functionality of which was to query the database in which the iBot application stored the data (representing the copy messages) in response to programmatic requests from the software operating on the AFP retrieval servers, and to then make that data available for download via a web interface. He described the iBot API as a conduit for the flow of data between the iBot server and the servers accessible by the AFP.45 91 Mr Jenkins also described the function of the iBot application and what he referred to as its ‘listening activity’. He described the iBot application as a “cut- down version of the AN0M handset software, configured only to receive and not to send or display messages … its role was to listen for, to receive, and to store XMPP messages that were addressed to the ‘bot’ account.”46 92 He said that the iBot application was designed to maintain a connection with the XMPP server47 and to receive messages addressed to the bot user.48 The ‘push’ functionality of the iBot application worked by the bot user announcing itself online to the XMPP server, and thereafter ‘listening’ for messages addressed to it from the XMPP server.49 To launch and authenticate, or log in, as the bot user, a configuration file was required which would include information for the software about where to connect – such as the IP address of the XMPP server, details about encryption including the key, and a username and password.50 93 Mr Jenkins said that upon receipt of an encrypted message, the iBot application would decrypt the message, check to see whether it required further content to be downloaded and, if so, download that content and save it to a database on the iBot server (which he referred to as the collection server).51 In the opinion of Mr Jenkins, in later builds of the iBot application,52 a process of re-encrypting the content and saving it to a database was also observed in the source code.53 94 Mr Jenkins said that the role of the iBot API included receiving and managing retrieval requests from the AFP servers. It responded to requests by accessing data on the collection server database and then sending that content in an appropriate format to one of the two servers in Sydney accessible by the AFP.54 It was this data which the AFP then accessed through computer access warrants, and which is the subject of the present applications. 45 Mr Khatri affidavit [207]-[242], T884, T888-889. 46 Mr Jenkins affidavit [20]. 47 Mr Jenkins T1072. 48 Mr Jenkins T1066. 49 Mr Jenkins T1067. 50 Mr Jenkins T1071. 51 Mr Jenkins T1066. 52 Mr Jenkins T1112. 53 Mr Jenkins T1067-1068; see also Mr Khatri affidavit [188]. 54 Mr Jenkins affidavit [57], T1077-1079. -- 22 of 97 -- [2024] SASCA 82 The Court 19 95 AN0M mobile devices were, of course, also enabled to receive messages. Like the iBot servers, AN0M devices would listen for messages addressed to them from the XMPP server.55 Modern application-based communications systems 96 Prof Seneviratne gave evidence about the operation of communication systems, and in particular modern application-based communication systems. 97 Prof Seneviratne described a telecommunications network as “the devices and the infrastructure that transports signals from end device to another end device.”56 He described a ‘network’ as being split between the physical or ‘underlay’ network, and the ‘overlay’ network that sits on top of it.57 He explained that the underlay network is the ‘transport’ network that is provided by an operator or carrier like Telstra or Optus, and consists of software and hardware for connecting to end systems and transferring data.58 The overlay network includes mobile phones, desktop computers, laptops and servers, all of which may be described as end systems where data comes to rest for a time before it is processed or retransmitted. The end system devices connect to the underlay network but, in his view, do not form part of it.59 98 Mr Khatri said that although he did not typically use the terminology of underlay and overlay networks, he was familiar with that terminology and that the former referred to “the telecommunications pipe … the telecommunications conduit which allows the data to flow back and forth”, whereas the latter referred to “the data at the higher layers, meaning the application itself”.60 In cross examination, he maintained that the AN0M platform did not itself form part of the telecommunications network but, rather, connected to the telecommunications network in order to transmit data.61 That said, he was appropriately reluctant to provide a detailed opinion about such matters as he was not a telecommunications expert. 99 Turning to the operation of the AN0M platform, Prof Seneviratne said that the AN0M application was designed to be installed on a mobile phone using AOS.62 He explained that AOS was an ‘open source’ operating system, meaning that its source code is accessible to developers.63 He described AOS as managing the hardware resources and software components of an Android device, while allowing additional functionality to be developed.64 55 Mr Jenkins T1144-1145. 56 Prof Seneviratne T1010. 57 Prof Seneviratne T701-T703, affidavit [61]-[64]. 58 Prof Seneviratne T703. 59 Prof Seneviratne T702-703, affidavit [27]-[29]. 60 Mr Khatri T900. 61 Mr Khatri T916-918. 62 Prof Seneviratne T704-705. 63 Prof Seneviratne T698, T699, affidavit [67]-[70]. 64 Prof Seneviratne T697. -- 23 of 97 -- [2024] SASCA 82 The Court 20 100 Prof Seneviratne explained that applications, including dedicated encrypted communications applications, are items of software that are not part of the operating system of a phone. He said that applications are designed to run on top of the operating system. He said:65 The way I describe to the students is you have a Lego base plate, which you build things on. So you can add – the base plate is the operating system and the Lego blocks are apps which are of different colour, they can – one app can build on another app or it could be apps that just plug onto the base plate. 101 Prof Seneviratne described AOS as providing an end system (such as an AN0M-enabled mobile device) with supportive functionality to communicate with other end systems using the same software by connecting to the underlay network.66 102 Prof Seneviratne explained that the operation of a ‘communications system’ involves two phases, the connection phase and the data transfer phase.67 He also explained that in his field of expertise, a communications system is referred to in terms of ‘layers’, defined by reference to an international standard known as the ISO reference model.68 The bottom ‘physical layer’ is where a communication is transmitted from one piece of hardware to another.69 103 Above this layer is the ‘data link layer’, which takes the physical connection and makes it reliable by adding extra information to the packets of data received from the physical layer, correcting for any errors that may have occurred whilst the signals were being transmitted.70 104 The layer above this is the ‘network layer’, which is responsible for routing the packets of data through interconnected networks. This is again done by adding extra information to the packets. The most commonly used protocol for this purpose is the Internet Protocol (IP). This protocol is used to add a unique identifier or address for the intended receiving end system, in the form of an IP address.71 105 Above this layer sits the ‘transport layer’, which is responsible for the reliable delivery and receipt of packets of data sent between end users. The most widely used transport layer protocol is the Transmission Control Protocol (TCP). There are extensions to the TCP that provide better security. These include the security extension referred to as Transport Layer Security (TLS).72 65 Prof Seneviratne T704-705, affidavit [30]-[38]. 66 Prof Seneviratne T704. 67 Prof Seneviratne T707. 68 Prof Seneviratne T715, affidavit [17]-[26]. 69 Prof Seneviratne T715. 70 Prof Seneviratne affidavit [19]. 71 Prof Seneviratne affidavit [20]. 72 Prof Seneviratne affidavit [22]. -- 24 of 97 -- [2024] SASCA 82 The Court 21 106 The top layer, or ‘application layer’, is where a dedicated encrypted communication application like the AN0M application operates. 107 A dedicated encrypted communications application may not use all seven layers in the ISO reference model. However, it will use the application layer and the physical layer, along with the data link, network and transport layers.73 108 Prof Seneviratne said that the application layer is where the connection phase commences. He described this phase as involving a ‘handshake’ that establishes the connection between two end systems (the AN0M device and the XMPP server) and that authenticates the transmitter and receiver.74 The data to establish the connection travels through the layers, from the application layer to the physical layer of the device, and then through the network to the recipient. 109 On Prof Seneviratne’s evidence, only the physical layer of the device forms part of the telecommunications network. A messaging application is not part of the physical layer of the device, and is not part of the telecommunications network. He said that in the physical layer it is necessary to have the appropriate signalling on a device to connect to the network.75 Prof Seneviratne explained that the signal then travels back through the layers to the application layer to signal that the connection has been made, before the data transfer phase can commence.76 110 Prof Seneviratne described the transfer of data using a dedicated encrypted communications application as involving a different phase from the connection phase. He described the data transfer phase in the following way: 77 So what will happen is there will be a bit of code or, as they would call, a library which will allow the data that you type on your device to be collected and encrypted. ‘Encrypted’ means you scramble it in a way that nobody else can understand and the way you scramble it is by using a key, as they say, so you use a key to scramble the data in a specific way so that the only other person who can understand the data is a person who can get the data, put it through this process of unscrambling using the same key. So it will get the data, encrypt it or scramble it and give it to the operating system and the way you give it to the operating system is through a specific interface, which is, in computing jargon it’s called a socket, so you actually get the data into that socket and the operating system takes over and adds some information to that data, encrypted data, that it was given and that additional information is the information that is used by the telecommunications network to route the packet to the destination. 111 Thus, the encryption of the data occurs in the application on the device, within the application layer. The encrypted message is then passed through a socket to the operating system on the device. The operating system adds ‘control information’ to the data to route the data to the recipient’s device.78 This occurs in 73 Prof Seneviratne T716-717. 74 Prof Seneviratne T725. 75 Prof Seneviratne T1020. 76 Prof Seneviratne T722, T733, affidavit [12]-[17]. 77 Prof Seneviratne T707-708. 78 Prof Seneviratne T709. -- 25 of 97 -- [2024] SASCA 82 The Court 22 the transport layer.79 The data, or message, then travels through the physical layer and into the telecommunications network to the recipient. It is not, and cannot be, decrypted until it reaches the recipient. Once received, it is decrypted using an encryption key on the application in the receiving end device.80 112 Prof Seneviratne said that when using a dedicated encrypted communication application, TLS provides a secure ‘pipe’ from one end system to another that prevents interference in the middle of the data transfer.81 He explained:82 So think of it as messages being encrypted like what you write is scrambled and the pipe as being hard and so that nobody can look into it, because if you just don’t harden the pipe, people can just see what is going on. So what TLS does is hardens the pipe so that nobody can look in. 113 The TLS is used during both the connection phase and the data transfer phase. The type of encryption to be used in the data transfer phase is negotiated or agreed upon between the parties during the connection phase, before the data can be transferred. The sequence was summarised by Prof Seneviratne in the following way:83 TLS has two components to it. We talked about a handshake which establishes the secure channel to the server, XMPP server, and then actually transfer of data from the ANOM application to the XMPP, from the XMPP server to the destination. So I'm assuming that when we run - when you say that you have started the ANOM application, the handshake process has happened and there is a TLS connection between the ANOM application and the XMPP server. Assume that TLS connection is there, now we are entering data and whatever [User A] types will be essentially packaged into a packet and will be transferred to the TLS. TLS happens to be within the operating system, so think of the application as running in the application layer. TLS is the transport layer and then there is the network layer which is IP and then there is immediate access control layer and a physical layer. So what happens is the data is given to the transport layer, the transport layer adds all the necessary control to make sure that it is secure. It goes through the pipe and the network layer routes the data to the destination and gives it to the physical layer. The physical layer converts it into whatever signal that it wants to and sends it through the telecommunications network. 114 In Prof Seneviratne’s opinion there is a ‘boundary’ between an end system device and the transport network. As to the determination of that boundary, he said:84 It’s - so it is the boundary at which your device has some control of what is happening in that cloud. So your mobile device cannot control what is happening inside the network, it can just give your information to the operating system and it goes through the interface into the network. So if you look at a desktop computer, that boundary would be where your desktop computer connects the internet cable, you can’t control what's beyond that, 79 Prof Seneviratne T718-719. 80 Prof Seneviratne T709-710. 81 Prof Seneviratne T720-721. 82 Prof Seneviratne T799. 83 Prof Seneviratne T1030-1031. 84 Prof Seneviratne T731-732. -- 26 of 97 -- [2024] SASCA 82 The Court 23 whatever is in your machine you can control. If it’s your mobile device, once you send it to either the cellular network or wi-fi network, your device cannot control what is happening. So the network boundary is where, once it - something leaves your network and you cannot control what is there. What’s outside the network boundary is where you have full control, so you can - I can essentially manipulate the data as I see fit. 115 Prof Seneviratne spoke of both an ‘internal boundary’ between the application and operating system of a mobile device, and a ‘physical boundary’ between the device and the network:85 There is definitely a boundary. So there is a boundary from the application to the operating system. That’s an internal boundary. Then there is a physical boundary from the phone to the network, whichever network that you connect. And the reason why I say that there is a boundary within the phone, until it hits the physical layer I have full control of the data. For example [User A] can hit the send button, I can take that data out and do something to it and retransmit it, so there is no boundary between [User A’s] application and the telecommunications system at the point where [User A] is sending the hit button. 116 He rejected the proposition that pressing the send button rendered such boundaries meaningless. He explained:86 The reason is [User A] may have pressed the send button but it has even not left [User A’s] application, whatever application that may be. The application has full control of the data that [User A] has sent. It can send to another application which is running. It has nothing to do with the telecommunications network. In that application I can do whatever I want and I can send it to a third application, fourth application, whatever number of applications that I want. And then I give it to the operating system. Right. The operating system in itself has full control of what you do to the network. Only when it leaves the operating system and goes into the telecommunications network do I or the person who owns the device have no control. 117 As the primary judge observed,87 there is no inconsistency between this evidence and the evidence of Mr Jenkins to the effect that User A was not able to stop the processes commenced by hitting the send button. Mr Jenkins’ evidence was directed to what the human user was able to do, or more particularly, unable to do, once they had pressed send. Prof Seneviratne’s evidence, on the other hand, related to how the application may be programmed. That is, the programming of the application controls what occurs and, in that sense, the application has ‘full control’ of the data and there is a ‘boundary’ between it and the operating system. AOS also has control of the data passed to it by the application as it may also be programmed to deal with that data in a particular way. AOS only loses control when the data is passed to the network. 118 Prof Seneviratne also said that the network was no longer involved once a communication arrived at the device of a recipient. He said that at that point, it was no longer passing over the telecommunications system.88 85 Prof Seneviratne T1021-1022. 86 Prof Seneviratne T1022. 87 R v TB (No 1) [2023] SASC 45 at [78]. 88 Prof Seneviratne T734. -- 27 of 97 -- [2024] SASCA 82 The Court 24 The TIA Act 119 The TIA Act recognises and protects the interest of users of the Australian telecommunications system in the privacy of the content of, and information about, their communications over that system. It does so by, amongst other things, regulating the interception of communications passing over the telecommunications system (Chapter 2), and regulating access to stored communications (Chapter 3) and telecommunications data (Chapter 4). 120 The provisions of the TIA Act regulating these matters are premised upon a recognition that the planning and carrying out of criminal activity – particularly serious and organised crime – often involves the use of telecommunications services and technology. With this in mind, the Act provides a framework for national security and law enforcement agencies to access communications and data for law enforcement and national security purposes, while at the same time striking a balance with the interest of users of the telecommunications system in the privacy of their communications. 121 As mentioned, Chapter 2 of the TIA Act regulates the interception of communications. Its primary function is to prohibit the interception of communications passing over the telecommunications system, except as authorised by the TIA Act (essentially, in limited circumstances such as a life threatening emergency, or otherwise under what is referred to as an interception warrant). We shall shortly return to the detail of the provisions of Chapter 2. 122 Chapter 3 regulates access to stored communications, being communications that are not passing over a telecommunications system, but rather held, or ‘stored’, in some way. Importantly, by reason of the definition of “stored communications” in s 5(1), the TIA Act only seeks to regulate stored communications which are held on equipment operated and possessed by a telecommunications carrier, and which can only be accessed with the assistance of that carrier. Access to these stored communications is likewise restricted to limited circumstances, or otherwise under what is referred to as a stored communications warrant. 123 Communications that are not passing over a telecommunications system, and are not “stored communications” within the meaning of s 5(1) (because they are not accessed through a telecommunications carrier), are not regulated by the TIA Act. Thus, records of communications which are, for example, stored on users’ computers or mobile devices before or after their passage over the telecommunications system, are not regulated by the TIA Act. Instead, they remain subject to general principles of lawful access including consent, general search warrants and notices to produce.89 89 As confirmed by the Explanatory Memorandum (p 6) and Supplementary Explanatory Memorandum (p 3) to the Telecommunications (Interception) Amendment Act 2006 (Cth) (through which the provisions governing access to stored communications were introduced). -- 28 of 97 -- [2024] SASCA 82 The Court 25 124 Chapter 4 of the TIA Act governs access to telecommunications data, being information about communications (such as the phone numbers or email addresses of participants in communications, and the time, duration and frequency of communications) or information about a service (such as the name, address or billing details of the relevant customer or subscriber), as opposed to information about the content of communications. Data of this type is often useful in criminal investigations, and the provisions of Chapter 4 recognise this both by requiring the retention of such data, and by permitting access to it by certain law enforcement agencies in defined circumstances. The provisions of Chapter 2 125 In considering the prohibition against the interception of communications in Chapter 2 of the TIA Act, the starting point is s 7(1). It provides: 7 Telecommunications not to be intercepted (1) A person shall not: (a) intercept; (b) authorize, suffer or permit another person to intercept; or (c) do any act or thing that will enable him or her or another person to intercept; a communication passing over a telecommunications system. 126 The word “intercept” is not defined in the TIA Act, but s 6(1) addresses what is meant by the “interception of a communication passing over a telecommunications systems”: 6 Interception of a communication (1) For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication. 127 It can be seen that for there to be an “interception”, there must be a “communication” which is listened to or recorded “in its passage over the telecommunications system” and “without the knowledge of the person making the communication”. 128 Section 5(1) of the TIA Act defines several relevant terms. “Communication” is defined as: communication includes conversation and a message, and any part of a conversation or message, whether: (a) in the form of: -- 29 of 97 -- [2024] SASCA 82 The Court 26 (i) speech, music or other sounds; (ii) data; (iii) text; (iv) visual images, whether or not animated; or (v) signals; or (b) in any other form or in any combination of forms. 129 Neither “listening” nor “recording” is defined in the TIA Act, but “record” is defined as follows: record means: … (b) in relation to an interception, whether or not in contravention of subsection 7(1), of a communication: (i) a record or copy, whether in writing or otherwise, of the whole or a part of the communication, being a record or copy made by means of the interception; or (ii) a record or copy, whether in writing or otherwise, of the whole or a part of a record or copy that is, by virtue of any other application or applications of this definition, a record obtained by the interception. 130 There is no dispute that the challenged evidence of the AN0M communications was obtained by recording or copying those communications without the knowledge of the person making the relevant communications. The issue is whether the operation of the AN0M application and platform was such that this occurred while the relevant communications were “passing over a telecommunications system”. 131 Relevantly in this respect, “passing over” is defined as “includes being carried”, and “carry” is defined as “includes transmit, switch and receive”. 132 Further, ss 5F-5H of the TIA Act address when a communication is taken to start passing over the telecommunications system, and when it is taken to be no longer doing so. In particular, s 5F provides: 5F When a communication is passing over a telecommunication system For the purposes of this Act, a communication: (a) is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication; and (b) is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication. -- 30 of 97 -- [2024] SASCA 82 The Court 27 133 The passage of a communication over a telecommunications system thus commences when it is “sent or transmitted,” and ceases once it is “accessible to the intended recipient”. 134 The “intended recipient” of a communication is defined in s 5G: 5G The intended recipient of a communication For the purposes of this Act, the intended recipient of a communication is: (a) if the communication is addressed to an individual (either in the individual’s own capacity or in the capacity of an employee or agent of another person)— the individual; or (b) if the communication is addressed to a person who is not an individual—the person; or (c) if the communication is not addressed to a person—the person who has, or whose employee or agent has, control over the telecommunications service to which the communication is sent. 135 And s 5H addresses the accessibility of a communication to the intended recipient: 5H When a communication is accessible to the intended recipient (1) For the purposes of this Act, a communication is accessible to its intended recipient if it: (a) has been received by the telecommunications service provided to the intended recipient; or (b) is under the control of the intended recipient; or (c) has been delivered to the telecommunications service provided to the intended recipient. 136 The terms “telecommunications device”, “telecommunications network”, “telecommunications service” and “telecommunications system” are defined in s 5(1) of the TIA Act as follows: telecommunications device means a terminal device that is capable of being used for transmitting or receiving a communication over a telecommunications system. telecommunications network means a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, but does not include a system, or series of systems, for carrying communications solely by means of radiocommunication. … telecommunications service means a service for carrying communications by means of guided or unguided electromagnetic energy or both, being a service the use of which enables communications to be carried over a telecommunications system operated by a -- 31 of 97 -- [2024] SASCA 82 The Court 28 carrier but not being a service for carrying communications solely by means of radiocommunication. … telecommunications system means: (a) a telecommunications network that is within Australia; or (b) a telecommunications network that is partly within Australia, but only to the extent that the network is within Australia; and includes equipment, a line or other facility that is connected to such a network and is within Australia. 137 “Equipment” is defined in s 5(1) to mean: … any apparatus or equipment used, or intended for use, in or in connection with a telecommunications network, and includes a telecommunications device but does not include a line. 138 The terms “terminal device”, “transmit” and “receive” are not defined. 139 The TIA Act provides for warrants to be obtained to permit communications to be intercepted in their passage over a telecommunications system. However, no interception warrant was obtained in the present case. As the primary judge noted,90 this was a considered decision. The AFP took the view that its conduct in connection with the AN0M application and platform did not involve any interception of a communication in its passage over a telecommunications system. Construing the TIA Act 140 In construing the relevant provisions of the TIA Act, and in particular those governing the general prohibition against the interception of communications passing over the telecommunications system, it is necessary to have regard to their text, context and purpose. 141 As Kiefel CJ, Nettle and Gordon JJ explained in SZTAL v Minister for Immigration and Border Protection:91 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.92 Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense.93 This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, 90 R v TB (No 1) [2023] SASC 45 at [16]. 91 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]. 92 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]. 93 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. -- 32 of 97 -- [2024] SASCA 82 The Court 29 and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. 142 Of course, under s 15AA of the Acts Interpretation Act 1901 (Cth), a construction that would best achieve the purpose or object of the TIA Act (whether or not expressly stated in the Act) is to be preferred to each other interpretation. While a purposive approach to the construction of the relevant provisions of the TIA Act is thus appropriate, indeed mandated, it is important not to lose sight of the fact that the task remains one of construing the particular words used by the legislature in giving effect to that purpose. 143 In outlining the general structure and content of the TIA Act, we mentioned that a purpose of the Act is to protect the privacy of users of the telecommunications network throughout Australia. This purpose has been recognised in several of the authorities which have considered the general prohibition against the interception of communications under the TIA Act. As Lee J said in Edelsten v Investigating Committee of NSW:94 The Act, in seeking to control interception of communications, is concerned to protect the privacy of communications passing between users of the system established by the Commission ... 144 Importantly, however, the TIA Act does not seek to impose, and is not premised upon, a general or blanket right of privacy in relation to communications between users of a telecommunications system. Consistent with the understanding that legislation rarely pursues its purposes or objectives at all costs,95 the protection that is provided represents an attempt to balance users’ interest in privacy against the public interest in access to communications and data for national security and law enforcement purposes. 145 Further, so far as the content of communications is concerned, the protection has been articulated in terms that confine it to communications which are “passing over” a telecommunications system. In other words, the TIA Act is not intended to ensure the privacy of communications per se. Rather, it is concerned merely with the privacy of communications as they pass over a telecommunications system, as an aspect of the TIA Act’s more general concern with the regulation and integrity of that system. 146 The significance of this limitation of the prohibition against the interception of communications to communications “passing over” a telecommunications system has been recognised in the authorities. 94 Edelsten v Investigating Committee of NSW (1986) 7 NSWLR 222 at 229; approved in R v Edelsten (1990) 21 NSWLR 542 at 549 (Carruthers, Allen and Badgery-Parker JJ), T v Medical Board (SA) (1992) 58 SASR 382 at 398 (Matheson J), Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 297-298 (Sackville J) and Green v The Queen (1996) 124 FLR 423 at 432 (Franklyn J, Pidgeon and Rowland JJ agreeing). 95 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at [92] (Gageler J); Tjungarrayi v Western Australia (2019) 269 CLR 150 at [46] (Gageler J). -- 33 of 97 -- [2024] SASCA 82 The Court 30 147 For example, in R v Giaccio,96 Cox J (Millhouse and Perry JJ agreeing) held that taping telephone conversations by means of a micro-cassette recorder, held close to the telephone handpiece by one of the participants in the conversation, did not involve an interception of communications passing over a telecommunications system within the meaning of the Telecommunications (Interception) Act 1979 (Cth) (as the TIA Act was then called). His Honour explained:97 The connotation of the s 6 terminology is not as clear as it might be, which explains why different judges have interpreted the section differently, but I would see the telephone system as (to put it symbolically) starting with a handset microphone and ending with a handset loudspeaker. It may well have intangible components or features in between those points but its outer boundaries, as it were, will consist typically of telephones — a myriad of them, as it happens. It is true that the system will not operate unless sound is fed into it at one end and out of it at the other, but it does not follow from this that the sound waves that are external to the equipment at these two points are part of the telecommunications system itself. On that view of the matter, for a person to record a telephone user’s voice by standing alongside him with a tape recorder is to record his communication while it is still outside the telecommunications system, not while it is passing over it. I would interpret a recording of the other person’s words, “uttered” by the loudspeaker in the same handset, in a similar way. The communication from the other end has completed its passage over the telecommunications system before the microphone of the tape recorder picks it up. Thus, in my opinion, a recording made of a telephone conversation in this fashion, externally to the equipment in the sense I have described, is not an interception of the telephone conversation within the meaning of the Interception Act. 148 Branson J came to the same conclusion in Violi v Berrivale Orchards Ltd:98 The Interception Act is of relevance in the circumstances which I am required to consider only if Mr Violi recorded a communication passing over a telecommunications system “in its passage over the telecommunications system” (s 6). As the recording made by Mr Violi of the telephone conversations between him and Mr Pumpa was apparently made by recording sound emitted from the telephone handpiece, it would appear that he did not record “a communication in its passage over [a] telecommunications system” within the meaning of the Interception Act. Rather he recorded a conversation after its passage over a telecommunication system. 149 These decisions pre-date the amendments that were made to the TIA Act through the Telecommunications (Interception) Amendment Act 2006 (Cth) (the Amendment Act). The Amendment Act was introduced following a report by Mr Anthony Blunn AO, presented to Parliament on 14 September 2005 and entitled Report of the Review of the Regulation of Access to Communications (the Blunn Report). The Amendment Act implemented a number of the recommendations made in the Blunn Report. 150 A focus of the Blunn Report, and the subsequent amendments to the TIA Act through the Amendment Act, was the regulation of access to stored communications. In addressing the regulation of these communications, the Blunn 96 R v Giaccio (1997) 68 SASR 484. 97 R v Giaccio (1997) 68 SASR 484 at 491 (Cox J, Millhouse and Perry JJ agreeing). 98 Violi v Berrivale Orchards Ltd (2000) 99 FCR 580 at [7]-[8]. -- 34 of 97 -- [2024] SASCA 82 The Court 31 Report recommended maintaining a distinction between access to ‘real time’ communications (through the interception of communications ‘passing over’ a telecommunications system) and access to ‘stored’ communications.99 Discussion of the latter included reference to not only communications that are stored on a sender’s or recipient’s computer prior to them being sent or after they have been received, but also communications that are ‘at rest’ (in the sense that they are not being automatically processed by a telecommunications system; for example, because they have reached the address from which they can be directly accessed by the receiver, or are being stored by an internet service provided). The report noted the importance to law enforcement agencies of access to stored communications, and recommended that access to them be regulated separately from access to intercepted communications.100 151 Consistently with these recommendations, the amendments made through the Amendment Act included the insertion of ss 5F-5H (which provided clarification of the scope of application of the provisions regulating the interception of communications), and the regime for access to stored communications in Chapter 3 of the TIA Act. It seems that a purpose and effect of the provisions introduced by the Amendment Act was to emphasise the distinction between communications ‘passing over’ a telecommunications system and ‘stored’ communications; with the regulation of the latter under the TIA Act confined to circumstances in which access to the stored communications required the assistance of telecommunications carriers. In the case of other stored communications, their regulation was intentionally left to the general law principles governing consent, search warrants and notices to produce.101 152 The Supplementary Explanatory Memorandum to the Bill which became the Amendment Act, after referring to the definition of “passing over” in s 5F (which defined “passing over” to commence when a communication was sent or transmitted, and to continue until it became accessible to the intended recipient), included the following: This definition ensures that communications, prior to being sent or transmitted, or which are accessible to the intended recipient are not passing over a telecommunications system and are not subject to the general prohibition on interception. Communications that are passing over the telecommunications system remain subject to the prohibition against interception. Communications that are stored communications are subject to the new prohibition against access to stored communications. Communications that are not passing over the telecommunications system and are not stored communications (because they are not accessed via the carrier) remain subject to general lawful access including consent, general search warrant, or notices to produce. 99 The Blunn Report, section 1.4, recommendations ix, x and xi. 100 The Blunn Report, section 1.5. 101 See the Explanatory Memorandum (p 6) and the Supplementary Explanatory Memorandum (p 3) to the Amendment Act. -- 35 of 97 -- [2024] SASCA 82 The Court 32 This amendment addresses concerns raised about draft emails and sent items during the Senate Committee process. 153 The subsequent decisions in Furnari v Ziegert,102 Morad v El-Ashey103 and R v Metcalfe104 all reflect this emphasis upon the prohibition against the interception of communications being confined to communications “passing over” the telecommunications system. 154 In Furnari v Ziegert, it was held that the prohibition did not extend to the recording of a telephone conversation at the point it had become accessible to one of the participants in the conversation.105 And in Morad v El-Ashey it was held that the prohibition did not extend to the respondent accessing emails that had been received at the applicant’s email address.106 155 In R v Metcalfe, the complainant had installed an application on her iPhone that enabled her to record telephone calls made by the defendant to her phone. Blokland J held that these recordings were not made in contravention of s 7(1) of the TIA Act because the relevant communications had already passed over the telecommunications system by the time they were recorded. Her Honour explained:107 In my opinion there has been no breach of the Telecommunications (Interception and Access) Act. Section 7 of that Act, in general terms, provides that a telecommunication shall not be intercepted, however, it is the interception of “a communication passing over a telecommunications system” that is the subject to the prohibition. It was not disputed that in this matter the complainant installed an application on her iPhone that records telephone conversations. Consequently, the relevant communication had already passed by the time it was recorded. That this construction is intended can readily be ascertained from consideration of the plain words of s 7, particularly when the section is read as a whole. The exceptions listed in s 7(2) of the Act are relevant to persons or circumstances likely to be engaged in an interception during the course of a telecommunication, for example, things done during the course of installation of equipment or maintenance of the telecommunications system. Those exceptions are clearly directed to persons who might otherwise be exposed to the prohibition under the Act due to incidental interceptions of the passing of a communication over the system. It may be noticed Mildren J accepted this to be the correct construction, albeit after concessions were made by both parties in R v East.108 The Telecommunications (Interception and Access) Act is directed to a different set of circumstances than those present in this matter. The Act is concerned with “carriers”, “carriage services providers” and unlawful interferences with the “passing over” of a telecommunication, or more generally with the security of the relevant telecommunication system or network, not what may occur after a telecommunication has passed. Section 5F of the Act deals with when it may be said a communication is “passing over” a telecommunications system. The communication is taken to “start passing over” when it is 102 Furnari v Ziegert [2016] FCA 1080. 103 Morad v El-Ashey [2017] FCA 1136. 104 R v Metcalfe (2018) 338 FLR 357. 105 Furnari v Ziegert [2016] FCA 1080 at [23]-[29] (Murphy J). 106 Morad v El-Ashey [2017] FCA 1136 at [41]-[46] (Kenny J). 107 R v Metcalfe (2018) 338 FLR 357 at [11]-[12] (Blokland J). 108 R v East (2003) 189 FLR 118. -- 36 of 97 -- [2024] SASCA 82 The Court 33 sent or transmitted by the person sending the communication and “is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication”. Once the communication is accessed, it is no longer regulated by the Act. The parties’ contentions 156 Before the primary judge, the defendants argued that the operation of the AN0M application and platform involved four interceptions in breach of s 7(1) of the TIA Act: 1. by User A’s device communicating its identification with the XMPP server; 2. by the creation within the AN0M application on User A’s device of the copy of the communication sent to the iBot server; 3. by the iBot server communicating with the XMPP server in order that it could receive the copy communication sent by User A; and 4. by making a record of the copy communication once received by the iBot server. 157 The primary judge rejected the defendants’ contentions in respect of each of these alleged interceptions. The first alleged interception is no longer pressed, but the remaining three are. 158 In supporting the primary judge’s conclusions and reasoning, the prosecution contends that the evidence establishes that the AN0M platform did not function so as to intercept AN0M communications within the meaning of the TIA Act. The essential reason for this is that the AN0M platform was designed to function so that any record or copy of an AN0M communication was made before or after its passage over the telecommunications system. In particular, the AN0M application was programmed to make the second or copy message within the AN0M application, and prior to the original message commencing its passage over the telecommunications system. And the retrieval software used by the AFP was programmed to retrieve the AN0M communications once they had arrived at their intended recipient (the iBot server), and had ceased passing over the telecommunications system. 159 It is appropriate to address individually each of the three alleged interceptions pressed on appeal by the defendants. Alleged interception upon creation of the copy message 160 As has been explained, when User A sent User B a communication on the AN0M platform, a copy of that communication was created on User A’s device and then sent, via the XMPP server, to the bot user account on the iBot server. The defendants argue that the creation of this copy message on User A’s device -- 37 of 97 -- [2024] SASCA 82 The Court 34 involved an interception of a communication in contravention of s 7(1) of the TIA Act. 161 There is no dispute that the creation of the copy message involved the copying or recording of a communication, and that this occurred without the knowledge of the person making the communication (User A). However, the prosecution argue that this did not occur while the communication was “in its passage over [the] telecommunications system” for the purposes of s 6(1) of the TIA Act. On the prosecution argument, the copying or recording occurred while the data representing the communication was still in the AN0M application on User A’s phone, and prior to it commencing its passage over the telecommunications system; that is, prior to it being “sent or transmitted” by User A within the meaning of s 5F(a) of the TIA Act. The primary judge’s reasons 162 In accepting the prosecution argument, the primary judge commenced by noting the requirement of s 6(1) of the TIA Act that the communication be copied “in its passage over [the] telecommunications system”, and the specification in s 5F(a) that “a communication is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication”. In his Honour’s view, the issue of whether the communication from User A was in its passage over the telecommunications system at the time it was copied required consideration of where User A’s message was located when it was copied. And, as his Honour observed, there was no dispute in the evidence that the message was copied while it was within the AN0M application.109 Further, in his Honour’s view, a messaging application did not form part of the telecommunications system, as defined in s 5 of the TIA Act, with the result that a message in the application was yet to reach the system.110 163 In relation to this last proposition, the primary judge noted that a “telecommunications system” is defined to mean a “telecommunications network” that is within Australia and hence to “include equipment, a line or other facility that is connected to such a network”; that “equipment” is defined to mean “any apparatus or equipment used, or intended for use, in or in connection with a telecommunications network, and includes a telecommunications device”; and that a “telecommunications device” is defined to mean “a terminal device that is capable of being used for transmitting or receiving a communication over a telecommunications system”. While accepting that a mobile phone would be a “terminal device” for this purpose, such that it formed part of the “telecommunications system”, the judge nevertheless considered that the evidence was not consistent with a messaging application being part of that system. His Honour explained:111 109 R v TB (No 1) [2023] SASC 45 at [99]. 110 R v TB (No 1) [2023] SASC 45 at [100]. 111 R v TB (No 1) [2023] SASC 45 at [101]-[102]. -- 38 of 97 -- [2024] SASCA 82 The Court 35 The application is separate to the phone, albeit utilising the AOS on that phone. The application must pass the data to that AOS before the message can be sent from the mobile device. It may also be observed that to find that a messaging application on a mobile phone was part of the telecommunications system would be inconsistent with the evidence of Professor Sereviratne. His evidence made plain that there was a relevant ‘boundary’ between an application and the AOS112 and a further boundary between the AOS and infrastructure comprising the telecommunications network between, and connecting, terminal devices.113 In my view, the evidence, applied to the relevant definitions in the TIAA, is only consistent with the AN0M application not being part of the telecommunications system. 164 The primary judge recognised that it was also necessary to consider the terms of s 5F(a) of the TIA Act, which provides that User A’s message commenced its passage over the telecommunications system when it was “sent or transmitted” by User A. He noted the defendants’ argument that User A’s message commenced its passage over the telecommunications system at the moment User A pressed the ‘send’ button. He rejected this argument:114 The words ‘sent’ and ‘transmitted’ are not defined in the TIAA. Given that ‘sent’ is not defined, its meaning must be determined from the text, context and purpose of the TIAA. In my view, both the text and context in which ‘sent’ appears are strongly suggestive of meaning more than the action of a person pressing a button on a phone. Section 5F(a) must be read as a whole. Section 5F(a) is directed to when a communication commences ‘passing over’. Within s 5(1) of the TIAA ‘passing over’ is defined to include ‘being carried’ and ‘carry’ is defined to include ‘transmit, switch and receive’. In my view, ‘passing over’, ‘being carried’ and ‘carry’ are consistent with the transport of a communication. Put another way, they are consistent with the movement of a communication over the ‘telecommunications system’. On my reading, ‘passing over’ is not consistent with it being enough for there to have been an act (the pressing of a send button) which, however essential to later movement, precedes any movement over a telecommunications system. Further, the pressing of the button is an act which may or may not result in that movement. As Mr Jenkins explained, a message sent without there being a connection to a carrier would not be transmitted.115 Another aspect of what must be considered in properly construing s 5F(a) is that ‘sent’ appears with the word ‘transmitted’ (i.e. – ‘sent or transmitted’). While ‘transmitted’ is not defined, as set out above, ‘carry’ is defined to include ‘transmit’. In my view, ‘transmitted’ is only consistent with the communication needing to be in its passage and the legislative intention of not capturing the copying of a communication before the communication commences that passage. 165 The primary judge drew contextual support for his construction of “sent” in s 5F(a) from a consideration of the s 5F(b) description of when the passage of a communication over the telecommunications system ceases:116 112 Prof Sereviratne T702-703; Prof Sereviratne affidavit pp10-12. 113 Prof Sereviratne T736. 114 R v TB (No 1) [2023] SASC 45 at [105]-[107]. 115 Mr Jenkins T1144. 116 R v TB (No 1) [2023] SASC 45 at [108]. -- 39 of 97 -- [2024] SASCA 82 The Court 36 Further, the meaning of ‘sent’ in s 5F(a) must be construed in the context of s 5F(b). Section 5F(b) provides that a communication is ‘taken to continue to pass over the [telecommunications] system until it becomes accessible to the intended recipient’. Read as a whole, s 5F is directed towards the carrying of the communication over the ‘telecommunications system’ and is not directed towards an act, however essential, which precedes any movement of the message onto the telecommunications system and which may, or may not, result in such movement occurring. In my view, that is also consistent with s 5H which provides that a communication ‘received by’, or ‘delivered to’ the ‘telecommunications service’ provided to the intended recipient or ‘under the control of’ the intended recipient is no longer passing over the telecommunications system. That is also suggestive of ‘sent’ in s 5F being properly construed as requiring some movement of the communication as opposed to the commission of an act (pressing send) which occurs before that movement and which may, or may not, cause the ‘passing over’ of the message to occur. 166 For these reasons, the primary judge was satisfied that the creation of a copy of User A’s message to User B within the AN0M application on User A’s device, as a result of User A pressing the ‘send’ button, was not an interception in contravention of the TIA Act.117 His Honour nevertheless added that there were some further matters that he considered were consistent with the view he had reached. 167 The first was the passage from the Supplementary Explanatory Memorandum to the amendments to the TIA Act to introduce ss 5F-5H, set out earlier. His Honour considered that this supported his construction of s 5F in that it emphasised that a communication was not subject to the prohibition upon interception unless it was “in its passage” over the telecommunications system or “passing over” that system. It supported a meaning of “sent” which related to a communication that was “passing over” over the telecommunications system, and not an action that preceded this.118 168 Secondly, the primary judge referred to authorities which had held that the TIA Act does not protect the privacy of communications once they have been delivered and received (R v Giaccio and R v Metcalfe). Noting the emphasis in these cases upon a communication’s passage over the telecommunications system ceasing once a recipient has control over the message, his Honour considered that this supported a view as to the commencement of that passage that was consistent with when the sender lost control over that message. His Honour explained:119 Put another way, once a message is in the control of the recipient, the prohibition on interception does not apply. As set out above, the question of when an ANOM communication commenced passing over the telecommunications system is governed by ss 5F-5H and the evidence about how that application worked, not by the outcomes in other cases. Nonetheless, it can be observed the construction of the relevant sections of the TIAA which I have preferred places a message yet to leave an application installed on the phone 117 R v TB (No 1) [2023] SASC 45 at [109]. 118 R v TB (No 1) [2023] SASC 45 at [111]. 119 R v TB (No 1) [2023] SASC 45 at [112]-[113]. -- 40 of 97 -- [2024] SASCA 82 The Court 37 of a sender (i.e. – a message within the control of the sender) beyond the prohibition, just as a message in the control of the recipient is also beyond the prohibition. It is the case that an individual user of the ANOM application could not stop the steps which occurred when send was pressed, but bearing in mind the evidence of Professor Seneviratne, the application had control over A’s message and that control exists for so long as the application operates in such a way that A’s message remains within the application. 169 Finally, the primary judge pointed out that a logical consequence of the defendants’ argument (to the effect that a message commenced its passage over the telecommunications system upon the user pressing the send button) was that there would be an interception even if the message were never sent to its intended recipient. His Honour doubted whether this could have been the intention of the TIA Act given that the sending or transmission of the message was defined to mark the commencement of the passage of the message over the telecommunications system:120 If the construction urged by the defendants was preferred, then a message typed on a phone (or an email typed on a computer) would be ‘intercepted’ if retrieved from that phone (or computer) even if the pressing of the send button had failed to send or transmit the message. For example, the message (or email) would be intercepted in breach of the TIAA even if the phone or computer was not connected to a telecommunications system when the send button was pressed and so no message could be sent until that connection was established. In my view, the prohibition in the TIAA is not intended to capture a message which has not left the application in which it was created, just as it does not seek to govern what can happen to a message once that same message has arrived at its destination. Analysis 170 The prosecution support the primary judge’s reasoning and conclusion. 171 The defendants challenge his Honour’s reasoning and conclusion on several overlapping bases. They contend that the primary judge’s reasoning over- emphasised the location of the relevant communication in the AN0M application at the moment that it was copied; and relied upon a false dichotomy between, on the one hand, the AN0M application and, on the other hand, AOS and the telecommunications network. Whilst the judge’s reasoning in this respect reflected the concepts and terminology used by the experts who gave evidence, the defendants contend that his Honour relied upon boundaries between the AN0M application and AOS, and between AOS and the telecommunications network, which are not reflected in the legislative text and which are, in any event, artificial. The defendants argue that, in reality, the process of sending a communication through the AN0M platform, and hence its passage over the telecommunications system, commences when User A presses the send button and triggers what is an integrated, and essentially instantaneous, process by which the message is sent to 120 R v TB (No 1) [2023] SASC 45 at [113]. -- 41 of 97 -- [2024] SASCA 82 The Court 38 User B; that is, when User A activates the send function on his or her mobile device. 172 There are several aspects of this challenge to the primary judge’s reasons which require closer examination. 173 The first is the complaint that the primary judge’s reasoning over-emphasised the concepts and terminology used in the expert evidence. It is to be accepted that the expert evidence cannot be determinative of when a communication commences its passage over the telecommunications network, or when it is sent or transmitted by the person sending it. The issue is not when an expert – or indeed a layperson – might consider that a communication has been sent, or has commenced its passage, over the telecommunications system. The issue is when the legislature provided for this to have occurred. 174 At the same time, in applying the legislative text to the operation of the AN0M platform, it is necessary to do so against a proper understanding of how that platform operates. A proper understanding of how the various aspects of the AN0M platform operate, including how they interact with each other, and with the infrastructure of the telecommunications system, is critical to an informed application of that legislative text to communications made using the AN0M platform. 175 On the face of the primary judge’s reasons, he was conscious of the need to ensure that he observed the limitations upon the assistance that might be derived from the expert evidence, and to ensure that he did not permit the experts’ evidence and terminology to usurp the role of the legislative text.121 That said, when it came to expressing his ultimate conclusions, he did rely upon the expert evidence in concluding both that there were boundaries between the AN0M application, AOS and the infrastructure forming part of the telecommunications system; and that it followed that a messaging application did not form part of the telecommunications system. In particular, he regarded the AN0M messaging application as separate from the mobile device on which it was installed, and said that it would be inconsistent with the evidence to find that it was part of the telecommunications system.122 176 There is no doubt that the expert evidence permits, indeed requires, conceptual and functional distinctions to be drawn between a user’s mobile device, the AN0M application, AOS and the infrastructure forming part of the telecommunications network connecting users’ devices. We shall return to the significance of some of these distinctions in due course. However, we have some reservations about the extent to which it can be said that there is any meaningful physical distinction between the ANOM application and AOS, and the mobile 121 R v TB (No 1) [2023] SASC 45 at [66], [72]. 122 R v TB (No 1) [2023] SASC 45 at [101]-[102]. -- 42 of 97 -- [2024] SASCA 82 The Court 39 device on which they are located; and whether it can be said that the AN0M application was not part of the telecommunications system. 177 As explained earlier, the AN0M application and AOS are both types of software. To the extent that it is meaningful to speak of them as having a physical location, our understanding is that they are stored in the memory of the relevant mobile device, and in that sense may both be said to be located on – or at least connected to – the circuit board of that device. Given that they are, for practical purposes, co-located, or at least operate by sending electrical signals through the same circuit board, we do not think it makes much sense to speak of any physical boundary between them. More importantly, given that both the AN0M application and AOS exist on the mobile device, we have some difficulty conceiving of them as having a physical existence separate from that mobile device. 178 The potential significance of this lies in the fact that the definition of telecommunications system under s 5(1) of the TIA Act includes “equipment”, which is in turn defined to include “any apparatus or equipment used, or intended for use, in or in connection with a telecommunications network, and includes a telecommunications device”. As the parties accept, this would include the mobile device used by an AN0M user (it being a “terminal device” for the purposes of the definition of a “telecommunications device”). Bearing in mind these definitions, it seems to us that there is a difficulty in describing the AN0M application as separate from the mobile device upon which it is installed, and hence as separate from the telecommunications system which is defined to include that device. In our view, the AN0M application formed part of the mobile device and thus formed part of the telecommunications system. At the very least, it was located within the mobile device and hence within the telecommunications system. 179 To this extent, our approach differs from that of the primary judge. However, even if the data which represents User A’s communication was physically located within the telecommunications system when it was copied by the AN0M application, that is not quite the issue. The issue is whether that communication was copied while it was “passing over” the telecommunications system, or after it had been sent or transmitted by User A. The physical location of the data representing a communication is not necessarily determinative of this issue. 180 In our view, there is no conceptual difficulty with the data which represents a communication being within an end system or terminal device (here, a mobile phone) which forms part of the telecommunications system prior to it commencing its passage over that system; that is, prior to it being sent or transmitted over that system. Indeed, it may even be moving within that device prior to it commencing its passage over the telecommunications system. 181 A telecommunications system is, of course, a system for sending or transporting communications between end users. Mobile phones used to send and receive communications over the telecommunications system are referred to in the legislation as terminal devices, and are defined to form part of the -- 43 of 97 -- [2024] SASCA 82 The Court 40 telecommunications system. By analogy with systems for the transport of goods or people, the terminals from which the goods or people commence or end their passage over the relevant system may be considered part of that system. But it does not follow that everything that occurs in those terminals is aptly described as occurring while the goods or people are in their passage over that system. In our view, the notion of goods or people being in passage over the relevant system invites a focus upon their movement from the place of departure to their place of arrival, and does not necessarily encompass all activity or movement within the terminals at either end of the system. 182 It is significant that a telecommunications system is defined by reference to a telecommunications network, which is in turn described as a system for carrying communications. As the primary judge observed, it is also relevant that “passing over” is defined in s 5(1) to include “being carried”; that “carry” is defined to include “transmit, switch and receive”; and that “sent” appears in combination with the word “transmitted” in s 5F(a). We agree with the primary judge that these references are textual indications of a focus upon the movement or transport of communications over the telecommunications system. 183 Certainly the dictionary definitions of both “send” and “transmit” support this focus. The Macquarie Dictionary, for example, defines “send” to mean “1. to cause to go; direct or order to go; 2. to cause to be conveyed or transmitted to a destination”; and defines “transmit” to mean “1. to send over or along, as to a recipient or destination; forward, dispatch, or convey”. 184 In our view, it is also significant that the word “carry” is used in the relevant provisions of the TIA Act to describe the transport of communications by means of electromagnetic energy. In particular, a “telecommunications system” is defined by reference to a “telecommunications network”, which is in turn defined as “a system, or series of systems, for carrying communications by means of … electromagnetic energy”. This is consistent with a focus upon the movement or transport of communications while they are in the form of electromagnetic energy (that is, as they make their way across the telecommunications system, from User A’s device to User B’s device); as opposed to any processing or activity, or even movement, which might occur within the users’ mobile devices at either end of that journey, and while the communication is in some other form. 185 It may be accepted that s 5F(a) is a deeming provision in that it provides that a communication “is taken” to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication. However, we do not think this diminishes the significance of the contextual references to which we have referred, and the focus which we have suggested they invite, when determining when a communication is “sent or transmitted”. 186 As the defendants emphasised, deeming provisions may be used by the legislature to expand the natural or ordinary meaning of a particular word or -- 44 of 97 -- [2024] SASCA 82 The Court 41 expression, including through the use of a statutory fiction.123 However, deeming provisions do not always operate in this way. A deeming provision may also be used merely to confirm, or clarify, how the legislature intended that a word or phrase should be understood.124 In our view, that is the nature of the deeming provision in the present case, with the legislature intending merely to confirm or clarify the meaning of its reference to “passing over” a telecommunications system in s 7, by describing the point at which this passage commences and ceases in ss 5F(a) and (b). Our earlier examination of the legislative history leading to the introduction of s 5F of the TIA Act supports this view. Certainly it does not provide any support for an intention to expand the notion of when a communication should be treated as passing over a telecommunications system, or to otherwise expand the reach of the prohibition against the interception of communications. 187 In any event, regardless of the manner in which a deeming provision is used, the task remains one of construing the words used in the deeming provision, in accordance with the ordinary principles and techniques of statutory construction.125 This may or may not lead to an expanded meaning of the concept the subject of the deeming provision. 188 In the context of the present case, the task therefore remains one of determining what “sent or transmitted” means, having regard to not only the ordinary meaning of those words, but also the range of contextual and purposive considerations that we have addressed. 189 It is relevant to observe that, in describing when the passage of a communication over the telecommunications system is taken to have commenced, the legislature chose two words, “sent” and “transmitted” connected through the use of the coordinating conjunction “or”. Regardless of whether “sent or transmitted” is construed as a single composite expression, or as encompassing two separate concepts, it may be accepted that the inclusion of the word “sent” was intended to do some work, or add some content of its own. That said, in circumstances where both words appear together, with the meaning of each informed by the other,126 and by the broader contextual considerations we have addressed, it is not surprising that there is considerable overlap,127 with each word apparently doing no more than bringing some additional emphasis in determining 123 Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696 (Griffith CJ). 124 Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65-67 (Windeyer J); Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 at 207 (Gleeson CJ); Lesi v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 27 at [41] (Mansfield, Selway and Bennett JJ). 125 Newcastle Airport Pty Ltd v Chief Commissioner of State Revenue (2014) 99 ATR 748 at [55]-[56] (White J); Ellison v Sandini Pty Ltd (2018) 263 FCR 460 at [210]-[213] (Jagot J, Siopis J agreeing); Holdsworth v Commissioner of Police, New South Wales Police Force [2020] NSWSC 228 at [41] (Beech-Jones J). 126 Deputy Commissioner of Taxation v Dick (2007) 226 FLR 388 at [10]-[13] (Spigelman CJ). 127 Sarkis v Morrison [2013] NSWCA 281 at [34]-[35] (Basten JA) (“The law is littered with examples of two expressions being used when one would do.”); Saravinovski v Saravinovska [2017] NSWCA 85 at [33]-[34] (Leeming JA, Beazley ACJ agreeing); Nature’s Care Manufacture Pty Ltd v Australian Made Campaign Ltd (2018) 263 ALR 717 at [32]-[34] (Perram J). -- 45 of 97 -- [2024] SASCA 82 The Court 42 what the legislature intended would mark the commencement of a communication’s passage over the telecommunications system. It may be that whilst the word “transmitted” plainly connotes the movement of a communication, the word “sent” was included to ensure that the composite expression “sent or transmitted” encompassed the start of that movement. In any event, read contextually in the manner we have indicated, the words “sent” and “transmitted” both suggest a focus upon the movement or transport of the communication over the telecommunications system. 190 A focus upon the movement or transport of communications over the telecommunications system is also consistent with the distinction drawn in the TIA Act between the interception of communications passing over the telecommunications system, and access to communications which are stored on an end user’s device, or on the equipment of a carrier. The intention to separately regulate stored communications makes it plain that copying or recording these communications does not involve the interception of communications passing over the telecommunications system, despite the communications being located on equipment that may be defined as part of the telecommunications system. 191 Bearing in mind these definitional provisions, and the idea that a telecommunications system is intended to facilitate communications between end users of that system, it seems to us that the notion of a communication “passing over” the telecommunications system entails a communication being in movement on its journey from the sender’s device to the recipient’s device. It commences that passage when it is sent or transmitted, in the sense that it commences its movement on its journey towards its intended recipient. 192 Understood in this way, it is conceivable, and perhaps to be expected, that there will be activities or steps which occur while the data representing a communication is physically within the telecommunications system, and which may be directed towards its passage over the system, but which are nevertheless preparatory to, and prior to the commencement of, that passage; that is, activities or steps which occur prior to the communication being sent or transmitted. This contemplation, and exclusion, of earlier preparatory steps is consistent with the use of the past participles “sent” and “transmitted”. In the case of the word “sent”, the use of the past participle tends to support the notion that, to the extent that there is a process involved in sending a communication, the focus is upon the completion of that process. 193 On the expert evidence adduced before the primary judge, pressing the send button, or activating the send function, triggered a series of sequential operations or steps in relation to the relevant communication or message. As detailed earlier, the first of these involved carrying out performance checks to determine whether the XMPP server was online.128 Prof Seneviratne described this as the connection phase, involving a ‘handshake’ that established the connection between the two 128 Mr Khatri T902-903, T905, affidavit [92]-[103]. -- 46 of 97 -- [2024] SASCA 82 The Court 43 end systems (the AN0M device and the XMPP server), and authenticated the transmitter and receiver.129 Despite the send button having been pressed, and despite the connection process involving the movement of data through the various layers of the device, it is difficult to see how it could be said that the message composed by User A had been sent or transmitted prior to the relevant connection having been established. It seems appropriate to describe this step as one that was preparatory to the message or communication commencing its passage over the telecommunications system; indeed, it was a step intended to establish the connection necessary for that passage to occur. 194 Yet it was at this (early) stage in the process that a copy of the original communication or message was made by the AN0M application. The content of the second or copy message included the original message, but with additional data added to it. That additional data was obtained from other locations within the device, and involved the transfer of data via AOS. However, the data representing the original message and copy message remained within the application layer of the device. This is consistent with the experts’ evidence to the effect that the copy message was created whilst the data representing the original message was still in (that is, being processed by) the AN0M application. 195 The next step in the process was the encryption of both the original and copy messages. As Mr Khatri explained, the process of encryption itself involved the several discrete steps described earlier in these reasons.130 Once again, it is difficult to see how it could be said that the original message composed by User A had been sent or transmitted prior to this process of encryption having occurred. The process of encryption is more aptly described as a step that was preparatory to the message being sent or transmitted, and hence commencing its passage towards its destination. Yet, by this point in the process, the relevant copy had already been made. 196 It was only after the encryption of both the original and copy messages that the data representing these messages commenced to move from the application layer, and through what the experts referred to as a ‘socket’ to the operating system, AOS. The encrypted data then moved through the transport, network and data link layers towards the physical layer of the device. Various processes occurred as the data moved through these layers. For example, it was in the transport layer that the TLS (or secure ‘pipe’) through which each of the messages was to be sent was created. And it was in the network layer that the data representing each message was given the unique IP address of its intended destination. Whilst the encrypted data might be said to have commenced to move at this point, the steps mentioned – being directed towards securing and routing the passage of the data – are, once again, more aptly described as steps which were 129 Prof Seneviratne T725. 130 Mr Khatri T902-903, affidavit [92]-[103]. -- 47 of 97 -- [2024] SASCA 82 The Court 44 preparatory to the message being sent or transmitted to its destination, rather than steps taken after it had commenced that passage. 197 It was only after all of this had occurred that the encrypted data then passed through to the physical layer of the device. And only then did the data undergo a conversion into an appropriate form of electromagnetic energy, leave the device through a wifi or cellular data connection to the internet, and commence to travel through the telecommunications network to the XMPP server and then to its ultimate destination. Given the centrality of carriage by means of electromagnetic energy to the definitions of a telecommunications network and system, it is difficult to see how the data representing a communication can be said to have been sent or transmitted, and hence to have commenced its passage over such a system, prior to it undergoing that conversion into electromagnetic energy. 198 We acknowledge that the word “communication” is defined in s 5(1) of the TIA Act in terms which includes “signals”, and that the word “signal” can be used in a sense which is broad enough to encompass the movement of data in not only an electromagnetic form, but also as an electrical current. But in the context of the TIA Act, and in particular in determining the meaning of “sent or transmitted” over a telecommunications system for the carriage of communications by means of electromagnetic energy, we do not accept that this potential breadth in the meaning of the word “signal” assists the defendants. We do not think it detracts from the significance of the communication being converted from its digital or electrical form into the form of electromagnetic energy for passage over the telecommunications system. Whilst the communication might earlier exist in some other form contemplated by the definition of “communication” (such as speech, music, text, image, data or signal), we do not think it can be said to have been sent or transmitted over a telecommunications system until it has undergone a conversion into a form suitable for passage over that system; that is, until it has undergone a conversion into electromagnetic energy. 199 Approached in this way, we do not think that it can be said that the relevant communication was sent or transmitted, or otherwise began its passage through the telecommunications system, at the moment the user pressed the send button or activated the send function on that user’s mobile device. Whilst that triggered or commenced the process by which that communication was ultimately sent, there was a series of steps that occurred within the mobile device prior to that occurring. 200 In our view, the data representing a communication over the AN0M platform was not sent or transmitted, and hence did not begin its passage over the telecommunications system, until it reached the point in the process at which it had passed through the socket from the application to AOS, had progressed to the physical layer, and was despatched for transmission, by means of electromagnetic energy, through the internet and across the infrastructure of the telecommunications system towards its ultimate destination. It was only at that point that it commenced to be carried by means of electromagnetic energy over the telecommunications system, and hence that it was “sent or transmitted” over that -- 48 of 97 -- [2024] SASCA 82 The Court 45 system. That said, it is not necessary for the purposes of these proceedings to pinpoint precisely when, in the process we have described, the relevant communications commenced to pass over the telecommunications system. It is enough to conclude, as we have, that this occurred at some point after the copy messages had been created on User A’s device. 201 To the extent that deeming provisions such as s 5F are sometimes intended to bring a degree of certainty that might not otherwise exist, we do not accept that the defendants’ construction would provide significantly greater certainty than the construction we have suggested. It is true that it may be difficult for a lay person to understand precisely when, in a technical sense, a communication has undergone a conversion into electromagnetic energy so as to commence its passage over the telecommunications system. However, determining precisely when a send function on a user’s mobile device has been activated may, depending upon how the software on that device is programmed, involve similar difficulties for a lay person. Even on the defendants’ approach, the sending of a communication will not always coincide with a human user’s act of pressing a button or icon on their mobile device. Depending upon how the software in the device has been programmed, there may be some delay, or some other interaction with, or process within, that device before it can be said that the send function (being a process that leads inexorably to the message being sent) has been activated. 202 The defendants emphasise the integrated, and essentially instantaneous, nature of the process that occurred between the user pressing the send button and the data representing that communication leaving the physical layer of a user’s mobile device. It may be accepted that each of the steps involved in the process occurred within a very short period of time; indeed, within a period of time which was so short that it is difficult for the human brain to comprehend. It may also be accepted that the steps involved the multi-directional movement of data or signals between the various layers of the device before the data representing the communication arrived in the physical layer for conversion and transmission. On the other hand, there is also no dispute that each of the steps described was conceptually distinct, and occurred in a sequential manner. In that sense, there is no dispute that the data representing a communication was copied prior to various other steps occurring in relation to that data. Understood in this way, the integrated and essentially instantaneous nature of the process does not stand in the way of the conclusion we have reached to the effect that the copying or recording of the communication occurred prior to the point at which it was sent or transmitted, and hence prior to it commencing its passage over the telecommunications system. 203 Further, it is relevant to consider, as the primary judge did, that pressing the send button, and activating the send function, did not inevitably result in the message being sent or transmitted – or passing over the telecommunications system – to its intended recipient. We have mentioned earlier the evidence of Mr Jenkins and Mr Khatri to the effect that messages could be composed and ‘sent’ without the user’s device being connected to the internet. Even if a connection was necessary for the authentication step described by the experts, it does not seem, -- 49 of 97 -- [2024] SASCA 82 The Court 46 on the evidence, that a connection (or a continuation of the connection) was necessary for the user to compose and ‘send’ their message (in the sense of preparing the message and then pressing the send button or activating the send function). A message that was ‘sent’ in these circumstances would commence to be processed, but would then remain in the temporary memory of the device unless and until an internet connection was established (or re-established, if it had simply ‘dropped out’). 204 On the defendants’ argument, it would seem that even if there was no connection to the internet, or the operation of the application was interrupted in some way, so that the message never left User A’s mobile device, and indeed was never converted to electromagnetic energy, there would nevertheless be an unlawful interception were a copy of that message made after the send button had been pressed. It seems unlikely that this would have been intended to be an interception under the TIA Act. It seems analogous to the situation of the draft email which the Supplementary Explanatory Memorandum to the Amendment Act suggests was not intended to be treated as a communication passing over the telecommunications system. 205 The defendants contest whether the evidence went as far as establishing that messages which were ‘sent’ while there was no connection to the internet were copied. They also contend that, even if that were the case, there was no reason to think that the AN0M communications the subject of these proceedings were composed or ‘sent’ at a time when there was no internet connection. 206 As to the first of these matters raised by the defendants, Mr Khatri’s evidence was that upon the send button being pressed, the application would commence to process the message into data packets in the shape or protocols necessary for transmission to the XMPP server, even if there was no internet connection.131 Whilst he did not expressly mention a copy of the message being made, that would seem to be the implication of his evidence, given his description of the sequence of steps involved in the process which occurred following User A pressing send. But even if the evidence did not quite go this far, we do not think it matters. The point being made is simply that pressing the send button, or activating the send function, did not necessarily result in the message leaving User A’s device, making it unlikely that this action was intended to mark the commencement of the message’s passage over the telecommunications system. 207 Nor does the second matter raised by the defendants undermine the point being made. The fact that the messages the subject of these proceedings were ultimately sent over the internet – and may well have been composed and ‘sent’ by User A whilst an internet connection was in place – does not gainsay the proposition that pressing the send button did not necessarily result in the message leaving User A’s device. 131 Mr Khatri T972-973. -- 50 of 97 -- [2024] SASCA 82 The Court 47 208 In our view, the considerations we have mentioned support a construction of the relevant provisions of the TIA Act which focuses upon the movement of the communication towards its intended recipient, rather than the physical action of the user in pressing the send button and activating the send function on his or her device. As the primary judge held, they support a construction of the reference to “sent or transmitted” in s 5F(a) of the TIA Act which requires some movement of the communication towards its intended recipient, as opposed to the commission of an act (pressing send) which is essential to that movement, but which occurs before that movement and which may, or may not, result in that movement occurring. 209 The defendants emphasise that s 5F(a) provides that a communication starts its passage over the telecommunications system when it is sent or transmitted “by the person” sending the communication. The defendants contend that this reference to the person sending the communication invites a focus upon some action by the human being sending the communication, and that in the context of the present case this invites a focus upon User A’s act in pressing the send button or trigger. In our view, this is to make too much of the reference to the “person” sending the communication. We do not think the reference to the person sending the communication is intended to require that there be some human action, as opposed to some fact or event that occurs in User A’s device, that marks the commencement of a communication’s passage over the telecommunications system. When used in Commonwealth legislation, the reference to a person does not necessarily connote a human being, as opposed to a body politic or corporate.132 But quite apart from this, it seems to us that the reference to the person sending the communication in s 5F(a) is intended merely to invite a focus upon the sending activity, just as the reference in s 5F(b) to the intended recipient is intended to invite a focus upon the receiving activity. We do not think either is intended to be confined to action by a human being, as opposed to some technical event in the device or equipment used to send or receive the relevant communication. Whilst the sending or transmission of a communication would generally be preceded by some human action, that is not to say that the reference to “sent” or “transmitted” in s 5F(a) must be to the act of a human being as opposed to some fact or event in that person’s device. It is plain that s 5F(b) may be satisfied by a technical event rather than any human action, and it would be to introduce a peculiar asymmetry were s 5F(a) to be construed otherwise. As such, we do not think that the reference to the person sending the communication in s 5F(a) is a significant contextual indication in favour of the defendants’ construction of that provision. 210 We would also observe that the defendants’ argument does not seem to address when and how the second or copy message created through the AN0M application was sent or transmitted, or otherwise commenced its passage over the telecommunications system. The expert evidence was to the effect that the copy message underwent the same process in terms of it being encrypted and packaged, and moving through the socket from the application to AOS and then progressing 132 Acts Interpretation Act 1901 (Cth), s 2C. -- 51 of 97 -- [2024] SASCA 82 The Court 48 towards the physical layer of User A’s device, before ultimately being sent via the XMPP server to its destination. But the copy message cannot have been sent when User A pressed the send button, because it did not exist at that point in time. The better view seems to us to be that, like the original message, the copy message was sent or transmitted, and hence commenced its passage over the telecommunications system, at some later point in the process – most likely as it moved from the physical layer of the device and was converted into electromagnetic energy for transmission towards its destination. 211 In our view, the above analysis and conclusion is also supported by the broader considerations that the primary judge addressed towards the end of the relevant section of his reasons, as summarised earlier. 212 In particular, it is supported by the broader contextual consideration that the cessation of a communication’s passage over the telecommunications system occurs when it becomes “accessible” to the intended recipient (s 5F(b)), with a communication defined as “accessible” to its intended recipient once it has been received by, or delivered to, the telecommunications service provided to the intended recipient, or is under the control of the intended recipient (ss 5H(1)(a)-(c)). As the primary judge noted, the notion that a communication ceases its passage once it is under the control of the recipient user (User B) provides some contextual support for treating the point at which User A loses control of the communication as relevant in determining the point at which that communication is sent or transmitted, and hence at which it commences its passage over the telecommunications system. As Prof Sereviratne explained, although an individual user of the AN0M application could not stop the process which occurred once the send button was pressed, the application (and the other software on User A’s device) nevertheless retained control over the communication while it was being processed within, and in accordance with, the application. The application could be programmed, for example, so that it waited a specified period of time before sending a particular communication, so that it required some further step to occur before sending that communication, or indeed so that it did not send that communication at all. There is force in the primary judge’s view that the TIA Act was not intended to capture a copy of a message made while it is still within, in the sense of being processed by, the application through which it was composed and created.133 The data representing the message remained within the control of User A, or at least the application and other software on User A’s device, up to at least the point where it was in the physical layer and converted into electromagnetic energy for transmission towards its destination. 213 We also observe that it follows from the legislative prescription as to when the passage of a communication over the telecommunications system ceases, that it ceases while the communication is still located within the telecommunications system (given that that system is defined to include User B’s mobile device). By reason of ss 5F(b) and 5H, the passage of a communication ceases prior to it 133 R v TB (No 1) [2023] SASC 45 at [113]. -- 52 of 97 -- [2024] SASCA 82 The Court 49 making its way from the physical layer of User B’s mobile device, and through the various other layers of that device, to the point where it is able to be read by User B. In our view, the fact that the legislation contemplates that this activity within the telecommunications system will occur after the passage of that communication has ceased is a further answer to any suggestion of incongruity in our earlier conclusion that the equivalent activity within the telecommunications system while the communication remained in User A’s mobile device occurred prior to the communication commencing its passage over that system. 214 Stepping back for a moment, we acknowledge that the conclusion we have reached may, to some, lack intuitive appeal. It may be seen as permitting the unlawfulness of the copying of a communication between mobile phone users to turn upon the precise way in which that copying occurs, and to turn upon distinctions which are not only fine and technical in nature, but also meaningless from an ordinary user’s point of view. From an ordinary user’s point of view, the copying of their communication is just as much an affront to their privacy whether that occurs within their mobile device but while the data representing that communication is being processed in preparation for transmission (not an interception), or as the data representing that communication leaves the physical layer of the mobile device and commences to pass over the communications network towards its intended recipient (an interception). 215 However, the answer to this concern lies in an appreciation that the purpose of the relevant provisions of the TIA Act is not a blanket protection of the privacy of communications between users of the telecommunications system. As outlined earlier, the purpose of the TIA Act prohibition against the interception of communications is narrower than this. It is concerned to protect the integrity of the telecommunications system, and hence the privacy of communications in their passage over this system, rather than the integrity of users’ devices, or the privacy of their communications, in some more general or absolute way. As the authorities to which we have referred acknowledge, this presupposes that there may well be points in the process by which communications are made and transmitted during which the privacy of the communications is not protected; that is, both before the communications commence their passage over the telecommunications system, and after they have completed that passage. Once it is accepted that lines or boundaries must be drawn around the passage of communications over the telecommunications system, with the issue being merely where they are to be drawn, it seems to us that any unease about the result we have reached tends to dissipate. 216 Although allowance must be made for the difference in the legislative schemes, some support for the approach we have suggested may be drawn from the reasons of the Court of Appeal of England and Wales in R v A, B, D & C.134 In addressing whether evidence extracted from a mobile phone involved an interception, the Court held that the relevant communication did not commence its 134 R v A, B, D & C [2021] 2 WLR 1301. -- 53 of 97 -- [2024] SASCA 82 The Court 50 transmission by means of a telecommunications system when the user pressed ‘send’. As Lord Burnett of Maldon CJ, who delivered the judgment of the Court of Appeal, explained:135 We do not accept that transmission of the communication started when the user pressed “Send”. That was an action which caused the device to prepare the message in its final form and then to initiate the process of transmission. A mobile phone is a computer and a transmitter. Transmission takes place after the communication has been put into its final form by the computer. In the present case that includes the encryption. That takes place after the user presses “Send”, but before the message is transmitted by the device. On receipt by the recipient’s device it is decrypted in the RAM and it may be that in some cases a nickname is added to that which has been transmitted which is stored in the Realm database on that device. We consider that the transmission is complete when the communication arrives on the receiving device so that the device can begin work decrypting it and making it legible. Even in this unusual type of system, the transmission occurs, in relation to each communication, when a device is in contact with the rest of the system for the purpose of sending or receiving a communication, and when the communication is travelling through other parts of the system. Alleged interception through the iBot server’s listening activity 217 The defendants argue, as they did at first instance, that the iBot server’s communications with the XMPP server (referred to as its ‘listening activity’), in order that it could receive the communications sent to it, involved an interception of those communications in contravention of s 7(1) of the TIA Act. 218 In support of this argument, the defendants rely upon the evidence to the effect that the iBot application was constantly pushing messages to the XMPP server and then retrieving messages from that server. They submit that the iBot application’s activity involved it pushing, listening for and then receiving recorded messages while they were in their passage over the telecommunications system. 219 The primary judge succinctly rejected the defendants’ argument that this activity involved an unlawful interception. His Honour accepted that the iBot application communicated with the XMPP server; that the ‘pushing’ and ‘receiving’ occurred over a telecommunications system; and that these activities related to the receipt of messages which were addressed to the bot user and which were passing over the telecommunications system.136 However, his Honour did not accept that these activities involved recording those messages in their passage over the telecommunications system.137 His Honour explained:138 On the evidence before me, it may be doubted it is appropriate to find that the ‘listening activity’ is a ‘communication’ within the meaning of that term in s 5(1) of the TIAA, but that is unnecessary to decide. Assuming the ‘listening activity’ to be a communication, the prohibition in the TIAA is on recording such a communication. Just as any ‘communication’ involved in the authentication process … was not a communication which 135 R v A, B, D & C [2021] 2 WLR 1301 at [64] (Lord Burnett of Maldon CJ, Edis LJ and Whipple J). 136 R v TB (No 1) [2023] SASC 45 at [115]. 137 R v TB (No 1) [2023] SASC 45 at [116]. 138 R v TB (No 1) [2023] SASC 45 at [117]. -- 54 of 97 -- [2024] SASCA 82 The Court 51 was recorded in its passage (or otherwise), this ‘listening activity’ is not something which was recorded. It is also not a communication sought to be led in evidence. 220 No basis for impugning this reasoning and conclusion was advanced before this Court. 221 Insofar as the communication said to have been intercepted was the iBot server’s ‘communication’ with the XMPP server, his Honour’s reasoning and conclusion are sound. Even if the ‘listening activity’ described in the evidence (summarised earlier) involved a communication within the meaning of s 5(1) of the TIA Act, it was not recorded and is, in any event, not a communication which is sought to be led in evidence against the defendants. 222 Insofar as the defendants’ submissions might have been directed towards an argument that the ‘listening activity’, and receipt of messages, by the iBot server involved an interception of those messages (being communications sent from User A’s mobile device), we would also reject that argument. Whilst referred to as ‘listening activity’, the activity involved no more than seeking to identify messages received by the XMPP server that were addressed to the bot user at the iBot server, and facilitating the receipt of those messages. The activity did not involve recording or copying those messages. Nor did it involve listening to (as opposed to ‘listening out for’, in the sense of seeking to identify) those messages. There was no interaction at all with the content of those messages, which remained encrypted at that point in the process. The messages were simply identified and directed to the iBot server for their receipt. Alleged interception of the communications received by the iBot server 223 Finally, the defendants also argue that the activity of the iBot server in storing the communications it received via the XMPP server in a database, and then re- transmitting them to the AFP servers in Sydney, involved an interception of those communications in contravention of s 7(1) of the TIA Act. 224 The primary judge rejected this argument on the basis that, by the time the communications reached the iBot server, they were no longer in their passage over the telecommunications system. This was because, by that time, they had become “accessible to the intended recipient” – this being the point in time at which the passage of those communications over the telecommunications system came to an end under s 5F(b) of the TIA Act. On the primary judge’s reasoning, and applying the definition in s 5G of the TIA Act, the “intended recipient” was the iBot server to which the communications had been addressed, or at least the operator of that server. 225 At first instance, and before this Court, the defendants argued that the iBot server could not be the intended recipient because it was not a recipient that had been intended by User A. In rejecting this argument, the primary judge considered it irrelevant that User A was not aware that a copy message had been made or sent -- 55 of 97 -- [2024] SASCA 82 The Court 52 to the iBot server. The critical point was that the copy message had been addressed to that server:139 It must be accepted that the bot user and iBot server were unknown to A and that A did not know the copy of the message was being made or sent. In my view, those things are irrelevant. I do not construe s 5G as making the subjective belief of the person sending a communication relevant to the identification of ‘intended recipient’. To the contrary, s 5G identifies the intended recipient by the address. In this case, the communication was addressed to the bot user ([email protected]) (the iBot server). 226 The primary judge went on to reason that there was no difficulty with the intended recipient under s 5G of the TIA Act being a server, or at least the operator of a server. He relied in this respect upon the decision of Perram J in Voxson Pty Ltd v Telstra Corporation Limited (No 10),140 concluding:141 As can be seen, Perram J found that a communication addressed by means of an IP address to the operator of a proxy server satisfied s 5F(b). Namely, that it was a communication addressed to a person who is not an individual. In my view, that is the appropriate conclusion in this case. The evidence is the username was ‘[email protected]’ and the iBot was a server running the AN0M application. The server was the device on which the communication was received. I do not understand it to be in dispute that server was controlled by a person. In my view, an ‘intended recipient’ was the server running the iBot application, that server being controlled by a person. 227 The primary judge then addressed when the relevant communication (the copy message) became “accessible” to the operator of the iBot server within the meaning of s 5H(1) of the TIA Act. In his view, all three limbs of s 5H(1) were satisfied:142 In my view, given the iBot server was an ‘intended recipient’, all three limbs of s 5H(1) are satisfied. Once the communication arrived at the iBot server: it had been received by the telecommunications service provided to the intended recipient; was under the control of the intended recipient (e.g. – it was able to be decrypted and saved);143 and had been delivered to the telecommunications service provided to the intended recipient. 228 For these reasons, the primary judge concluded that, once the communication addressed to the bot user arrived at the iBot server, it was no longer passing over the telecommunications system. Anything done with respect to that communication from the moment it arrived at the iBot server was not an interception in contravention of s 7(1) of the TIA Act.144 229 In their submissions before this Court, the defendants challenge the primary judge’s reasoning in several respects. They challenge his Honour’s reliance upon Voxson Pty Ltd v Telstra Corporation Limited (No 10), contending that that case is distinguishable from the present case on the basis that the server recipient in that 139 R v TB (No 1) [2023] SASC 45 at [121]. 140 Voxson Pty Ltd v Telstra Corporation Limited (No 10) [2018] FCA 376. 141 R v TB (No 1) [2023] SASC 45 at [123]. 142 R v TB (No 1) [2023] SASC 45 at [125]. 143 Mr Jenkins T1112, T1067. 144 R v TB (No 1) [2023] SASC 45 at [126]. -- 56 of 97 -- [2024] SASCA 82 The Court 53 case had been selected as the recipient by the persons making the communications. The defendants contend that the present case, on the other hand, involved a situation in which the person sending the message (User A) did not intend or know that a copy of their message, intended for User B, had been made and directed to a different recipient. 230 The defendants argue that in the authorities in which the concept of an “intended recipient” has been addressed, it has been understood as referring to the target or recipient of the message selected by the user sending the original message;145 and not a recipient whose address was selected by a third party covertly capturing and forwarding the communication to that address. They argue that it would make a mockery of the protection against the interception of communications provided for in the TIA Act if “intended recipient” were construed to permit covert activity in the absence of a warrant merely because it involved redirecting a communication to another recipient. They argue that if the primary judge’s approach were correct, then it is doubtful an interception warrant would ever be required under the TIA Act because a communication could instead be covertly redirected to another recipient. 231 Finally, the defendants also argue that their construction of “intended recipient” would be coherent with the statutory scheme. They rely in this respect upon the reference in s 6(1) of the TIA Act to interception “without the knowledge of the person making the communication”, and contend that this reinforces that the “intended recipient” should be construed as the target or recipient selected by the person making the communication (User A), and not by the covert act of a third party. 232 In answering the defendants’ submissions, the first point to make is that the primary judge did not rely upon Voxson Pty Ltd v Telstra Corporation Limited (No 10) in support of his conclusion that the intended recipient could be a recipient other than one selected by the user who made or sent the communication. Rather, he relied upon it merely as support for the proposition that the intended recipient of a communication may be a server, or at least the operator of a server. We do not understand this proposition to be contested. 233 In taking the next step, and holding that the intended recipient of the copy messages in the present case was the iBot server, despite User A being unaware of its existence, and unaware of its selection as the addressee of the copy message, the primary judge relied not upon authority, but upon his construction of s 5G. He construed this section as identifying the intended recipient of a communication not by reference to the subjective belief of the person sending the communication, but rather by reference to the address to which the communication was sent. 234 In our view, the primary judge was right to approach the meaning of “intended recipient” in this way. The identity of the “intended recipient” is 145 Referring to Furnari v Ziegert [2016] FCA 1080 at [28] (Murphy J). -- 57 of 97 -- [2024] SASCA 82 The Court 54 determined by reference to s 5G, and the terms of that section indicate an intention that it be determined by reference to the address to which the communication was directed. Whilst the address might ordinarily be known to, and selected by, the person who composed and sent the relevant communication, we see no basis in the legislative text or otherwise for confining the notion of “intended recipient” in this way. 235 Certainly we do not think the “intended recipient” of a communication could have been intended to be confined to the recipient subjectively intended by the person who composed or sent the communication. For example, if User A intended to send a message to User B but mistakenly entered the phone number of User C, it seems unlikely that the intended recipient of this message would be User B rather than User C. At the very least, the notion of the intended recipient would seem to contemplate an objective, rather than subjective, consideration of the recipient selected by User A. It is only a short step from this to accept that determination of the intended recipient involves an objective consideration of the address attached to a message when it is sent by User A, rather than requiring that it involve an address personally selected by User A in some way. 236 Turning to the AN0M communications, there is no reason to doubt that the intended recipient of the original message was User B. User A intended to select this recipient, and the AN0M application ensured that the address of User B’s device was attached to the data representing the original message when it was sent from User A’s device. 237 In the case of the second or copy message, User A did not subjectively intend, or otherwise personally select, any address. User A could not have done so in any meaningful sense as he or she did not know of the existence of the copy message created by the AN0M application. At the same time, it would seem non-sensical to suggest that the intended recipient of that copy message was either User B or non-existent. It seems to us that a message must have an intended recipient for it to be sent. And in circumstances where the process through which the copy message was created and sent resulted in the address of the bot user being taken from User A’s contact list, and attached to the message, it seems to us that the bot user (or at least the operator of the iBot server where the address of the bot user was located) must be taken to have been the intended recipient of that message. 238 We can see no difficulty with the intended recipient being determined by reference to the address attached to a particular communication at the point it is sent or transmitted. In our view, this would be consistent with the terms of s 5G, and would not produce any difficulties which might suggest it is an unlikely intention to attribute to Parliament. We do not think it matters that the address may be determined through a process dictated by an application, or software, operating on User A’s device, rather than an address personally selected by User A. If the address is determined prior to the communication being sent or transmitted, and hence prior to the communication commencing its passage over the telecommunications system, then there will not have been any covert diversion -- 58 of 97 -- [2024] SASCA 82 The Court 55 of a communication in circumstances that would otherwise involve an interception that would be unlawful in the absence of a warrant. 239 Different issues would arise were the address of a communication to be altered after it had been sent or transmitted (for example, through the covert intervention of a third party). It is not necessary to determine whether the relevant address of a communication, and hence the identity of its intended recipient, may be altered after it has been sent. While we are inclined to think that this would be impermissible, it is sufficient for present purposes that we have concluded that the copy messages sent through the AN0M platform to the iBot server were addressed to the bot user at the iBot server when they were created and sent, and that the intended recipient of those messages was the operator of that server. It follows that the copy messages were “accessible to the intended recipient” when received by the iBot server, and that any recording or copying of the messages after that point in time did not involve any interception in contravention of s 7(1) of the TIA Act. Conclusion 240 For the reasons set out, we agree with the primary judge that none of the alleged interceptions have been established. It is not alleged that any further recording or copying of the communications in question involved any breach of the TIA Act. It follows that it has not been established that the AN0M platform involved an interception of the AN0M communications in contravention of s 7(1) of the TIA Act. 241 The first two questions reserved for this Court’s consideration should be answered as follows: Question 1: No Question 2: Does not arise. PART C: VALIDITY OF THE MCO AUTHORISATIONS 242 As mentioned in our earlier summary of the genesis of the AN0M platform, the AFP’s conduct in relation to the AN0M platform formed part of a covert operation, referred to as Operation Ironside, conducted pursuant to two MCO authorisations obtained by the AFP under Part IAB of the Crimes Act. 243 The first authorisation was granted by Deputy Commissioner Gaughan of the AFP on 25 September 2018 (MCO No. 1).146 It was subsequently varied on 11 occasions, with the consequence that it remained in force until 23 September 2020. The second authorisation was granted by Deputy Commissioner McCartney of the AFP on 25 September 2020 (MCO No. 2), and was subsequently varied on four occasions, with the consequence that it remained in force until 24 June 2021. Both 146 Noting that the case stated mistakenly refers to the authorisations as dated 25 October 2018 and 25 October 2020. -- 59 of 97 -- [2024] SASCA 82 The Court 56 authorisations were granted pursuant to the power contained in s 15GI of the Crimes Act, with the variations made under ss 15GQ and 15GV of that Act. 244 By interlocutory application filed on 3 February 2023 (FDN 227), the defendants sought orders declaring the MCO authorisations invalid on various grounds, and seeking the exclusion of evidence obtained in the course of Operation Ironside (in particular, the evidence of the AN0M communications obtained through the operation of the AN0M platform pursuant to those authorisations). It was argued, amongst other things, that the authorisations disclosed errors on their face or were otherwise affected by jurisdictional error. 245 For reasons published on 11 August 2023,147 the primary judge dismissed the defendants’ interlocutory application. His Honour concluded that the MCO authorisations complied with the requirements of ss 15GI and 15GK of the Crimes Act and did not contain errors on their face. His Honour also rejected the other challenges to the validity of the authorisations, including on the grounds of misconstruction of law and legal unreasonableness. 246 Question 3 of the questions reserved on 25 September 2023 requires consideration of whether the two MCO authorisations were invalid by reason that they were predicated upon a misconstruction of the applicable statutory criteria in ss 15GI and 15GK of the Crimes Act. 247 The essence of the defendants’ argument in support of invalidity is that s 15GI(2) required that the authorising officer be “satisfied on reasonable grounds” of the various matters set out in ss 15GI(2)(a)-(h), whereas on the face of the authorisations, the authorising officer in each case only purported to be satisfied “by information given to me” of those matters. On the defendants’ argument, these words on the face of the authorisations disclosed jurisdictional error in that the authorising officers had misconstrued and misapplied the statutory test. The authorisations and MCOs were, as a consequence, invalid and a nullity. 248 The precise terms of Question 3 are as follows: Question 3 In respect of Interlocutory Application [FDN 227] filed by the defendants on 3 February 2023, on the evidence identified in R v TB (No 5) [2023] SASC 118: 1. is MCO No. 1 invalid because it misstates the statutory criteria that were mandatory considerations under section 15GI(2) of the Crimes Act (facial invalidity) and thereby manifests that Deputy Commissioner Neil Gaughan acted on a misconstruction of the applicable statutory criteria in ss 15GI and 15GK of the Crimes Act (misconstruction of the law)? and/or 147 R v TB (No 5) [2023] SASC 118. -- 60 of 97 -- [2024] SASCA 82 The Court 57 2. is MCO No. 2 invalid because it misstates the statutory criteria that were mandatory considerations under section 15GI(2) of the Crimes Act (facial invalidity) and thereby manifests that Deputy Commissioner [Ian McCartney] acted on a misconstruction of the applicable statutory criteria in ss 15GI and 15GK of the Crimes Act (misconstruction of the law)? The authorisation of MCOs under the Crimes Act 249 Part IAB of the Crimes Act regulates the conduct of controlled operations. 250 As summarised in s 15G of the Crimes Act, the main objects of Part IAB are: (a) to provide for the authorisation, conduct and monitoring of controlled operations; and (b) to exempt from criminal liability, and indemnify from civil liability, law enforcement officers, and certain other persons, who, in the course of an authorised controlled operation, take part in the commission of a criminal offence or in conduct that may attract civil liability. 251 Further, s 15GA(2) provides that in determining whether evidence should be admitted or excluded in any proceedings, the fact that the evidence was obtained as a result of a person engaging in criminal activity is to be disregarded if the person was a participant in an authorised controlled operation and the criminal activity was controlled conduct. 252 An officer of the AFP is empowered by s 15GH(1) of the Crimes Act to apply on behalf of the AFP to an authorising officer for an authority to conduct a controlled operation. As Deputy Commissioners of the AFP, both Deputy Commissioner Gaughan and Deputy Commissioner McCartney were authorising officers. 253 An authorising officer’s power to authorise a controlled operation is found in s 15GI(1) of the Crimes Act. Any authority granted under that section may be unconditional or may be subject to conditions. 254 Under s 15GI(2), an authorising officer must not grant an authority to conduct a controlled operation unless “satisfied on reasonable grounds” of the matters listed in ss 15GI(2)(a)-(h): (2) An authorising officer must not grant an authority to conduct a controlled operation unless the authorising officer is satisfied on reasonable grounds: (a) that either: (i) a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or (ii) an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency (see the notes at the foot of this subsection); and -- 61 of 97 -- [2024] SASCA 82 The Court 58 (b) that the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation; and (c) that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and (d) that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and (e) that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and (f) that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and (g) that any conduct involved in the controlled operation will not: (i) seriously endanger the health or safety of any person; or (ii) cause the death of, or serious injury to, any person; or (iii) involve the commission of a sexual offence against any person; or (iv) result in significant loss of, or serious damage to, property (other than illicit goods); and (h) that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer. 255 Each of the two authorisations obtained in the present case was a “formal authority”. Section 15GK(1) addresses the form and content required of a “formal authority”: (1) A formal authority must: (a) state the name and rank or position of the person granting the authority; and (b) identify the principal law enforcement officer for the controlled operation and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and (c) state that the application was a formal application; and (d) identify the nature of the criminal activity (including the relevant suspected offences) in respect of which the controlled conduct is to be engaged in; and (da) in the case of an integrity testing controlled operation authority—identify the integrity testing authority concerned; and -- 62 of 97 -- [2024] SASCA 82 The Court 59 (e) state the identity of the persons authorised to engage in controlled conduct for the purposes of the controlled operation; and (f) specify: (i) with respect to the law enforcement participants, the nature of the controlled conduct that those participants may engage in; and (ii) with respect to the civilian participants, the particular controlled conduct (if any) that each such participant may engage in; and (g) identify (to the extent known) the person or persons targeted; and (h) specify the period of effect of the authority, being a period not exceeding 3 months; and (i) specify any conditions to which the conduct of the controlled operation is subject; and (j) state the date and time when the authority is granted; and (k) identify the following details (to the extent to which they are known and are relevant): (i) the nature and quantity of any illicit goods that will be involved in the controlled operation; (ii) the foreign countries through which those goods are likely to pass in the course of the controlled operation; (iii) the place or places at which those goods are likely to be dealt with by an officer of Customs; (iv) if subparagraph (iii) does not apply—the place or places where those goods are likely to enter into Australia; (v) the time or times when, and the day or days on which, those goods are likely to be dealt with by an officer of Customs. 256 An authority comes into force, and a controlled operation is taken to commence, at the time the authority is granted under s 15GI. It has effect for a specified period not exceeding three months (unless the authority is varied to extend the period of its operation). 257 Part IAB of the Crimes Act also contains provisions governing the circumstances in which an authorising officer (s 15GQ), or nominated member of the Administrative Appeals Tribunal (s 15GV), may vary an authorisation, and the form and content required of any variation to a formal authority. Relevantly, the person authorising any variation must be satisfied on reasonable grounds of matters which mirror those contained in ss 15GI(2)(a)-(h). 258 Section 15H addresses any defects in an authority or variation: -- 63 of 97 -- [2024] SASCA 82 The Court 60 Defect in authority An application for an authority or variation of an authority, and any authority or variation of an authority granted on the basis of such an application, is not invalidated by any defect, other than a defect that affects the application, authority or variation in a material particular. 259 Section 15HZ creates a presumption of regularity in that it makes an authority, in the absence of evidence to the contrary, proof that the authorising officer was satisfied of the facts he or she was required to be satisfied of to grant the authority: Evidence of authority A document purporting to be an authority granted under section 15GI or under a corresponding State controlled operations law: (a) is admissible in any legal proceedings; and (b) in the absence of evidence to the contrary, is proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person granting the authority was satisfied of the facts he or she was required to be satisfied of to grant the authority. 260 Section 15GZ(1) provides that an authority authorises each law enforcement participant in the controlled operation to which the authority relates, and each civilian identified in the authority, to engage in the controlled conduct specified in the authority whilst that authority (or any relevant variation) is in effect. The defendants’ challenge to the validity of the MCO authorisations 261 The terms of the two MCO authorisations in the present case, MCO No. 1 and MCO No. 2, are set out in full in the primary judge’s reasons.148 It is sufficient for present purposes to observe that, after setting out various details of the AFP’s investigation, the authorisations each included a statement by the authorising officer (Deputy Commissioners Neil Gaughan and Ian McCartney respectively) that he was “satisfied by information given to me” of the various matters listed in ss 15GI(2)(a)-(h) of the Crimes Act. 262 At first instance, the defendants challenged the validity of the two MCOs on various grounds. Their challenge included the argument that is the subject of Question 3 reserved for this Court’s consideration. As mentioned, this argument relied upon the discrepancy between the words appearing on the face of the authorisations (“satisfied by information given to me”) and the legal requirement in s 15GI(2) of the Crimes Act that the authorising officer be “satisfied on reasonable grounds” of the matters listed in ss 15GI(2)(a)-(h). The defendants argued that s 15GI(2) required that the authorising officer direct his mind to the reasonableness of his grounds for satisfaction of the matters listed in ss 15GI(2)(a)- 148 R v TB (No 5) [2023] SASC 118 at [8], [10]. -- 64 of 97 -- [2024] SASCA 82 The Court 61 (h). In other words, it required that the authorising officer be satisfied on grounds which he (subjectively) considered were reasonable. 263 The prosecution response to this argument was that the words “satisfied by information given to me” appearing on the authorisations did not reveal any misunderstanding by the authorising officers of the requirement of s 15GI(2) of the Crimes Act. In particular, the prosecution argued that the inclusion of the words “satisfied on reasonable grounds” in the authorisations was not required by s 15GK, which exhaustively prescribed the matters that were required to appear on the face of the authorisations. Further, the prosecution argued that, contrary to the central premise of the defendants’ argument, the authorising officer was not required to direct his mind to the reasonableness of his grounds for satisfaction of the matters in ss 15GI(2)(a)-(h); it was sufficient that he was satisfied of those matters, with there being an overriding requirement that the authorising officer’s grounds for satisfaction were (objectively) reasonable. In other words, the prosecution argument was that the defendants’ subjective construction be rejected in favour of an objective construction. 264 The prosecution adduced evidence before the primary judge of the material upon which the authorising officers’ decisions were based in support of the (objective) reasonableness of their grounds for satisfaction of the matters in ss 15GI(2)(a)-(h). However, in case its argument in favour of the objective construction of s 15GI(2) was rejected, the prosecution also adduced evidence from the authorising officers to support findings that they were not only satisfied of the relevant matters but also that they (subjectively) considered that their states of satisfaction were based on grounds sufficient to induce the same level of satisfaction in a reasonable authorising officer. The prosecution also argued that, in any event, in the circumstances under consideration in the present case, there was no material difference between an authorising officer reaching a state of satisfaction and that authorising officer reaching a state of satisfaction which he considered to be based on reasonable grounds. The primary judge’s reasons 265 The primary judge rejected the defendants’ subjective construction of s 15GI(2) in favour of the objective construction contended for by the prosecution.149 Having initially accepted the relevance and appropriateness of receiving evidence from the authorising officers as to their belief in the reasonableness of their states of satisfaction, the primary judge recanted from this view.150 His Honour ultimately preferred an objective construction of s 15GI(2), holding that it was sufficient that the authorising officers were satisfied of the relevant matters on grounds which were (objectively) reasonable. 266 In reasoning towards the objective construction, the primary judge commenced by observing that, by reason of s 15HZ, it was to be presumed that the 149 R v TB (No 5) [2023] SASC 118 at [46]-[54]. 150 R v TB (No 5) [2023] SASC 118 at [43]-[45], [55]. -- 65 of 97 -- [2024] SASCA 82 The Court 62 authorising officers were each “satisfied of the facts he or she was required to be satisfied of to grant the authority.” The onus lay on the defendants to establish that the officers were not satisfied of the relevant facts.151 His Honour also observed that, as s 15GK(1) did not require that the state of satisfaction of the authorising officer appear in an authorisation, the authorisations were not invalid by reason that the satisfaction of the authorising officer was stated in terms that differed from what appeared in (or was required by) s 15GI(2).152 267 In addressing more directly the requirement in s 15GI(2) that the authorising officer be “satisfied on reasonable grounds”, the primary judge set out the following passage from the reasons of the High Court in George v Rockett:153 When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion or belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person … That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers. … Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist. … It follows that the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind. 268 His Honour explained that this passage was not to be understood as requiring that the issuing justice (here, the authorising officer) be subjectively satisfied as to the existence of reasonable grounds.154 Noting that statutes which confer a power conditioned on the existence of reasonable grounds for a state of mind (such as satisfaction) are common, his Honour said that, in accordance with this passage, what was required was “the existence of facts which are sufficient to induce that state of mind in a reasonable person.” He added that the suggestion that an authorising officer was required to be subjectively satisfied of the reasonableness of their grounds could not be reconciled with the emphasis upon the objective nature of the inquiry required by this common statutory formula.155 As Gleeson CJ and Kirby J noted in McKinnon v Secretary, Department of Treasury:156 The statutory formula … is widely used. The point of the objectivity of such a test, when it is necessary to consider whether a primary decision-maker had reasonable grounds for a given state of mind, is that the question is not whether the primary decision-maker thinks he or she has reasonable grounds. 269 The primary judge noted that the objective construction of s 15GI(2) was consistent with the terms of s 15HZ. In particular, the presumption of regularity in that section is expressed in terms of a presumption that the authorising officer 151 R v TB (No 5) [2023] SASC 118 at [39]. 152 R v TB (No 5) [2023] SASC 118 at [42]. 153 George v Rockett (1990) 170 CLR 104 at 112 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ (omitting citations). 154 R v TB (No 5) [2023] SASC 118 at [49]. 155 R v TB (No 5) [2023] SASC 118 at [50]. 156 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at [10], citing Bradley v Commonwealth (1973) 128 CLR 557 at 574-575 (Barwick CJ and Gibbs J). -- 66 of 97 -- [2024] SASCA 82 The Court 63 was satisfied of the facts he or she was required to be satisfied of to grant the authority; not that he or she was satisfied on reasonable grounds.157 270 It followed, on the objective construction adopted by the judge, that the statement in the authorisations that the authorising officers were “satisfied by information given to me” accorded with the requirements of s 15GI(2). It was sufficient for the purposes of that section that they were subjectively satisfied of the matters set out in s 15GI(2)(a)-(h); they did not need to be subjectively satisfied that there were reasonable grounds for their satisfaction of those matters.158 As a result, the defendants’ contention that the authorisations were predicated upon a misconstruction of the power under s 15GI(2) was not made out. And their challenge to the validity of the authorisations predicated on that contended misconstruction was rejected. They failed to establish any error on the face of the authorisations, or any other jurisdictional error.159 271 The primary judge concluded by addressing the evidence of the authorising officers. He reasoned that, insofar as the defendants submitted that they were not satisfied of the matters in s 15GI(2)(a)-(h), the submission was to be rejected for two reasons.160 The first was the reference to their states of satisfaction on the authorisations themselves. The second was that his Honour accepted their evidence of satisfaction. As to the objective reasonableness of the grounds for their satisfaction, this was a matter addressed separately by the primary judge, and is not a matter pursued before this Court. Analysis 272 In addressing Question 3 before this Court, the parties essentially repeated their submissions made to the primary judge. In short, we would reject the defendants’ challenge to the validity of the authorisations for the reasons given by the primary judge. 273 In so doing, we would emphasise that the central premise of the defendants’ challenge – namely, the subjective construction to which we have referred – is not supported by the text of s 15GI(2). The chapeau to that section requires that the authorising officer be “satisfied on reasonable grounds”; it does not require that the authorising officer be satisfied that the grounds relied upon are reasonable. 274 Contextually, it is also relevant to note, as the primary judge did, that the presumption of regularity in s 15HZ is expressed in terms that the authorising officer was “satisfied of the facts he or she was required to be satisfied of”. If the exercise of power in s 15GI(2) was intended to be conditioned upon satisfaction as to the reasonableness of the facts or grounds relied upon, then it is to be expected 157 R v TB (No 5) [2023] SASC 118 at [51]. 158 R v TB (No 5) [2023] SASC 118 at [52]-[54]. 159 R v TB (No 5) [2023] SASC 118 at [54], [65]. 160 R v TB (No 5) [2023] SASC 118 at [66]. -- 67 of 97 -- [2024] SASCA 82 The Court 64 that the presumption of regularity would be expressed in terms that more directly engaged this condition. 275 Next, the primary judge’s construction is consistent with the approach taken to similar statutory formulations of the conditions upon which other coercive powers are to be exercised by the executive. On the primary judge’s approach, being “satisfied on reasonable grounds” requires satisfaction based on facts which are sufficient to induce such a state of mind in a reasonable person – here, a reasonable authorising officer. This is consistent with the approach indicated by the reasoning of the High Court in the passages from George v Rockett and McKinnon v Secretary, Department for Treasury extracted above. It is also consistent with the general principle that a state of satisfaction which operates as a subjective jurisdictional fact must be formed reasonably.161 276 It is a construction that would render the exercise of power under s 15GI(2) naturally amendable to the exercise of this Court’s supervisory jurisdiction, and in particular, judicial review on the grounds of legal unreasonableness. This would again be consistent with the approach favoured in the passage to which we have referred from George v Rockett (citing Attorney-General v Reynolds162), and with the general principle to which we have referred. 277 Bearing in mind the significant implications of the grant of an authorisation under s 15GI, we consider it appropriate that it be construed as conditioned upon the (more onerous) objective constraint we have indicated. Conversely, we consider it unlikely that Parliament would have intended that an authorisation be conditioned merely upon an authorising officer’s subjective satisfaction as to the reasonableness of the grounds upon which he or she relied. To the extent that a subjective belief in the reasonableness of the grounds relied upon would be a sensible or meaningful requirement at all, it is one that would be easily met, and not one that would be naturally amenable to judicial review on the ground of legal unreasonableness. 278 For all of these reasons, we agree with the primary judge’s construction of s 15GI(2). It follows that the defendants have not established any misconstruction of the power to grant authorisations under that section, either on the face of the two impugned authorisations or otherwise. The challenge to the validity of those authorisations has not been made out. 279 Questions 3.1 and 3.2 should both be answered ‘No’. 161 Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [33] (Gageler and Keane JJ); Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]- [137] (Gummow J); R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430 (Latham CJ); Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [20]-[27] (Allsop CJ, Besanko and O’Callaghan JJ). 162 Attorney-General v Reynolds [1980] AC 637. -- 68 of 97 -- [2024] SASCA 82 The Court 65 PART D: STATE OFFENCES HAVING A FEDERAL ASPECT 280 This section of the reasons addresses Questions 4, 5 and 6. 281 The AN0M communications were obtained by the AFP from servers located in Sydney. They were obtained pursuant to surveillance device warrants and computer access warrants issued under the SD Act. 282 By application filed on 23 March 2023 (FDN 346) the defendants sought to exclude the AN0M communications from the evidence at trial on the ground that they are “protected information” under s 44 of the SD Act and therefore inadmissible – the trial not being a “relevant proceeding” under s 45(5)(c) of the SD Act, with “relevant proceeding” defined in s 6 of that Act to include the prosecution of a “relevant offence”. 283 The prosecution, on the other hand, contended that each of Counts 1-3 and 8- 14 is a “relevant offence” as defined by s 6 of the SD Act, namely “an offence against the law of a State that has a federal aspect that is punishable by a maximum term of imprisonment of three years or more or for life.” 284 As mentioned earlier in these reasons, the defendants are charged with participating in a criminal organisation contrary to s 83E(1) of the CLCA (Count 1) and with various firearms offences contrary to the Firearms Act (Counts 2-5 and 8-15).163 There is no dispute that each of these counts involves an offence against the law of a State (that is, the law of South Australia). The maximum penalty for each of Counts 4, 5 and 15 (being counts relating to the possession of a sound moderator and ammunition, rather than firearms) is less than imprisonment for three years, and so the prosecution accepts that these are not “relevant offences”.164 However, each of Counts 1-3 and 8-14 is punishable by a maximum term of imprisonment for three years or more. 285 It follows that, in relation to Counts 1-3 and 8-14, the only issue standing in the way of a conclusion that they involve “relevant offences” is whether they relate to State offences that have “a federal aspect”. 286 By reason of s 7 of the SD Act, this issue falls to be determined by reference to whether these offences would be State offences that have a federal aspect under s 4AA of the AFP Act. 287 The terms of s 4AA(1) of the AFP Act are set out later in these reasons. The prosecution contend that: 163 Counts 6 and 7 did not relate to the defendants; they related only to Mr Wakefield. 164 Whether the AN0M communications might be used in a trial of Counts 4, 5 and 15 was not resolved (R v TB (No 6) [2023] SASC 140 at [15]). -- 69 of 97 -- [2024] SASCA 82 The Court 66 • Count 1 is a State offence with a federal aspect under s 4AA(1)(a) of the AFP Act, on the ground that, if enacted by the Commonwealth, s 83E(1) would have been a valid law of the Commonwealth; • Counts 1-3 and 8-14 are State offences with a federal aspect under s 4AA(1)(c) of the AFP Act on the ground that, having regard to ss 4AA(2) and 4AA(3)(e), the relevant offence provisions would have been valid laws of the Commonwealth by reason that the conduct constituting these offences “involved an electronic communication”; and • Counts 1-3 and 8-14 are State offences with a federal aspect under s 4AA(1)(d) of the AFP Act, on the ground that: (i) the AFP was investigating an offence against a law of the Commonwealth; and (ii) if the AFP were to investigate the relevant State offences, that investigation would be incidental to the investigation in (i). 288 For reasons published on 29 September 2023,165 the primary judge dismissed the defendants’ application. His Honour held that Count 1 was a State offence with a federal aspect under s 4AA(1)(a) of the AFP Act, and that each of Counts 1-3 and 8-14 were State offences with a federal aspect under s 4AA(1)(d) of the AFP Act. However, his Honour rejected the prosecution contention that Counts 1-3 and 8-14 were also State offences with a federal aspect under s 4AA(1)(c) of the AFP Act. 289 Questions 4, 5 and 6 relate to these conclusions, and are in the following terms: Question 4 In respect of Interlocutory Application [FDN 346] filed by the defendants on 23 March 2023, is Count 1 as contained in the ex-officio information dated 17 November 2021 and the subject of matter SCCRM-21-460, a State offence having a federal aspect within the meaning of s 4AA(1)(a) of the Australian Federal Police Act 1979 (Cth) (AFP Act)? Question 5 In respect of Interlocutory Application [FDN 346] filed by the defendants on 23 March 2023, are each of Counts 1-3 and 8-14 as contained in the ex-officio Information dated 17 November 2021 and the subject of matter SCCRM-21-460, State offences having a federal aspect within the meaning of s 4AA(1)(c) of the AFP Act having regard to ss 4AA(2) and 4AA(3)(e) of that same Act? Question 6 In respect of Interlocutory Application [FDN 346] filed by the defendants on 23 March 2023, are each of Counts 1-3 and 8-14 as contained in the ex-officio Information dated 17 November 2021 and the subject of matter SCCRM-21-460, State offences having a federal aspect within the meaning of s 4AA(1)(d) of the AFP Act? 165 R v TB (No 6) [2023] SASC 140. -- 70 of 97 -- [2024] SASCA 82 The Court 67 Legislative framework 290 Under ss 44(1)(a) and (aa) of the SD Act, information obtained from the use of a surveillance device under a warrant or under a computer access warrant is “protected information”. There is no dispute that the AN0M communications are protected information. 291 Sections 45(1) and (2) of the SD Act provide for a general prohibition against the use, recording, communication or publication of protected information. Section 45(3) provides that protected information may not be admitted in evidence in any proceedings, subject to certain exceptions within ss 45(4) and (5) and s 65B of the SD Act. 292 Relevantly to the present case, s 45(5)(c) provides that protected information may be used, recorded, communicated or published, or may be admitted in evidence, if it is necessary to do so for the purpose of “a relevant proceeding … or a State or Territory relevant proceeding”. 293 Under s 45(9)(a), a “State or Territory relevant proceeding” is defined to include “the prosecution of a State or Territory relevant offence”; and a “State or Territory relevant offence” is defined to mean “a relevant offence against the law of a State or self-governing Territory that is punishable by a maximum term of imprisonment of three years or more or for life”. 294 A “relevant offence” is defined in s 6 to include an offence against the law of the Commonwealth, or an offence against a law of a State that has “a federal aspect”, and that is punishable by a maximum term of imprisonment of three years or more or for life. 295 The concept of a State offence that has a federal aspect is addressed in s 7 of the SD Act: 7 State offence that has a federal aspect An offence against a law of a State is taken, for the purposes of this Act, to be a State offence that has a federal aspect: (a) in a case where the offence is being investigated by the Australian Federal Police— if it would be taken to be a State offence that has a federal aspect under section 4AA of the Australian Federal Police Act 1979; and (b) in a case where the offence is being investigated by the Australian Crime Commission—if it would be taken to be a State offence that has a federal aspect under section 4A of the Australian Crime Commission Act 2002; and (c) in any other case—if it would be taken to be a State offence that has a federal aspect if either of the sections referred to in paragraphs (a) and (b) were to apply. 296 The parties have proceeded on the basis that only s 7(c) is applicable in the present case; and that, because the evidence was provided as a result of an AFP -- 71 of 97 -- [2024] SASCA 82 The Court 68 investigation, the relevant definition of a State offence that has a federal aspect is the definition found in s 4AA of the AFP Act. 297 Under s 8(1)(baa) of the AFP Act, the AFP is authorised to investigate State offences that have a federal aspect. The concept of State offences with a federal aspect is addressed in s 4AA: 4AA State offences that have a federal aspect Object (1A) The object of this section is to identify State offences that have a federal aspect because: (a) they potentially fall within Commonwealth legislative power because of the elements of the State offence; or (b) they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or (c) the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory. State offences that have a federal aspect (1) For the purposes of this Act, a State offence has a federal aspect if, and only if: (a) both: (i) the State offence is not an ancillary offence; and (ii) assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or (b) both: (i) the State offence is an ancillary offence that relates to a particular primary offence; and (ii) assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or (c) assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence—that provision would have been a valid law of the Commonwealth; or -- 72 of 97 -- [2024] SASCA 82 The Court 69 (d) both: (i) the Australian Federal Police is investigating an offence against a law of the Commonwealth or a Territory; and (ii) if the Australian Federal Police is investigating, or were to investigate, the State offence—that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i). Specificity of acts or omissions (2) For the purposes of paragraph (1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence). State offences covered by paragraph (1)(c) (3) A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence: (a) affects the interests of: (i) the Commonwealth; or (ii) an authority of the Commonwealth; or (iii) a constitutional corporation; or (b) was engaged in by a constitutional corporation; or (c) was engaged in in a Commonwealth place; or (d) involved the use of a postal service or other like service; or (e) involved an electronic communication; or (f) involved trade or commerce: (i) between Australia and places outside Australia; or (ii) among the States; or (iii) within a Territory, between a State and a Territory or between 2 Territories; or (g) involved: (i) banking (other than State banking not extending beyond the limits of the State concerned); or (ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or (h) relates to a matter outside Australia; or -- 73 of 97 -- [2024] SASCA 82 The Court 70 (i) relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; (j) relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern. (4) Subsection (3) does not limit paragraph (1)(c). Definitions (5) In this section: ancillary offence, in relation to an offence (the primary offence), means: (a) an offence of conspiring to commit the primary offence; or (b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or (c) an offence of attempting to commit the primary offence. authority of the Commonwealth has the same meaning as in section 3AA of the Crimes Act 1914. Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970. conduct has the same meaning as in the Criminal Code. constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. electronic communication means a communication of information: (a) whether in the form of text; or (b) whether in the form of data; or (c) whether in the form of speech, music or other sounds; or (d) whether in the form of visual images (animated or otherwise); or (e) whether in any other form; or (f) whether in any combination of forms; by means of guided and/or unguided electromagnetic energy. engage in conduct has the same meaning as in the Criminal Code. State includes the Australian Capital Territory and the Northern Territory. State offence means an offence against a law of a State. -- 74 of 97 -- [2024] SASCA 82 The Court 71 298 Noting that “conduct” is given the same meaning as in the Criminal Code Act 1995 (Cth), “conduct” is defined in s 4.1(2) of that Act to mean “an act, an omission to perform an act or a state of affairs”. The parties’ arguments 299 As mentioned, the prosecution contended that Count 1 involves a State offence with a federal aspect under s 4AA(1)(a) of the AFP Act, and that each of Counts 1-3 and 8-14 involve State offences with a federal aspect under both ss 4AA(1)(c) and (d). 300 Starting with s 4AA(1)(a) of the AFP Act, Count 1 involves a charge of participation in a criminal organisation, contrary to s 83E(1) of the CLCA. The prosecution argued that, had the Commonwealth Parliament enacted that provision, it would have been a valid law of the Commonwealth – the Commonwealth Parliament having legislative power to make laws with respect to criminal organisations. It argued that the legislative power to enact such an offence was supported by the external affairs power under s 51(xxix) of the Constitution, relying upon the United Nations Convention against Transnational Organized Crime166 (the Organised Crime Convention) and the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances167 (the Narcotic Drugs Convention). Australia is a party to, and owes treaty obligations under, both of these Conventions. 301 In challenging the prosecution contention that s 83E(1) of the CLCA would have been a valid law of the Commonwealth, the defendants relied upon differences said to exist between the terms of these Conventions and the terms of s 83E(1). They contended that these differences were such that s 83E(1) was not capable of being appropriate and adapted to implementing the terms of the Conventions such that it could not be a valid law of the Commonwealth supported by the external affairs power. As a result, the prosecution could not rely upon s 4AA(1)(a) to establish that Count 1 involved a State offence having a federal aspect. 302 Turning next to s 4AA(1)(c) of the AFP Act, the prosecution argued that it operates in a similar way to s 4AA(1)(a), as it provides that a State offence has a federal aspect if, assuming the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence (having regard to the circumstances in which the offence was committed168), that provision would have been a valid law of the Commonwealth. 166 United Nations Convention against Transnational Organized Crime, 15 November 2000, 2225 UNTS 209 (entered into force 29 September 2003), particularly Article 5. 167 United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, 1582 UNTS 165 (entered into force 11 November 1990), particularly Article 3.5(a) and (d). 168 AFP Act, s 4AA(2). -- 75 of 97 -- [2024] SASCA 82 The Court 72 303 In contending that a Commonwealth provision penalising the acts or omissions involved in committing the various alleged State offences would have been a valid law of the Commonwealth, the prosecution relied upon both s 4AA(3)(i) in respect of Count 1, and s 4AA(3)(e) in respect of each of Counts 1- 3 and 8-14. 304 Section 4AA(3)(i) reflects the external affairs power under s 51(xxix) of the Constitution. It provides that a State offence is taken to be covered by s 4AA(1)(c) if the conduct constituting the offence relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement. The prosecution argued that Count 1 was an offence to which s 4AA(3)(i) applied and that the Organised Crime Convention and the Narcotic Drugs Convention were the relevant international agreements to which it related. The defendants’ response to this argument mirrored their response, set out above, to the similar prosecution argument made in relation to those Conventions in the context of s 4AA(1)(a). 305 Section 4AA(3)(e) reflects the communications power under s 51(v) of the Constitution. It provides that a State offence is taken to be covered by s 4AA(1)(c) if the conduct constituting the offence “involved an electronic communication”. Section 4AA(2) provides that for the purposes of s 4AA(1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence). The prosecution contended that on the facts alleged by the prosecution in relation to each of the offences charged, the conduct constituting the specific acts alleged to have been engaged in by the respondents involved an electronic communication. 306 The defendants argued that it was not sufficient that electronic communications happened to form part of the circumstantial case relied upon by the prosecution to establish that the defendants were storing or controlling the utility in relation to Count 1 or were in possession of the items the subject of Counts 1-3 and 8-14, with the result that s 4AA(1)(c) was not made out. The prosecution response to this was that the electronic communications in question (that is, the AN0M communications) were the means by which the defendants exercised control and possession over the utility and the items it contained, and not merely circumstantial evidence of that control and possession. 307 Turning finally to s 4AA(1)(d), in relation to each of Counts 1-3 and 8-14, the prosecution argued that the State offences had a federal aspect by virtue of being incidental to the AFP investigation into offences against the laws of the Commonwealth. The prosecution contended that the MCO authorisations established that Operation Ironside was an AFP investigation into numerous suspected Commonwealth offences, including directing or supporting the activities of criminal organisations, drug trafficking, money laundering and various other listed offences. The prosecution contended that the charged State offences in this -- 76 of 97 -- [2024] SASCA 82 The Court 73 matter were unearthed as an incident of Operation Ironside, and were thus incidental to that operation. 308 In response, the defendants argued that any investigation into the offences charged in Counts 1-3 and 8-14 by the AFP would not have been incidental to the investigation of the Commonwealth offences set out in the MCO authorisations. This was because, using incidental in its strict legal sense, an investigation into the State offences was not necessary for the purposes of carrying out the Commonwealth investigation. As such, the requirements of s 4AA(1)(d) were not made out. The primary judge’s reasons 309 The primary judge dismissed the defendants’ application. As mentioned, he held that Count 1 was a State offence with a federal aspect under s 4AA(1)(a) of the AFP Act, and that each of Counts 1-3 and 8-14 were State offences with a federal aspect under s 4AA(1)(d) of the AFP Act. However, his Honour rejected the prosecution contention that Counts 1-3 and 8-14 were also State offences with a federal aspect under s 4AA(1)(c) of the AFP Act. Section 4AA(1)(d) – incidental to investigation of Commonwealth offences 310 The primary judge commenced his consideration of whether the charged State offences have a federal aspect by addressing the prosecution contention that Counts 1-3 and 8-14 are State offences with a federal aspect under s 4AA(1)(d) of the AFP Act, on the ground that: (i) the AFP was investigating an offence against a law of the Commonwealth; and (ii) if the AFP were to investigate the relevant State offences, that investigation would be incidental to the investigation in (i). 311 After describing the background to Operation Ironside and the AN0M platform in terms similar to the summary at the outset of these reasons, the primary judge accepted that the evidence established that the AFP was investigating several offences against laws of the Commonwealth.169 In particular, the AFP was investigating the offences described in the following terms in the MCO authorisations: Directing activities of a criminal organisation under section 390.6(2) of the Criminal Code (Cth), being a Commonwealth offence that involves matters of the same general nature as a matter listed in section 15GE(2) (including but not limited to controlled substances and money laundering) which is punishable on conviction by imprisonment for a period of 15 years. Supporting a criminal organisation, under section 390.4 of the Criminal Code (Cth), being a Commonwealth offence that involves matters of the same general nature as a matter listed in section 15GE(2) (including but not limited to controlled substances and money laundering) which is punishable on conviction by imprisonment for a period of five years. Conspiracy to import a commercial quantity of border controlled drugs, under section 307.1 by virtue of section 11.5(1) of the Criminal Code (Cth), being a Commonwealth offence 169 R v TB (No 6) [2023] SASC 140 at [27]. -- 77 of 97 -- [2024] SASCA 82 The Court 74 that involves controlled substances which is punishable on conviction by imprisonment for life, or 7,500 penalty units, or both. Conspiracy to traffic commercial quantities of controlled drugs, under section 302.2 by virtue of section 11.5(1) of the Criminal Code (Cth), being a Commonwealth offence that involves controlled substances which is punishable on conviction by imprisonment for life, or 7,500 penalty units, or both. Dealing in proceeds of crime etc.—money or property worth $100,000 or more, under section 400.4 of the Criminal Code (Cth), being a Commonwealth offence that involves money laundering which is punishable on conviction by imprisonment for 20 years or 1,200 penalty units, or both. Using equipment connected to a telecommunications network in the commission of, or to facilitate the commission of, a serious offence (being an offence with a penalty of five years imprisonment or more) under section 474.14 of the Criminal Code (Cth), being a Commonwealth offence that involves matters of the same general nature as a matter listed in section 15GE(2) which is punishable on conviction by a penalty not exceeding the penalty applicable to the serious offence. Conducting transactions so as to avoid reporting requirements relating to threshold transactions under section 142 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, being a Commonwealth offence that involves money laundering which is punishable on conviction by imprisonment for five years or 300 penalty units, or both. 312 There was therefore no dispute that s 4AA(1)(d)(i) was satisfied. The issue was whether, for the purposes of s 4AA(1)(d)(ii), if the AFP were to investigate the State offences, that investigation would be incidental to the AFP’s investigation of the Commonwealth offences identified in the MCO authorisations.170 313 His Honour noted that the word “incidental” was not defined in the AFP Act, but that dictionary definitions included “happening or likely to happen in fortuitous or subordinate conjunction with something else”,171 and “occurring or liable to occur in fortuitous or subordinate conjunction with something else of which it forms no essential part”.172 His Honour also noted that, in the context of the power under s 51(xxxix) of the Constitution to make laws with respect to matters incidental to the execution of any power vested in the Parliament, it had been held that “incidental” meant “something which attends or arises” in the exercise of power.173 314 The primary judge noted the defendants’ argument that while the AFP was investigating offences relating to a criminal organisation, the conduct the subject of Count 1, as well as Counts 2-3 and 8-14, related to firearms. On the face of the MCO authorisations, however, the AFP investigation related to drugs and money laundering, not firearms. Any investigation of the State offences would not have 170 R v TB (No 6) [2023] SASC 140 at [28]-[29]. 171 Macquarie Dictionary (online at 5 September 2023). 172 Oxford English Dictionary (online at 5 September 2023). 173 R v TB (No 6) [2023] SASC 140 at [31], referring to Le Mesurier v Connor (1929) 42 CLR 481 at 497 (Knox CJ, Rich and Dixon JJ). -- 78 of 97 -- [2024] SASCA 82 The Court 75 been incidental to the AFP investigation because it would not have been necessary for the purpose of carrying out the AFP investigation.174 315 The defendants sought to draw support for their strict view of what “incidental” to an investigation meant (namely, that it was necessary for the purpose of carrying out that investigation) from the law in relation to the Commonwealth’s exercise of its incidental power under s 51(xxxix) of the Constitution. However, the primary judge did not consider it necessary to determine whether this was a correct view of the incidental power because the application of s 4AA(1)(d)(ii) did not, on its terms, involve or necessitate any consideration of the legislative power of the Commonwealth. His Honour explained that s 4AA(1)(d)(ii) served only to identify State offences which have a federal aspect due to them arising as incidental to an investigation into Commonwealth offences. It did not operate to expand the scope of an AFP investigation, or the power of the AFP to investigate.175 316 In his Honour’s view, the issue was simply whether, were the AFP to investigate the State offences set out in Counts 1-3 and 8-14, that investigation would be properly characterised as incidental to (in the sense of arising during, or occurring in fortuitous or subordinate conjunction with) the AFP investigation described in the MCO authorisations.176 317 The primary judge was satisfied that the hypothesised investigation would be properly characterised in this way.177 The evidence of the alleged commission of the State offences arose during the AFP investigation into the Commonwealth offences in the MCO authorisations. It was not suggested that the AFP had been aware of the alleged State offences when its investigation commenced.178 Rather, in the course of that investigation, the AN0M communications exposed the alleged commission of the charged State offences.179 318 It followed, on the primary judge’s reasoning, that the defendants’ application failed. The AN0M communications were not inadmissible protected information; rather, by reason of s 4AA(1)(d) of the AFP Act, they fell within the exception to the general inadmissibility of protected information in respect of a relevant proceeding under s 45(5)(c) of the SD Act.180 However, his Honour considered it appropriate to also address the potential application of ss 4AA(1)(a) and (c) in case he was wrong in his view that s 4AA(1)(d) applied.181 174 R v TB (No 6) [2023] SASC 140 at [32]. 175 R v TB (No 6) [2023] SASC 140 at [33]-[35]. 176 R v TB (No 6) [2023] SASC 140 at [36]. 177 R v TB (No 6) [2023] SASC 140 at [36], [39]. 178 When the judge said could be taken to have occurred on 25 September 2018 (being the date of the first MCO authorisation). 179 R v TB (No 6) [2023] SASC 140 at [37], [38]. 180 R v TB (No 6) [2023] SASC 140 at [40]. 181 R v TB (No 6) [2023] SASC 140 at [41]. -- 79 of 97 -- [2024] SASCA 82 The Court 76 Section 4AA(1)(c) – involved electronic communications 319 The primary judge next considered the potential application of the limb of the definition of a State offence having a federal aspect in the AFP Act contained in s 4AA(1)(c) of the AFP Act, and in particular, whether the conduct constituting the State offences the subject of Counts 1-3 and 8-14 “involved an electronic communication” (s 4AA(3)(e)). 320 There was no dispute that the AN0M communications were electronic communications, as defined in s 4AA(5).182 321 Noting that s 4AA(2) permitted regard to be had to the circumstances in which the offence was committed, including conduct beyond the elements of the offence, the prosecution submitted that the electronic communications were an aspect of the way in which the defendants committed the alleged offences. The communications were the means by which access to the utility and firearms was controlled.183 Reference was made in this context to the expansive definition of possession in s 6(2) of the Firearms Act, which includes having or exercising access to, or control over, the relevant firearm, or having control over a vehicle where it is found. 322 The defendants, on the other hand, submitted that while the AN0M communications were part of the evidence relied upon by the prosecution to prove participation and possession, the communications were not the conduct the subject of the offences.184 323 In accepting the defendants’ argument, the primary judge reasoned:185 I reject the submission of the prosecution. I am not satisfied that it is sufficient to come within s 4AA(3)(e) that electronic communications are part of the circumstantial evidence which prove an element of the charged offending. Were that so, any offence which involved an act or omission, and which could be proved by electronic communications would be taken to be a State offence with a federal aspect. That is not consistent with conduct constituting the State offence involving the use of electronic communications. Though the ANOM devices were allegedly used in a manner which demonstrated the conduct the subject of the State offences, the ANOM communications were merely the medium through which certain conduct evidencing the commission of the State offences was engaged. No aspect of the manner in which the ANOM devices were used in this case is the subject of a charged State offence. 324 The primary judge added that s 4AA(2) does not operate to expand “specific acts or omissions involved in committing the State offence” to conduct that is not the subject of a State offence. To do so would be inconsistent with s 4AA(3), which is directed to “conduct constituting the State offence”. His Honour said that the words of s 4AA(2) do not alter the scope of what acts or omissions can be 182 R v TB (No 6) [2023] SASC 140 at [45]. 183 R v TB (No 6) [2023] SASC 140 at [46]. 184 R v TB (No 6) [2023] SASC 140 at [48]. 185 R v TB (No 6) [2023] SASC 140 at [49]-[50]. -- 80 of 97 -- [2024] SASCA 82 The Court 77 considered to be those which are “involved in committing” the State offence. That section merely provides that the circumstances in which the offence is committed are relevant to determining the specificity required for identifying which acts or omissions are involved in committing the State offence and which are not.186 325 The primary judge reasoned:187 There is no difficulty in the present case in identifying acts which were involved in committing the State offences and those which are not. The circumstances are clear and while electronic communications were the medium through which the conduct involved in committing the State offences was exercised, the use of the ANOM device for the purposes of that conduct is not the subject of any charged State offence in this matter. 326 His Honour concluded by mentioning that he had not overlooked the folder of the communications tendered on the application by the prosecution.188 But he said he was not directed to specific communications which were said to particularly support the prosecution argument, or said to themselves be the subject of any charged conduct.189 Section 4AA(1)(a) – would have been valid laws of the Commonwealth 327 Finally, the primary judge also considered the potential application of the limb of the definition of a State offence having a federal aspect in s 4AA(1)(a) of the AFP Act, and in particular, whether Count 1 was a State offence with a federal aspect under this section by reason that it would have been a valid law of the Commonwealth.190 328 The validity of s 83E(1) of the CLCA as a (hypothetical) law of the Commonwealth was said to be supported by the external affairs power under s 51(xxix) of the Constitution. The judge referred in this respect to Article 5 of the Organised Crime Convention: Article 5 Criminalization of participation in an organized criminal group 1 Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: (a) Either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity: (i) Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving 186 R v TB (No 6) [2023] SASC 140 at [51]. 187 R v TB (No 6) [2023] SASC 140 at [52]. 188 Exhibit VD P1A. 189 R v TB (No 6) [2023] SASC 140 at [53]. 190 It was accepted that s 83E(1) of the CLCA was not an “ancillary offence” for the purposes of s 4AA(1)(a)(i) of the AFP Act, as defined in s 4AA(5) of that Act. -- 81 of 97 -- [2024] SASCA 82 The Court 78 an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group; (ii) Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in: a. Criminal activities of the organized criminal group; b. Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim; (b) Organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group. 2. The knowledge, intent, aim, purpose or agreement referred to in paragraph 1 of this article may be inferred from objective factual circumstances. 3. States Parties whose domestic law requires involvement of an organized criminal group for purposes of the offences established in accordance with paragraph 1 (a) (i) of this article shall ensure that their domestic law covers all serious crimes involving organized criminal groups. Such States Parties, as well as States Parties whose domestic law requires an act in furtherance of the agreement for purposes of the offences established in accordance with paragraph 1 (a) (i) of this article, shall so inform the Secretary-General of the United Nations at the time of their signature or of deposit of their instrument of ratification, acceptance or approval of or accession to this Convention. 329 Relevant terms within Article 5 are defined in Article 2 as follows: (a) “Organized criminal group” shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit; (b) “Serious crime” shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty; 330 The primary judge noted that the prosecution also relied upon the Narcotic Drugs Convention, but said that, given his findings, he did not need to address this Convention.191 331 The primary judge then set out the terms of s 83E(1) of the CLCA: 83E – Participation in criminal organisation (1) A person who participates in a criminal organisation— (a) knowing that, or being reckless as to whether, it is a criminal organisation; and 191 R v TB (No 6) [2023] SASC 140 at [58] (footnote 28). -- 82 of 97 -- [2024] SASCA 82 The Court 79 (b) knowing that, or being reckless as to whether, his or her participation in that organisation contributes to the occurrence of any criminal activity, is guilty of an offence. Maximum penalty: Imprisonment for 15 years. 332 His Honour also set out a number of definitions contained in s 83D of the CLCA: criminal group—a group consisting of 2 or more persons is a criminal group if— (a) an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence of violence (or conduct that would, if engaged in within this State, constitute such an offence); or (b) an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence (or conduct that would, if engaged in within this State, constitute such an offence) that is intended to benefit the group, persons who participate in the group or their associates; criminal organisation means— (a) a criminal group; or (b) a declared organisation; declared organisation has the same meaning as in the Serious and Organised Crime (Control) Act 2008; participating in a criminal organisation includes (without limitation)— (a) recruiting others to participate in the organisation; and (b) supporting the organisation; and (c) committing an offence for the benefit of, or at the direction of, the organisation; and (d) occupying a leadership or management position in the organisation or otherwise directing any acts of the organisation; serious offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more; serious offence of violence means a serious offence where the conduct constituting the offence involves— (a) the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person; or (b) serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or -- 83 of 97 -- [2024] SASCA 82 The Court 80 (c) perverting the course of justice in relation to any conduct that, if proved, would constitute a serious offence of violence as referred to in paragraph (a) or (b). 333 In contending that s 83E(1) of the CLCA would not have been a valid law if enacted by the Commonwealth Parliament, the defendants directed attention to various differences between the terms of that provision and the terms of the Organised Crime Convention. They argued that these differences meant that s 83E(1) was not reasonably capable of being appropriate and adapted to implementing the terms of the Convention, and hence not a valid exercise of the external affairs power. The differences relied upon by the defendants were: • the reference in Article 5.1(a)(i) of the Convention to “financial or other material benefit”; • the reference in Articles 5.1(a)(i) and 5.3 of the Convention to “serious crime”, when s 83E(1) was not limited in this way; and • the reference in Articles 5.1(a)(ii) and 5.2 to “knowledge”, and the absence of any reference to “recklessness”, when s 83E(1) permitted reliance upon “recklessness”. 334 The principles governing the implementation of treaties through s 51(xxix) of the Constitution were not in dispute. The primary judge summarised them as follows:192 First, to be a ‘law with respect to ‘external affairs’, the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty’.193 Second, in order for the treaty implementation aspect of the power to be relied upon (and in this case, the State laws as hypothesised Commonwealth laws under s 4AA(1)(a)(ii) of the AFPA), the relevant Commonwealth ‘law must prescribe a regime that the treaty has itself defined with sufficient specificity to the general course to be taken by the signatory states’.194 Third, ‘it is for the legislature to choose the means by which it gives effect to the treaty provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end’.195 335 The primary judge explained that the focus of the argument in the present case was upon the third of these principles.196 Having emphasised that it was for the legislature to choose the means by which it gave effect to a treaty, and that precise correspondence was not required, his Honour addressed the differences (listed above) between the terms of the Organised Crime Convention and s 83E(1) 192 R v TB (No 6) [2023] SASC 140 at [66]. 193 Victoria v Commonwealth (1996) 187 CLR 416, 486–7 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). 194 Ibid. 195 Ibid; Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54, 136; Commonwealth v Tasmania (1983) 158 CLR 1, 130–1, 172, 232, 259; Richardson v Forestry Commission (1988) 164 CLR 261, 288–9, 303, 311–12, 336, 342. 196 R v TB (No 6) [2023] SASC 140 at [67]-[68]. -- 84 of 97 -- [2024] SASCA 82 The Court 81 of the CLCA. His Honour was not satisfied that any of these were of sufficient significance to take s 83E(1) outside the legislative power of the Commonwealth:197 In my view, the absence of reference to ‘serious crime’ in s 83E(1) does not lead to the result that s 4AA(1)(a)(ii) is not satisfied. Article 5.1(a)(ii) does not require that the criminal activity amount to ‘serious crime’. Even were that put aside, while s 83E(1)(b) only demands that a person participate knowing or being reckless that their participation contributes to the occurrence of any criminal activity, the act(s) of participation must be in a criminal organisation. A criminal organisation includes a criminal group which has the aim or activity set out in the definition of criminal group in s 83D. The ‘serious offence’ referred to in the definition of criminal group is defined to mean an indictable offence punishable by imprisonment for at least five years (i.e. – more than that required to be a ‘serious crime’ as defined in the Convention). The serious offence of violence referred to in the definition of criminal group also must be one which is a ‘serious offence’ (i.e. – again, an indictable offence punishable by imprisonment for at least five years). Section 83E(1) clearly enables the elements of that offence to be established if a person is ‘reckless’ as to specific matters which are set out. Nonetheless, I find s 4AA(1)(a)(ii) is satisfied as the means chosen would be ‘reasonably capable of being appropriate and adapted’ to give effect to the Convention. While recklessness is less than knowledge, it requires awareness of certain probabilities. A person is reckless if they were aware it was probable their conduct supported a criminal organisation and aware that it is probable that his or her participation contributes to the occurrence of any criminal activity. I am also satisfied that s 83E(1) can be brought within Article 5.1(b) of the Convention. Section 83D defines participating in a criminal organisation in the way set out above. The concepts in that non-exhaustive definition are, in my view, consistent with Article 5.1(b). A person who commits the offence created by s 83E(1) will be, at least, ‘facilitating’ the commission of crime involving an organised criminal group. It must be observed that the ‘organised criminal group’ set out in the Convention requires three or more persons while the criminal organisation in s 83E(1) can be two or more persons. In my view, that is not a difference that means that had s 83E(1) been enacted by the Parliament of the Commonwealth, it would not have been a valid law. The means chosen would be ‘reasonably capable of being considered appropriate and adapted’ to give effect to the Convention. Notwithstanding the differences between s 83E(1) and the Convention, I am satisfied that were the Parliament of the Commonwealth to enact s 83E(1), it would not be beyond power. In the circumstances, it is not necessary to consider the words within Article 5.1(a)(i): ‘a financial or other material benefit’. As set out above, I am satisfied that s 83E(1) is supported by Article 5.1(a)(ii) and 5.1(b). 336 We note in passing that the primary judge did not address the alternative argument by the prosecution that Count 1 involved a State offence having a federal aspect under s 4AA(1)(c) of the AFP Act by reason that the conduct constituting the offence related to a matter in respect of which an international agreement to which Australia is a party (the Organised Crime Convention and the Narcotic Drugs Convention) imposes obligations to which effect could be given by the 197 R v TB (No 6) [2023] SASC 140 at [70]-[75]. -- 85 of 97 -- [2024] SASCA 82 The Court 82 creation of an offence against the domestic laws of the parties to the agreement (s 4AA(3)(i)). Incidental to the investigation of Commonwealth offences 337 Before this Court, the defendants challenge the primary judge’s conclusion that Counts 1-3 and 8-14 involved State offences having a federal aspect under s 4AA(1)(d) of the AFP Act. 338 There is no dispute that the AFP was investigating Commonwealth offences (s 4AA(1)(d)(i)). Pursuant to Operation Ironside, it was investigating the Commonwealth offences listed in the MCO authorisations. 339 However, the defendants do not accept that s 4AA(1)(d)(ii) was made out. They do not accept that if the AFP was investigating the State offences in question, or were to investigate those offences, then that investigation would be incidental to the investigation mentioned in s 4AA(1)(d)(i). 340 In developing this argument, the defendants commenced by pointing out that the AFP were not investigating the State offences. Rather, the AFP merely came across the AN0M communications which revealed the potential offending and then provided them to SAPOL for it to determine whether to investigate the State offences. 341 While this may be accepted, it will be recalled that the primary judge nevertheless held that s 4AA(1)(d)(ii) was satisfied on the basis that if the AFP “were to investigate the State offence[s] – that investigation … would be, incidental to the investigation mentioned in subparagraph (1)”; that is, a hypothetical investigation of the State offences by the AFP would have been incidental to the investigation it was in fact undertaking pursuant to Operation Ironside. 342 In challenging this conclusion, the defendants argue that the primary judge took an erroneously broad view of what is contemplated by the notion of the (hypothetical) investigation of State offences by the AFP being “incidental” to the AFP’s investigation for the purposes of s 4AA(1)(d)(ii) of the AFP Act. Invoking the authorities addressing the scope of the Commonwealth’s legislative powers under s 51(xxxix) of the Constitution, they argue that the hypothesised investigation of the State offences would need to be subordinate to the existing investigation in the sense of being in aid of its execution. They argue that an investigation will only be incidental to an AFP investigation where it is a necessary part of, or is essential to, that investigation. 343 The defendants argue that it is not enough that the suspected State offending was detected in the course of an existing AFP investigation. More is needed before an investigation of the suspected State offending could be said to be an incident of, or incidental to, an existing AFP investigation. It would be necessary to identify some relationship between the AFP investigation and the State offences that -- 86 of 97 -- [2024] SASCA 82 The Court 83 involved more than mere happenstance. If it were otherwise, s 4AA(1)(d) would operate to render ss 4AA(1)(a) and (c) otiose. There would be no need to identify hypothesised laws under ss 4AA(1)(a) or (c) if it was sufficient that the AFP learned of the suspected State offending during the course of an investigation of Commonwealth offending. 344 In summary, the defendants argue that s 4AA(1)(d) requires a close connection or relationship between the AFP investigation pursuant to the MCO authorisations and the State offences, and that that did not exist here. 345 The prosecution and Commonwealth, on the other hand, while accepting the relevance of considering the Commonwealth Parliament’s express incidental power under s 51(xxxix) of the Constitution, do not accept that such a close connection or relationship is required. They argue that the incidental power is not confined by necessity; rather it extends to matters attending or arising in the execution of the power under s 61 of the Constitution to execute and maintain the laws of the Commonwealth. Bearing in mind that an investigation of Commonwealth offences by the AFP involves the execution and maintenance of the AFP Act, they argue that it is sufficient for the purposes of s 4AA(1)(d)(ii) that the (hypothesised) investigation of the State offences arose in the course of the AFP’s investigation of Commonwealth offences pursuant to the MCO authorisations and Operation Ironside. 346 In addressing the parties’ arguments, we accept the relevance of their reference to authorities governing the breadth of the Commonwealth Parliament’s incidental power under s 51(xxxix) of the Constitution. It is not suggested that the relevant provisions of the SD Act were dependent for their validity upon, or otherwise required direct consideration of, this head of legislative power. The provisions of the SD Act governing the use and admissibility of intercepted communications are amply supported by the telecommunications power under s 51(v) of the Constitution. However, in articulating the breadth of the exceptions to the general prohibition upon the use and admissibility of those communications, the legislature invoked the notion of State offences with a federal aspect, as defined in the AFP Act. Accordingly, it is necessary to not only have regard to the definition of State offences with a federal aspect in s 4AA of the AFP Act, but also to interpret that definition in the context in which it appears in that Act. 347 At this point in the analysis, it becomes relevant to note that, under s 8(1)(baa) of the AFP Act, the AFP is authorised to investigate State offences that have a federal aspect. Understood in this context, it can be seen that the definition of State offences with a federal aspect in s 4AA(1) of that Act has been drafted by reference to the various heads of Commonwealth legislative power under the Constitution that might support the AFP’s investigation of State offences. It may be said that the terms and structure of s 4AA(1) indicate that it was intended to draw support for the AFP Act (and, in particular, for the AFP’s power to investigate State offences with a federal aspect under s 8(1)(baa)) from “as many -- 87 of 97 -- [2024] SASCA 82 The Court 84 heads of power as from time to time have been exercised by the Parliament to create offences against Commonwealth laws.”198 348 It would seem to follow from this that the reference in s 4AA(1)(d) to an investigation of State offences that is, or would be, incidental to an AFP investigation of Commonwealth offences, is to be understood as intended to invoke the full breadth of the express incidental power under s 51(xxxix) of the Constitution. 349 Turning to the scope of that power, s 51(xxxix) of the Constitution enables the Commonwealth Parliament to make laws with respect to “matters incidental to the execution of any power vested by this Constitution … in the Government of the Commonwealth … or in any department or officer of the Commonwealth”. This extends to matters incidental to the execution of the power, vested in s 61 of the Constitution, to execute and maintain the laws of the Commonwealth. Section 51(xxxix) in this operation depends upon “a matter ‘incidental to the execution’ of an executive power of the Commonwealth”.199 350 In Le Mesurier v Connor,200 Knox CJ, Rich and Dixon JJ described the express incidental power under s 51(xxxix) as extending to “something which attends or arises” in the exercise of power, distinguishing it from the implied incidental power in respect of matters incidental to the subject matter of a law. 351 In Victoria v Commonwealth,201 Jacobs J expanded upon the distinction between the express and implied incidental powers, and the breadth of the former:202 Matters incidental to the execution of an executive power are not limited to matters either adjectival or ancillary to the execution of that power. That is to say the “incidental” subject matter of s 51(xxxix) may be a matter of substance and not merely a matter in aid of or procedural to the relevant substantive power itself. The latter power is contained within the grant of the substantive power itself because it is incidental to, an incident of, the subject matter of power. But a distinction must be drawn between what is incidental or incident to the subject matter of a power and what is a matter incidental to the execution of a power. Compare Le Mesurier v. Connor.203 The distinction reflects a recognized difference in the meanings of the word “incidental”. The word may be used to describe a side occurrence which, though not essential to the main action, may be expected to arise in connexion with the main action. It may also be used to describe a side occurrence with stress on its independence of the main action. The distinction is so made in Fowler's Modern English Usage (1954 reprint), p.264, where it is also observed that a tendency has arisen to use the 198 R v Hughes (2000) 202 CLR 535 at [40] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Attorney-General (Cth) v Huynh (2023) 97 ALJR 298 at [47] (Kiefel CJ, Gageler and Gleeson JJ); and in the context of a similar legislative technique, S v Australian Crime Commission (2006) 149 FCR 361 at [41] (Emmett J) and XCIV v Australian Crime Commission (2015) 234 FCR 274 at [140] (Wigney J). 199 Davis v Commonwealth (1988) 166 CLR 79 at 111 (Brennan J). 200 Le Mesurier v Connor (1929) 42 CLR 481 at 497-498 (Knox CJ, Rich and Dixon JJ). 201 Victoria v Commonwealth (1975) 134 CLR 338. 202 Victoria v Commonwealth (1975) 134 CLR 338 at 413-414 (Jacobs J). 203 (1929) 42 CLR 481 at 497. -- 88 of 97 -- [2024] SASCA 82 The Court 85 adjective “incident” to describe the former and "incidental" to describe the latter. Thus the Oxford Dictionary defines the adjective "incident" first as "liable or apt to befall or occur to; likely to happen; hence, naturally appertaining or attaching". On the other hand, it defines "incidental" first as "occurring or liable to occur in fortuitous or subordinate conjunction with something else of which it forms no essential part". This, it seems to me, is the distinction between the implied incidental power and the express power in s. 51(xxxix.). Whatever is incident (in the above sense) to the subject matter of power comes within the ambit of the main power. It is incident to that power in that it naturally appertains and attaches to that power. However, what is incidental to the execution of a main power includes every matter which occurs or is liable to occur in subordinate conjunction with the execution of that power, even though it forms no essential part of the main power itself. It is subordinate but just as importantly it is in conjunction. Thus a subject matter incidental to the execution of a power may have a wider ambit than the power implied in respect of the incidents of a subject matter of power. It is itself a subject of legislative power (per Dixon J in British Medical Association v. The Commonwealth204) and that is so even though it only exists in subordinate conjunction with the execution of a main power. Whether or not a particular expenditure or proposed expenditure which does not fall within any particular subject matter of power nevertheless falls within this incidental power will depend on the facts and circumstances surrounding that proposed expenditure. Often it will be a matter of degree. Cf. Burton v. Honan.205 352 Similarly, in Davis v Commonwealth,206 Brennan J referred with support to the observations of Knox CJ, Rich and Dixon JJ in Le Mesurier v Connor in relation to the distinction between the express and implied incidental powers, and the scope of the former. His Honour said that “[t]he scope of the legislative power conferred by s 51(xxxix) in conjunction with s 61 depends on what the Executive Government has done or intends to do in execution of its power”, but extends to “a matter attending or arising in the execution of the executive power”.207 353 In the same case, Mason CJ, Deane and Gaudron JJ described s 51(xxxix) as enabling Parliament to legislate “in aid of an exercise of the executive power.”208 This description of s 51(xxxix) was adopted by Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in R v Hughes.209 354 Understood in this way, the scope of the express incidental power may be seen as both narrower and broader than the implied incidental power in respect of the Commonwealth’s various other heads of legislative power. It is narrower in the sense that it fixes only upon the execution of power, here executive power. However, it is broader in that it extends to all matters attending or arising in the exercise of that power, or at least in aid of those powers. Unlike the implied incidental power, it is not confined to matters incidental, in the sense of necessary 204 (1949) 79 CLR 201 at 274. 205 (1952) 86 CLR 169 at 179. 206 Davis v Commonwealth (1988) 166 CLR 79. 207 Davis v Commonwealth (1988) 166 CLR 79 at 111-112 (Brennan J). 208 Davis v Commonwealth (1988) 166 CLR 79 at 95 (Mason CJ, Deane and Gaudron JJ). 209 R v Hughes (2000) 202 CLR 535 at [39] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). -- 89 of 97 -- [2024] SASCA 82 The Court 86 for, or conducive to the success of, the exercise of federal legislative power in relation to a subject matter that is within power. 355 While relying principally upon the authorities governing the scope of the express incidental power, the prosecution and Commonwealth also argued that s 4AA(1)(d) might in addition, or perhaps in the alternative, reflect an intention to draw support for the authorisation of power in s 8(1)(baa) from the implied incidental power. 356 To the extent that the s 4AA(1)(d) reference to “incidental” might be said to be supported by, and hence informed by, the implied incidental power, it is relevant to observe that that power has been formulated in terms which include use of the word “necessary”. For example, in Grannall v Marrickville Margarine Pty Ltd,210 Dixon CJ, McTiernan, Webb and Kitto JJ described the implied incidental power in the following terms:211 In the next place, every legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter. 357 Similarly, in Burton v Honan,212 Dixon CJ said that “everything which is incidental to the main purpose of a power is contained within the power itself so that it extends to matters which are necessary for the reasonable fulfillment of the legislative power over the subject matter”. 358 However, the authorities have emphasised that the use of the word “necessary” in this context is not to be read as unduly narrowing the implied incidental power. For example, in Nationwide News Pty Ltd v Wills,213 Mason CJ referred to formulations of that power using the word “necessary”, and explained:214 The second difficulty which arises from the formulations already quoted is to be found in the use of the word “necessary”. If one thing emerges clearly from the decisions of this Court it is that, to bring a law within the reach of the incidental scope of a power, it is enough that the provision is appropriate to effectuate the exercise of the power; one is not confined to what is necessary for the effective exercise of the power. 359 Various other formulations of the scope of the implied incidental power have been offered in the authorities. For example, it has been held that it extends to a 210 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55. 211 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77 (Dixon CJ, McTiernan, Webb and Kitto JJ); quoted in Spence v Queensland (2019) 268 CLR 355 at [53] (Kiefel CJ, Bell, Gageler and Keane JJ). 212 Burton v Honan (1952) 86 CLR 169 at 177 (Dixon CJ). 213 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. 214 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27 (Mason CJ); subsequently quoted in Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 179 (Brennan J), Airservices Australia v Canadian Airlines (2000) 202 CLR 133 at [343] (McHugh J) and Burns v Corbett (2018) 265 CLR 304 at [127] (Nettle J). -- 90 of 97 -- [2024] SASCA 82 The Court 87 provision if it is “conducive to the success” of the main legislation,215 or “reasonably necessary to carry [the relevant head of power] into effect”.216 It has also been said that the implied incidental power is “in aid of”217 or “appendant to”218 the main power. In Mulholland v Australian Electoral Commission,219 Gleeson CJ observed that the word “necessary” has “different shades of meaning” and that “[t]here is, in Australia, a long history of judicial and legislative use of the term ‘necessary’, not as meaning essential or indispensable, but as meaning reasonably and appropriately adapted”. 360 Based upon the above, we would construe the reference in s 4AA(1)(d) of the AFP Act to an investigation of State offences that is, or would be, “incidental” to the AFP’s investigation of Commonwealth offences broadly, and as drawing upon the authorities in relation to the express incidental power under s 51(xxxix) of the Constitution. Whilst the primary judge relied essentially upon the ordinary meaning of the word “incidental”, rather than drawing expressly upon the authorities governing the scope of the express incidental power under s 51(xxxix) of the Constitution, we do not think there is any material difference between his Honour’s approach and the meaning we would give “incidental” in s 4AA(1)(d) of the AFP Act. 361 In our view, while the hypothesised investigation of State offences would need to have some connection to the AFP’s existing investigation of Commonwealth offences, we do not think that s 4AA(1)(d) requires much more than that the occasion for the hypothesised investigation arose in the course of the existing investigation. We do not think that s 4AA(1)(d) requires much more than that the evidence or suspicion of the commission of the State offences to be investigated arose in the course of the AFP’s investigation of Commonwealth offences. It may be that there would need to be some connection or link between the facts or subject matter of the existing AFP investigation and the State offences to be investigated. So an AFP investigation into organised crime involving drugs and money laundering may not be sufficient to justify an “incidental” investigation of the suspicion of some entirely unrelated instance of, say, sexual offending. However, we do not think anything more than some connection or link between the facts or subject matter would be required. An AFP investigation of State offences in these circumstances would be in subordinate conjunction to the existing AFP investigation of Commonwealth offences. 362 Construing “incidental” as it appears in s 4AA(1)(d) in this broad way would not render ss 4AA(1)(a) and (c) otiose. Unlike s 4AA(1)(d), those limbs of the 215 Re Wakim; Ex parte McNally (1999) 198 CLR 511 at [122] (Gummow and Hayne JJ); Stemp v Australian Glass Manufacturers Co Ltd (1917) 23 CLR 226 at 235 (Barton ACJ). 216 Victoria v Commonwealth (1975) 134 CLR 338 at 631 (Williams J). 217 Victoria v Commonwealth (1975) 134 CLR 338 at 414 (Jacobs J). 218 Australian Steamships Ltd v Malcolm (1914) 19 CLR 298 at 308 (Griffith CJ). 219 Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at [39] (Gleeson CJ); referred to with approval in Jones v Commonwealth (2023) 97 ALJR 936 at [42] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); see also Thomas v Mowbray (2007) 233 CLR 307 at [19] (Gleeson CJ), [101]-[103] (Gummow and Crennan JJ), [489]-[490] (Hayne J). -- 91 of 97 -- [2024] SASCA 82 The Court 88 definition of a State offence having a federal aspect do not require an existing AFP investigation. Further, and in any event, in circumstances where the structure and terms of s 4AA(1) evince an intention to draw support from all of the available and potentially relevant heads of Commonwealth legislative power under the Constitution, it is unsurprising that there would be significant overlap between the scope of the various limbs of the definition. 363 On this broad view, s 4AA(1)(d) was plainly satisfied. The AFP investigation of Commonwealth offences pursuant to Operation Ironside related to potential offending by participants in organised crime involving the importation and trafficking of controlled drugs and money laundering. We have set out earlier in these reasons the list of Commonwealth offences listed in the MCO authorisations, and it is accepted that this reflected the scope of the investigation in fact being undertaken by the AFP when it came across the AN0M communications. It was also accepted that the AFP investigation related to the potential criminal activities of the Comancheros, and indeed the defendants (as members of the Comancheros and users of the AN0M platform). 364 The suspicion of commission of the State offences charged in these proceedings thus arose in the course of the existing AFP investigation of Commonwealth offences. Further, there was a clear connection between the subject matter of the AFP investigation and the State offences. Whilst the former was focused upon the Comancheros’ potential involvement in the importation and trafficking of controlled drugs, and money laundering, the latter was focused upon the defendants’ possession of firearms. However, despite this difference in focus, there was an overlap between the two. The State offences included an allegation that the defendants participated in the Comancheros’ criminal activity, and the prosecution case is that the utility and firearms the subject of the State offences were for use in the drug trafficking activities of the Comancheros. 365 This approach is consistent with the reasoning of Chesterman J in R v Ellis.220 In that case, the AFP had been investigating the importation of heroin. In rejecting a challenge to the AFP’s power to investigate a State offence, his Honour said that “[i]f in performing that function it should discover that persons suspected of importing heroin were also dealing in drugs contrary to the laws of a State, investigation of the latter activity would be incidental or conducive to the performance of the function of investigating importation”.221 366 In our view, the above is sufficient to establish that an investigation by the AFP of the State offences the subject of Counts 1-3 and 8-14 would have been incidental to the AFP’s existing investigation for the purposes of s 4AA(1)(d) of the AFP Act. 220 R v Ellis (2001) 162 FLR 423. 221 R v Ellis (2001) 162 FLR 423 at [19] (Chesterman J). -- 92 of 97 -- [2024] SASCA 82 The Court 89 367 However, even if it was necessary to go further, and establish that an AFP investigation of the State offences would have been in aid of its existing investigation of Commonwealth offences, we are satisfied that would have been so in the circumstances of the present case. Here, the significant factual overlap between the Commonwealth offending being investigated and the alleged State offending meant that investigation of the latter would have been of assistance to the existing investigation. There would have been a real prospect of an AFP investigation of the State offences revealing information, and lines of inquiry, relevant to its investigation of the Commonwealth offences. 368 For example, there is a real prospect that investigation of the defendants’ alleged participation in the Comancheros’ criminal activities through the use of the Holden utility stored at Mr Wakefield’s Newton premises would have revealed information, and lines of inquiry, in relation to the AFP’s investigation of the Comancheros’ drug trafficking activities more generally. 369 It is also relevant to observe in this context that the potential Commonwealth offences being investigated by the AFP included not only the drug and money laundering activities of the Comancheros, but also the use of a telecommunications network with the intention to commit a serious offence in contravention of s 474.14(1) of the Criminal Code. An investigation into the potential commission of offences under the Firearms Act by the defendants would have assisted the AFP to determine whether persons, including the defendants, were using the telecommunications system to commit offences in contravention of s 474.14(1) of the Criminal Code. 370 For these reasons, we agree with the primary judge’s conclusion that the hypothetical investigation of the charged State offences by the AFP would have been incidental to its existing investigation of Commonwealth offences, with the result that those offences were State offences having a federal aspect under s 4AA(1)(d) of the AFP Act. A prudential approach 371 Having concluded that the State offences the subject of Counts 1-3 and 8-14 are State offences with a federal aspect under s 4AA(1)(d) of the AFP Act, it is necessary to consider whether it is appropriate for this Court to go further and consider the potential application of s 4AA(1)(a) (in relation to Count 1) and s 4AA(1)(c) (in relation to Counts 1-3 and 8-14). The parties were agreed that the authorities support a prudential approach which ought to incline this Court against considering the potential application of these other limbs of s 4AA(1) of the AFP Act. 372 As recounted earlier in these reasons, the primary judge found that Counts 1- 3 and 8-14 were State offences having a federal aspect under s 4AA(1)(d) of the AFP, but nevertheless went on to consider whether they were State offences having a federal aspect under s 4AA(1)(a) or s 4AA(1)(c) of the AFP Act in case he was -- 93 of 97 -- [2024] SASCA 82 The Court 90 wrong in his approach or conclusion in relation to s 4AA(1)(d).222 Whilst it was not necessary for his Honour to consider these additional bases for meeting the defendants’ challenge to the admissibility of the AN0M communications, his decision to do so was consistent with the “general rule” or “conventional approach” that applies to trial courts; namely, that “a judge should determine all issues before him or her to assist the appeal process and obviate recourse to a new trial”.223 373 However, the principles governing the approach to be taken by an intermediate appellate court in relation to non-dispositive issues are not the same as those governing trial courts. In Boensch v Pascoe,224 Kiefel CJ, Gageler and Keane JJ said that, generally speaking, “an appellate court should confine itself to determining only those issues which it considers to be dispositive of the justiciable controversy raised by the appeal”. Their Honours went on to say that “[i]t is important to the efficiency of the system as a whole that intermediate courts of appeal should not feel compelled to treat determination of non-dispositive issues in appeals before them as the norm”.225 374 The authorities further suggest that where a non-dispositive issue is constitutional in nature, an intermediate appellate court should be particularly reluctant to decide it. The High Court has emphasised, on numerous occasions,226 that “[i]t is not the practice of the Court to investigate and decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties”.227 375 In Mineralogy Pty Ltd v Western Australia,228 Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ referred to this “cautious and restrained approach” and said:229 Underlying the prudential approach is recognition that the function performed by the Full Court in answering a question of law stated for its opinion is not advisory but adjudicative. Underlying it also is recognition that performance of an adjudicative function in an adversary setting “proceeds best when it proceeds if, and no further than is, warranted to 222 R v TB (No 6) [2023] SASC 140 at [41]. 223 Massoud v Nationwide News Pty Ltd (2022) 109 NSWLR 468 at [35] (Leeming JA, Mitchelmore JA and Simpson AJA agreeing), quoting Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7] (McFarlane JA, Gleeson JA and Garling J agreeing). 224 Boensch v Pascoe (2019) 268 CLR 593 at [7] (Kiefel CJ, Gageler and Keane JJ; Bell, Nettle, Gordon and Edelman JJ agreeing at [101]); see also Tabet v Gett (2010) 240 CLR 537 at [97]-[98] (Heydon J). 225 Boensch v Pascoe (2019) 268 CLR 593 at [8] (Kiefel CJ, Gageler and Keane JJ; Bell, Nettle, Gordon and Edelman JJ agreeing at [101]). 226 Mineralogy Pty Ltd v Western Australia (2021) 274 CLR 219 at [56] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ); LibertyWorks Inc v Commonwealth (2021) 274 CLR 1 at [90] (Kiefel CJ, Keane and Gleeson JJ); Zhang v Commissioner of the Australian Federal Police (2021) 273 CLR 216 at [21]-[22] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ). 227 Lambert v Weichelt (1954) 28 ALJ 282 at 283 (Dixon CJ on behalf of the Court). 228 Mineralogy Pty Ltd v Western Australia (2021) 274 CLR 219. 229 Mineralogy Pty Ltd v Western Australia (2021) 274 CLR 219 at [57]-[58] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) (omitting citations). -- 94 of 97 -- [2024] SASCA 82 The Court 91 determine a legal right or legal liability in controversy”. That is to say, “the adjudicatory process is most securely founded when it is exercised under the impact of a lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity”. 376 Relevantly, their Honours identified one of the implications of “the prudential approach” as being “that the necessity of answering the question of law to the judicial resolution of the controversy may not sufficiently appear where there remains a prospect that the controversy can be judicially determined on another basis”.230 This prudential approach to the resolution of constitutional questions has been followed by intermediate appellate courts,231 including in the criminal context.232 377 As explained, in our conclusions that Counts 1-3 and 8-14 are State offences having a federal aspect under s 4AA(1)(d) of the AFP Act, and hence that Question 6 should be answered “Yes”, is sufficient to engage the s 45(5)(c) exception to the general inadmissibility of protected information under the SD Act. It is thus not necessary for this Court to consider whether some or all of those Counts might also qualify as State offences having a federal aspect on some additional basis (that is, under ss 4AA(1)(a) or (c) of the AFP Act). As such, the issues raised by Questions 4 and 5 are non-dispositive issues. And unlike the position before the primary judge, there is no general obligation on this Court to decide them. Further, Questions 4 and 5 require direct consideration of the scope of the Commonwealth Parliament’s legislative power under s 51(v) and s 51(xxix) of the Constitution. 378 Consistently with the authorities mentioned above, it is appropriate that this Court take the prudential approach in circumstances where the issues raised by Questions 4 and 5 are non-dispositive and turn upon consideration of the scope of the Commonwealth Parliament’s legislative power under the Constitution. Accordingly, we would decline to answer these questions on the basis that it is not necessary, and therefore undesirable, that this Court do so. PART E: CONCLUSION 379 For the reasons set out, we would answer the questions reserved for this Court’s consideration as follows: Question 1 230 Mineralogy Pty Ltd v Western Australia (2021) 274 CLR 219 at [60] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). 231 Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) (2021) 106 NSWLR 41 at [20] (Leeming JA, Bathurst CJ and Bell P agreeing); CMU16 v Minister for Immigration and Border Protection (2020) 277 FCR 201 at [65] (Jagot, Yates and Stewart JJ); Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 125 FCR 529 at [73] (Goldberg and Finkelstein JJ); Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 642 (Mason P, Gleeson CJ and Priestley JA agreeing). 232 Proudfoot v Director of Public Prosecutions (Vic) (2020) 283 A Crim R 332 at [95]-[98] (Tate, McLeish and Hargrave JJA); Garth v The Queen (2016) 261 A Crim R 583 at [19]-[22] (Bathurst CJ, Beazley P and Simpson JA agreeing). -- 95 of 97 -- [2024] SASCA 82 The Court 92 In respect of Interlocutory Application [FDN 166] filed by the defendants on 5 December 2022, did the AN0M Application and system (together the AN0M Platform), as described in R v TB [2023] SASC 45 … involve an interception of a communication passing over a telecommunications system contrary to s 7(1) of the [TIA Act]? Answer to Question 1: No. Question 2 If the answer to Question 1 is “Yes”, is the information and records obtained as a result of that interception inadmissible at the trial of the defendants? Answer to Question 2: Does not arise. Question 3 In respect of Interlocutory Application [FDN 227] filed by the defendants on 3 February 2023, on the evidence identified in R v TB (No 5) [2023] SASC 118: 3.1 is MCO No. 1 invalid because it misstates the statutory criteria that were mandatory considerations under section 15GI(2) of the Crimes Act (facial invalidity) and thereby manifests that Deputy Commissioner Neil Gaughan acted on a misconstruction of the applicable statutory criteria in ss 15GI and 15GK of the Crimes Act (misconstruction of the law)? and/or 3.2 is MCO No. 2 invalid because it misstates the statutory criteria that were mandatory considerations under section 15GI(2) of the Crimes Act (facial invalidity) and thereby manifests that Deputy Commissioner [Ian McCartney] acted on a misconstruction of the applicable statutory criteria in ss 15GI and 15GK of the Crimes Act (misconstruction of the law)? Answer to Question 3.1: No. Answer to Question 3.2: No Question 4 In respect of Interlocutory Application [FDN 346] filed by the defendants on 23 March 2023, is Count 1 as contained in the ex-officio information dated 17 November 2021 and the subject of matter SCCRM-21-460, a State offence having a federal aspect within the meaning of s 4AA(1)(a) of the Australian Federal Police Act 1979 (Cth) (AFP Act)? Answer to Question 4: Not necessary to answer. Question 5 In respect of Interlocutory Application [FDN 346] filed by the defendants on 23 March 2023, are each of Counts 1-3 and 8-14 as contained in the ex-officio Information dated 17 November 2021 and the subject of matter SCCRM-21-460, State offences having a federal aspect within the meaning of s 4AA(1)(c) of the AFP Act having regard to ss 4AA(2) and 4AA(3)(e) of that same Act? Answer to Question 5: Not necessary to answer. -- 96 of 97 -- [2024] SASCA 82 The Court 93 Question 6 In respect of Interlocutory Application [FDN 346] filed by the defendants on 23 March 2023, are each of Counts 1-3 and 8-14 as contained in the ex-officio Information dated 17 November 2021 and the subject of matter SCCRM-21-460, State offences having a federal aspect within the meaning of s 4AA(1)(d) of the AFP Act? Answer to Question 6: Yes. -- 97 of 97 --