Commissioner of the Australian Federal Police v Luppino

FEDERAL COURT OF AUSTRALIA
Commissioner of the Australian Federal Police v Luppino [2021] FCAFC 43

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

File number: SAD 163 of 2019

Judgment of: BESANKO, WIGNEY AND ABRAHAM JJ

Date of judgment: 25 March 2021

Catchwords: CRIMINAL LAW — appeal from an order of the primary judge that an order of a magistrate made pursuant to s 3LA of the Crimes Act 1914 (Cth) is invalid — where an order pursuant to s 3LA was made in respect of a smart phone seized during the execution of a warrant for the search of a person — whether natural justice attaches to an application under s 3LA and the appellant was entitled to a hearing before the s 3LA Order was made — statutory construction of s 3LA — whether the s 3LA Order requires details of the information or assistance to be provided by the person to whom the order is directed — whether the s 3LA Order requires information as to the place at which and the time within which the information or assistance must be provided — whether the s 3LA Order contains the required details of the particular computer or data storage device which is the subject of the order — whether smart phone is a “computer or data storage device” for the purposes of s 3LA — whether breaches of various statutory provisions result in invalidity — whether the legislature intended to abrogate or curtail the privilege against self-incrimination — appeal allowed

Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6

Crimes Act 1914 (Cth) Div 2 of Pt 1AA, ss 3, 3C, 3E, 3F, 3G, 3K, 3L, 3LA, 3LAA, 3UC, 3ZC, 3ZH, 3ZJ, 3ZL, 3ZQM, 3ZQO, 23ZA, 23ZD, 23ZF

Crimes Legislation Amendment Act 2011 (No 2) (Cth)

Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth)

Criminal Code 1995 (Cth) s 400.4

Cybercrime Act 2001 (Cth)

Cases cited:
Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52
Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166
Commissioner of Police v Tanos [1958] 98 CLR 383
Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2018] FCAFC 237; (2018) 262 FCR 449
Coward v Allen (1984) 52 ALR 320
CXXXVIII v Honourable Justice Richard Conway White [2020] FCAFC 75; (2020) 274 FCR 170
Dunesky & Anor v Commonwealth of Australia & Ors [1996] 89 A Crim R 372; (1996) 33 ATR 491
Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309
Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; (2007) 231 CLR 531
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384
Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1
Lacey v Attorney-General for the State of Queensland [2011] HCA 10; (2011) 242 CLR 573
Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32; (1970) 123 CLR 327
Lansell House Pty Ltd v Federal Commissioner of Taxation [2010] FCA 329; (2010) 76 ATR 19
Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196
Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455
Luppino v Fisher [2018] FCA 2016
Luppino v Fisher (No 2) [2019] FCA 1100
Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554
Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 381 ALR 601
North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569
Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50; (2015) 236 FCR 199
Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
R v Gee [2003] HCA 12; (2003) 212 CLR 230
Reid v Howard [1995] HCA 40;(1995) 184 CLR 1
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
SeaShepherd Australia Ltd v Federal Commissioner of Taxation [2013] FCAFC 68; (2013) 212 FCR 252
Smethurst v Commissioner of Police [2020] HCA 14; (2020) 376 ALR 575
Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281
State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606
Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Tasker v Fullwood [1978] 1 NSWLR 20
Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22
X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92
Pearce D, Statutory Interpretation (9th ed, LexisNexis, Butterworths, 2019)

Division: General Division

Registry: South Australia

National Practice Area: Federal Crime and Related Proceedings

Number of paragraphs: 249

Date of hearing: 21 May 2020

Counsel for the Appellant: Mr N Williams SC with Ms S Zeleznikow

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the First Respondent: Mr S McDonald

Solicitor for the First Respondent: Patsouris & Associates

Counsel for the Second Respondent: The Second Respondent entered a Submitting Notice, save as to costs

ORDERS

SAD 163 of 2019

BETWEEN:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Appellant

AND:
DANIEL LUPPINO

First Respondent

GREGORY CHARLES FISHER

Second Respondent

ORDER MADE BY:

BESANKO, WIGNEY AND ABRAHAM JJ

DATE OF ORDER:

25 MARCH 2021

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the primary judge made on 15 July 2019 be set aside and in lieu thereof there be the following orders:
(1)The applicant’s application for judicial review pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) be dismissed.
(2)The applicant pay the respondents’ costs of the application to be taxed in default of agreement.

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

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

REASONS FOR JUDGMENT
BESANKO J:
INTRODUCTION

This is an appeal from an order made by a judge of this Court on 15 July 2019. The appellant is the Commissioner of the Australian Federal Police (the Commissioner). The respondents are Daniel Luppino (Mr Luppino) and Mr Gregory Charles Fisher SM (the magistrate). The magistrate is a magistrate in the Magistrates Court of South Australia. The subject of the appeal is an order made by the primary judge that the order of the magistrate made on 30 August 2018 under s 3LA of the Crimes Act 1914 (Cth) (the Crimes Act) with respect to Mr Luppino is invalid.
BACKGROUND
Mr Luppino made an application for judicial review of an ex parte order made by the magistrate under s 3LA of the Crimes Act. On 30 August 2018, the magistrate made an order under s 3LA of the Crimes Act requiring Mr Luppino to provide to a constable any information or assistance which was reasonable and necessary to allow a constable to access data on a Samsung mobile phone and to copy and/or convert that data into an intelligible form. I will refer to this as the Section 3LA Order. The Samsung mobile phone had been seized by members of the Australian Federal Police (the AFP) on 27 August 2018. It was seized from a vehicle being driven by Mr Luppino and in the course of the execution by the AFP of a search warrant issued by a different magistrate on 24 August 2018.
The Section 3LA Order was served on Mr Luppino on 30 August 2018 by Sergeant Nigel Booth who is an AFP agent. At the time the order was served, Sergeant Booth asked Mr Luppino to provide the password or passwords to the Samsung mobile phone. Mr Luppino did not do so and he has not provided the password since that time.
On 5 September 2018, Mr Luppino commenced proceedings seeking an order for review of the Section 3LA Order pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
The magistrate did not take part in the proceedings below or on the appeal. He has indicated that he will submit to any order made by the Court, save as to costs.
The proper construction and application of s 3LA of the Crimes Act as in force on 30 August 2018 is at the heart of the appeal. That section is set out below (at [13]).
THE FACTS
On 24 August 2018, Mr McLeod SM issued a warrant to Federal Agent Clow entitled “Search Warrant for Search of a Person” pursuant to s 3E(2) of the Crimes Act. In that warrant, Mr McLeod SM stated that he was satisfied that there were reasonable grounds for suspecting that Mr Luppino had in his possession evidential material as defined in the Crimes Act which satisfied three conditions, the third of which was that identified items would afford evidence as to the commission of the offence of dealing in proceeds of crime contrary to s 400.4(1) of the Criminal Code 1995 (Cth). The operative part of the warrant was in the following terms:
I hereby issue this warrant which authorises you to conduct a frisk and ordinary search of the person described above.
AND by virtue of section 3F(2) of the Crimes Act 1914 this warrant authorises the executing officer or a constable assisting to do all of the following:
•Conduct a frisk and ordinary search of the person described above, search things found in the possession of the person, and search any conveyance recently used by the person, provided that a constable assisting who is not a constable does not take part in searching a person;
•seize any evidential material found in the course of the search which satisfies ALL of the above three conditions;
…
(Emphasis in the original.)
Federal Agent Clow was one of a number of AFP officers involved in the execution of the warrant on 27 August 2018. He seized, relevantly, three items pursuant to the warrant and they were described in his evidence before the primary judge as follows:
1 Samsung mobile phone in an Otterbox case (that is, a mobile phone case) which was found on [Mr Luppino’s] person (the Samsung mobile).
1 Samsung mobile phone, gold in colour, secured with the Knox Application which was found in the centre console of the vehicle [(the gold Samsung mobile)]
1 Hewlett‑Packard laptop (the laptop) found in the footwell of the passenger’s side rear seat.
Federal Agent Clow’s evidence was that Mr Luppino told him that the Samsung mobile phone did not require a password. Mr Luppino provided Federal Agent Clow with the password for the laptop. When Federal Agent Clow asked Mr Luppino whether the gold Samsung mobile phone required a password, Mr Luppino said “no comment”.
On 30 August 2018, Sergeant Booth made an application for an order under s 3LA of the Crimes Act. The application was supported by an affidavit sworn by Sergeant Booth. That affidavit was partially redacted on public interest grounds. The application was in the following terms:
In the Magistrates Court
At Adelaide, South Australia No: 1
Crimes Act 1914
Section 3LA
Application for an order to provide information or assistance
I, Nigel Ray BOOTH being a constable as defined in the Crimes Act 1914 state that a search warrant has been executed under section 3E of the Crimes Act 1914 in respect of the person specified below. I hereby apply for an order requiring the person specified below to provide to a constable any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following:
•access data held in, or accessible from, a computer or data storage device which has been seized under the warrant;
•copy data held in, or accessible from, a computer or data storage device which has been seized under the warrant to another data storage device;
•convert into documentary form or another form intelligible to a constable data held in, or accessible from, a computer or data storage device which has been seized under the warrant;
•convert into documentary form or another form intelligible to a constable data held in a data storage device to which the data was copied under subsection 3LA(l)(b) of the Crimes Act 1914;
•convert into documentary form or another form intelligible to a constable data held in a data storage device removed from warrant premises under subsection 3L(1A) of the Crimes Act 1914.
Warrant premises/Person to whom the warrant relates:
Daniel LUPPINO, born [redacted]
Person in respect of whom the order is sought: Daniel LUPPINO, born [redacted]
Time period within which the assistance is sought: within 24 hours of any order.
Location at which the assistance is sought to be provided: Adelaide, South Australia
Date of this application: 30/08/2018
Name and title of applicant: Federal Agent Nigel BOOTH, Australian Federal Police
Sergeant Booth also provided the magistrate with the form of the order pursuant to s 3LA which he sought and that order was complete in all respects save for the name of the magistrate and his signature and the date. The magistrate did not make any alterations to the substantive form of the order provided to him by Sergeant Booth and the Section 3LA Order which was made is as follows:
Crimes Act 1914
Section 3LA
Order to provide information or assistance
To: Daniel LUPPINO, born [redacted]
Whereas an application has been made by Federal Agent Nigel BOOTH, a constable as defined in the Crimes Act 1914, in relation to a search warrant issued under section 3E of the Crimes Act 1914 in respect of Daniel LUPINO (sic), born [redacted] for an order under section 3LA of the Crimes Act 1914;
And whereas I am satisfied that:
•there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, a computer or data storage device which has been seized under the warrant;
AND you are the owner or lessee of the computer or device, or
you are an employee of the owner or lessee of the computer or device, or
you are a person who uses or has used the computer or device, or
you are a person engaged under a contract for services by the owner or lessee of the computer or device, or
you are a person who is or was a system administrator for the system including the computer or device, or
you are reasonably suspected of having committed the offence stated in the relevant warrant
AND
you have relevant knowledge of;
the computer or device or a computer network of which the computer or device forms or formed a part; and
measures applied to protect data held in, or accessible from, the computer or device
I, G C Fisher, a magistrate within the meaning of the Crimes Act 1914, hereby order you to provide to a constable any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following:
•access data held in, or accessible from, a computer or data storage device which has been seized under the warrant;
•copy data held in, or accessible from, a computer or data storage device which has been seized under the warrant to another data storage device;
•convert into documentary form or another form intelligible to a constable data held in, or accessible from, a computer or data storage device which has been seized under the warrant;
•convert into documentary form or another form intelligible to a constable data held in a data storage device to which the data was copied under subsection 3LA(1)(b) of the Crimes Act 1914;
•convert into documentary form or another form intelligible to a constable data held in a data storage device removed from warrant premises under subsection 3L(1A) of the Crimes Act 1914.
You must provide the information or assistance within 24 hours at Adelaide, South Australia.
The requirement on you to provide the information or assistance is subject to the condition that
NOTE: By virtue of section 3LA(5) of the Crimes Act 1914, it is an offence punishable by 2 years imprisonment for a person to fail to comply with this order.
Dated: 30/8/18
[Signed]
A Magistrate in and for the State of South Australia
Sergeant Booth served the order on Mr Luppino on 30 August 2018 at 1.50 pm. The transcript of the conversation between Sergeant Booth and Mr Luppino included the following passage:
Q4:     … Now, Daniel, are you able to provide me with the password to that Samsung?
A:       Don’t know. Don’t know it.
Q5:     You don’t know it?
A:       Nah.
Q6:     It was your phone.
A:       Nah.
Q7:     Is that correct?
A:       No.
…
Q10:    … and what we might do is if you – you don’t know the password at all?
A:       (No audible reply).
Q11:    Have you used that phone before?
A:       No.
THE LEGISLATIVE HISTORY OF SECTION 3LA
Section 3LA as it was on the date which is relevant to this proceeding (i.e., 30 August 2018) was as follows:
3LA Person with knowledge of a computer or a computer system to assist access etc.
(1)A constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following:
(a)access data held in, or accessible from, a computer or data storage device that:
(i)        is on warrant premises; or
(ii)has been moved under subsection 3K(2) and is at a place for examination or processing; or
(iii)      has been seized under this Division;
(b)copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device;
(c)convert into documentary form or another form intelligible to a constable:
(i)data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or
(ii)data held in a data storage device to which the data was copied as described in paragraph (b); or
(iii)data held in a data storage device removed from warrant premises under subsection 3L(1A).
(2)      The magistrate may grant the order if the magistrate is satisfied that:
(a)there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and
(b)       the specified person is:
(i)reasonably suspected of having committed the offence stated in the relevant warrant; or
(ii)       the owner or lessee of the computer or device; or
(iii)an employee of the owner or lessee of the computer or device; or
(iv)a person engaged under a contract for services by the owner or lessee of the computer or device; or
(v)       a person who uses or has used the computer or device; or
(vi)a person who is or was a system administrator for the system including the computer or device; and
(c)       the specified person has relevant knowledge of:
(i)the computer or device or a computer network of which the computer or device forms or formed a part; or
(ii)measures applied to protect data held in, or accessible from, the computer or device.
(3)      If:
(a)the computer or data storage device that is the subject of the order is seized under this Division; and
(b)the order was granted on the basis of an application made before the seizure;
the order does not have effect on or after the seizure.
Note:     An application for another order under this section relating to the computer or data storage device may be made after the seizure.
(4)If the computer or data storage device is not on warrant premises, the order must:
(a)specify the period within which the person must provide the information or assistance; and
(b)specify the place at which the person must provide the information or assistance; and
(c)specify the conditions (if any) determined by the magistrate as the conditions to which the requirement on the person to provide the information or assistance is subject.
(5)      A person commits an offence if the person fails to comply with the order.
Penalty for contravention of this subsection:      Imprisonment for 2 years.

The legislative history of this section and provisions associated with it is as follows.
Section 3LA was introduced into the Crimes Act by the Cybercrime Act 2001 (Cth). In its original form, the section authorised an assistance order, that is, an order for the provision of information or assistance in respect of data held in, or accessible from, a computer on premises which were the subject of a warrant. The primary judge noted (at [176]) that as originally enacted, s 3LA authorised a magistrate to grant an order on the application of an officer executing a search warrant at warrant premises which required a specified person to provide any information or assistance which was reasonable and necessary to allow the officer to do one or more of the following:
(a)access data held in, or accessible from, a computer that is on the warrant premises;
(b) copy the data to a data storage device;
(c) convert the data into documentary form.
The Cybercime Act introduced the definitions of “data” and “data storage device” into the Crimes Act. Those definitions are in s 3(1) of the Crimes Act and are as follows:
data includes:
(a)information in any form; and
(b)any program (or part of a program).
data storage device means a thing containing, or designed to contain, data for use by a computer.
Section 3LA as originally enacted did not contain a power to grant an order with respect to a computer that had been seized pursuant to a warrant issued under s 3E or which had been moved to another location under s 3K (emphasis added). A provision which is related to s 3LA is s 3L and that section was amended by the Cybercrime Act and, following those amendments, it authorised an officer executing a warrant in relation to premises and a constable assisting such an officer, to operate electronic equipment at such premises to access data.
The Revised Explanatory Memorandum in relation to the Cybercrime Bill 2001 addressed the purpose of s 3LA in the following manner:
Proposed section 3LA would enable a law enforcement officer executing a search warrant to apply to a magistrate for an ‘assistance’ order. To grant the order, the magistrate would have to be satisfied (i) of the existence of reasonable grounds to suspect a computer on search premises contains evidence of an offence; (ii) that the subject of the order is reasonably suspected of the offence or is the owner of the computer or computer system, or a current employee of the owner; and (iii) that the subject of the order has relevant knowledge of the functioning of the computer or system or measures applied to protect the computer or system.
The person to whom the order is directed would be required to provide the officer, to the extent reasonably practicable, with such information or assistance as is necessary to enable the officer to access data on the computer system, copy it to a storage device or convert it to documentary form. For example, a person could be required to explain how to access the system or to provide a password to enable access.
The Attorney-General, in his Second Reading Speech in relation to the Cybercrime Bill 2001, explained the amendment to s 3L and the introduction of s 3LA in the following manner:
Investigation powers
•The bill will enhance the criminal investigation powers in the Crimes Act 1914 and Customs Act 1901 relating to the search, seizure and copying of electronically stored data. The large amounts of data which can be stored on computer drives and disks and the complex security measures, such as encryption and passwords, which can be used to protect that information present particular problems for investigators. The proposed enhancement of search and seizure powers will assist law enforcement officers in surmounting those problems.
The proposed amendments would clarify that a search warrant can be used to access data that is accessible from, but not held on, electronic equipment at the search premises. As most business computers are networked to other desktop computers and to central storage computers, it is critical that law enforcement officers executing a search warrant are able to search not only material on computers located on the search premises but also material accessible from those computers but located elsewhere.
Computer equipment and disks would be able to be examined and processed off site if this is significantly more practicable than processing them on site. The proposed amendment recognises that searching computers and disks can be a difficult and time consuming exercise because of the large amount of information they can store and the application of security measures, such as encryption. A further proposed amendment would permit officers to copy all data held on a computer hard drive or data storage device where some of the data is evidential material or if there are reasonable grounds to suspect the data contains evidential material.
A magistrate would be able to order a person with knowledge of a computer system to provide such information or assistance as is necessary and reasonable to enable the officer to access, copy or print data. Such a power is contained in the draft Council of Europe Convention on Cybercrime and will assist officers in gaining access to encrypted information.
Section 3LA was substantially amended by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) (the 2010 Amendment). The authors of the Replacement Explanatory Memorandum for the Bill identify six limitations in s 3LA which were said to have been revealed by operational experience. One of the limitations identified is that “there is no provision allowing assistance to be sought to access data stored in places other than a computer (e.g., a USB drive)”. As stated in the Replacement Explanatory Memorandum, the amendments to s 3LA(1) had the effect of providing that, inter alia:
[The] source of material that an assistance order can apply to will be expanded to include data storage devices (including USB drives and external hard drives), rather than being limited to data held in, or accessible from, a computer. This change is necessary to keep pace with changes in technology that allow data to be stored in places other than a computer on the premises.
The 2010 Amendment inserted subsections (3) and (4) (in a form similar to their present form) into s 3LA. The Replacement Explanatory Memorandum refers to subsections (3) and (4) in the following manner:
Subsections 3LA(3) & 3LA(4)
Currently, when and for how long an assistance order is in force is not specified. New subsections 3LA(3) and 3LA(4) will together clarify that a constable must obtain separate orders from a magistrate for requiring a person’s assistance before and after the seizure of a computer or data storage device. Where an order requiring a person to provide assistance is issued before equipment is seized, the order will only be valid until the equipment is seized. If the officer requires additional information or assistance after the equipment is seized, he or she will have to apply to the magistrate for another order.
After the equipment has been taken from the warrant premises, it is necessary to require a separate order to be sought, to ensure that the order specifies the timeframe in which assistance is to be provided, where it is to be provided and any other conditions the magistrate considers appropriate.
(Emphasis in the original.)
The Attorney-General, in the original Second Reading Speech delivered to the House of Representatives on 16 September 2009, said the following with respect to the 2010 Amendment:
Organised crime groups are sophisticated and make full use of rapidly advancing technology.
The bill better enables law enforcement agencies to examine and search electronic equipment in an environment where, increasingly, organised crime is transacted through electronic equipment and over the internet.
This ensures that law enforcement officers are able to access data stored on, or accessible from, electronic equipment that is seized or moved from warrant premises.
New provisions will also allow a magistrate to order a person to provide assistance in accessing data on a computer or data storage device after it has been seized.
This power, which is currently only available when the computer is on the warrant premises, will assist law enforcement officers in overcoming challenges posed by technological developments such as encryption techniques.
Minor amendments were made to s 3LA by the Crimes Legislation Amendment Act 2011 (No 2) (Cth) (Sch 3, item 15 which came into effect on 3 March 2011). They are not such as to require separate consideration.
THE GROUNDS OF APPEAL AND THE GROUNDS OF THE NOTICE OF CONTENTION
The primary judge held that the Section 3LA Order was invalid on a number of grounds. There are five grounds of appeal and four grounds in the Notice of contention.
Ground 1 of the appeal alleges that the primary judge erred in not concluding that the magistrate was not obliged to give Mr Luppino a hearing before he made the Section 3LA Order. The primary judge did not express a concluded view about Mr Luppino’s ground of review to the effect that he was entitled to a hearing before the Section 3LA Order was made. Grounds 1, 2 and 3 of the Notice of contention relate to the question of whether Mr Luppino was entitled to a hearing before the Section 3LA Order was made and are to the effect that he was entitled to such a hearing. In view of the primary judge’s approach to the issue, I will address Ground 1 of the appeal and Grounds 1, 2 and 3 of the Notice of contention after I have addressed the other grounds of appeal and the other ground of the Notice of contention.
Each of Grounds 2, 3 and 4 of the appeal and Ground 4 of the Notice of contention relates to whether the Section 3LA Order contains the information required by s 3LA and, in particular:
(1)the required details of the information or assistance, or both, to be provided by the person (s 3LA) (Ground 2);
(2)the required information as to the place at which the person must provide the information or assistance (s 3LA(4)(b)) (Ground 3) and the period within which the person must provide the information or assistance (s 3LA(4)(a)) (Ground 4 of the Notice of contention); and
(3)the required details of the particular computer or data storage device which is the subject of the order (s 3LA) (Ground 4).
These matters raise issues concerning the proper construction s 3LA.
There is a further issue in relation to each of these grounds and it arises because of an alternative argument put by the Commissioner. The alternative argument is that, even if the Section 3LA Order did not contain the information required by s 3LA in one or more of these respects, nevertheless, that circumstance did not result in the invalidity of the order.
Ground 5 of the appeal raises an issue as to the meaning of the terms “computer” and “data storage device” and whether the magistrate formed the state of satisfaction required by law that the order he was proposing to make related to a computer or data storage device.
An issue arose which was common to all of the issues of statutory construction and it concerned the principle applied in the construction of statutory provisions that the legislature does not, in the absence of clear words, intend to abrogate or curtail common law rights or freedoms. Mr Luppino relied on this principle in support of his arguments concerning the proper construction of s 3LA of the Crimes Act. The common law fundamental right or freedom said to be relevant in this case is the privilege against self-incrimination, which counsel for Mr Luppino described as a subset of the right to silence. There was a dispute before the primary judge as to whether an obligation to provide information or assistance pursuant to s 3LA abrogated or curtailed that privilege. The primary judge held, after referring to Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281 at 294 per Gibbs CJ, and Reid v Howard [1995] HCA 40;(1995) 184 CLR 1 at 5 per Deane J and at 11–14 per Toohey, Gaudron, McHugh and Gummow JJ that, although the abrogation of the privilege in this case was indirect, it was nevertheless an abrogation (at [33]); see also his Honour’s earlier decision in Luppino v Fisher [2018] FCA 2016. The Commissioner did not challenge the conclusion that s 3LA abrogated the privilege against self-incrimination. He did challenge the conclusion that the principle referred to had any role, or any significant role, in the construction of s 3LA.
Ground 2 of the Appeal
In Ground 2 of the appeal, the Commissioner contends that the primary judge erred in concluding that the Section 3LA Order made in this case was not authorised by s 3LA. In particular, he contends that the primary judge erred in concluding that s 3LA(4) did not contain an exhaustive statement of the matters which must be included in an order made under s 3LA. Further, he contends that his Honour erred in concluding that the Section 3LA Order was invalid because it did not state the information or assistance that Mr Luppino was required to provide.
The Primary Judge’s Reasons
The primary judge began his analysis of this ground by summarising the respective submissions of the parties. He noted that Mr Luppino advanced nine submissions. As will be clear from what is set out below, he accepted a number of these submissions. The submissions which he did not expressly accept or reject were repeated on the appeal and are addressed below.
The primary judge held that s 3LA(4) did not provide exhaustively for the matters which were required to be stated in an order made under s 3LA because there were at least two matters which must be in an order and yet they are not referred to in the subs (4). These two matters are the identity of the person to whom the order is directed (i.e., the specified person) and “at least some particularity of the computer or data storage device in respect of which the information or assistance is to be provided” (at [121]).
The primary judge considered that the Commissioner’s argument that Mr Luppino’s construction of s 3LA should not be adopted because it may give rise to the need for multiple applications under the section as the Commissioner acquires knowledge as to the precise information and assistance required, had some force. However, the primary judge said that it was not a complete answer because the information or assistance required could be identified as information of a particular type, such as a username, password or private encryption key, or the assistance identified as a digital fingerprint, a USB cable or a device into which a data storage device could be placed in order to read. The primary judge said that using descriptions of this nature would reduce the prospect of multiple applications being necessary (at [122]).
I note at this point that the primary judge’s approach represents something of a middle position between the precise identification of the information or assistance required on the one hand, and the use of the statutory expression in s 3LA on the other. There may be grey areas in between depending on how specific the description of the type of information to be provided needs to be.
The primary judge said that operational realities, which was a matter relied on by the Commissioner in support of his construction of s 3LA, could be taken into account in the manner of the expression of the order, but such realities must be balanced against the need to give the specified person a clear indication of what is required for compliance with an order under the section (at [123]).
The primary judge said that he was “particularly persuaded” by Mr Luppino’s submission that specified persons should be informed with some clarity of what it is that may be required of them and he said that the order under s 3LA was the “obvious locus for that clarity of expression” (at [124]).
Finally, the primary judge expressed the view that the structure of s 3LA(1) is consistent with the conclusion that the chapeau describes the limits of the power to make an order, but not the content of the order itself.
It is not entirely clear what reliance the primary judge placed on the principle of construction referred to earlier. In a section of his reasons before he dealt with each ground of review before him, he set out in clear terms his approach to the construction of s 3LA. It will be helpful if I set out all that he said on that topic (at [36]–[38]):
36Both parties referred to the decision in Hart v AFP 2002 in which the Full Court discussed a number of matters of approach to the construction of statutes authorising the search and seizure. The matters to which the Full Court referred are:
•in accordance with Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, the primary object is “to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”, at [64];
•the purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them. Recognition of that purpose may yield a construction of the legislative words which is not necessarily narrowly defined. Remaining ambiguity or doubt, whether of meaning or application, will be resolved in favour of the rights and freedoms of the subject, [65];
•the search and seizure provisions of the Crimes Act are not punitive and are not to be treated as penal provisions. It is more appropriate to see them as subject to the general principles that govern statutory interference with established common law rights and freedoms, at [67];
•effect should be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences, at [68];
•when the language of the statute authorising their use offers choices between one construction requiring “fine legal judgments” in the issue and/or execution of warrants and another which is more likely to be consistent with “operational realities”, then the latter construction is generally to be preferred, at [68]; and
•there is no requirement that the Court approach the task of construction armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers. Privacy is but one of the interests to be taken into account in construing legislation authorising the exercise of such power, at [68].
37Although the plaintiff accepted that the approach stated in Hart v AFP 2002 was appropriate, he did raise two qualifications. The first is that the statutory provisions in question in this case concerned the powers of a magistrate, and not those of a police officer. This meant, the plaintiff submitted, that matters of “operational realities” need not have the same significance. Secondly, the plaintiff noted that, since 2002, a number of decisions of the High Court have indicated the importance of the principle of legality, to an extent which may not have been fully understood in 2002: Australian Crime Commission v Stoddart [2011] HCA 47, (2011) 244 CLR 554; X7 v Australian Crime Commission [2013] HCA 29, (2013) 248 CLR 92; and Lee v New South Wales Crime Commission [2013] HCA 39, (2013) 251 CLR 196; Independent Commission Against Corruption v Cunneen [2015] HCA 14, (2015) 256 CLR 1.
38Counsel for the Commissioner emphasised that the principle of legality is a rule of construction, and not of re‑writing: Lee v NSW Crime Commission at [313].
The principle of construction which is described in modern authorities is a manifestation of the principle of legality as referred to in the second and third dot points in the above summary.

The ninth submission made by Mr Luppino to the primary judge was that the principle of legality meant that a construction of s 3LA which would result in orders which are less restrictive of common law rights was to be preferred unless it is plain that a broader construction was intended. His Honour did not articulate a conclusion in those express terms.
The Submissions made by the Parties
It is uncontroversial that the construction of a statutory provision involves a consideration of the text of the provision, the context in which it appears and the purpose of the provision or the policy which lies behind it, in particular, the mischief (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan JJ and Kiefel J (as her Honour then was); North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 (North Australian Aboriginal Justice Agency) at [11] per French CJ, Kiefel and Bell JJ). The Commissioner made his submissions by reference to these considerations.
With respect to the text of the provision, the Commissioner submits that s 3LA identifies the matters which must be specified in the order, being the following: (1) the person to whom the order is directed (subs (1)); (2) the period within which the person must provide the information or assistance (subs(4)(a)); (3) the place at which the person must provide the information or assistance (subs (4)(b)); and (4) any conditions imposed by the magistrate (subs (4)(c)). There is no requirement in s 3LA to identify in the order made, the particular information or assistance to be provided.
With respect to the purpose of the provision, the Commissioner submits that the implication of a requirement that the order specify the particular information or assistance (or both) to be provided would lead to the potentially very inconvenient result that multiple applications would have to be made. He submits that that cannot have been part of the statutory purpose. The Commissioner submits that there might be multiple layers of data protection such that the primary judge’s approach would mean that there might be a need for separate applications (as the Commissioner put it) “layer by layer”.
The Commissioner submits that the extrinsic material and, in particular, the Revised Explanatory Memorandum to the Cybercrime Bill 2001, supports his construction of s 3LA. The passage in the Revised Explanatory Memorandum, which is said to be relevant, is the clear statement in the second paragraph in the passage set out above (at [18]) that the order can require the specified person to provide, to the extent reasonably practicable, such information or assistance as is necessary to access data on a computer.
The passage in the Second Reading Speech for the Bill, which is said to be relevant and to similar effect, is the last paragraph in the passage set out above (at [19]).
With respect to the principle of construction that, absent clear words, the legislature is taken not to have intended to abrogate or curtail fundamental common law rights or freedoms, the Commissioner submitted that: (1) there is no or little room for the operation of this principle in circumstances where the legislature, by the enactment of s 3LA, clearly intended to abrogate the privilege against self-incrimination; or (2) following the primary judge’s approach by reference to Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 (Hart), the principle is only relevant where there is “remaining ambiguity” and there is none in this case.
Mr Luppino relies on the reasoning of the primary judge. In addition, as I have said, he repeats some of the submissions he made to the primary judge. He places strong reliance on the principle of legality and its manifestation in the principle of statutory construction referred to earlier. He referred to recent authority of the High Court emphasising the fundamental and important nature of the right to silence and privilege against self-incrimination (Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 at [32]–[34]; Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325 (Strickland) at [101] per Kiefel CJ, Bell and Nettle JJ). He submitted that where it is claimed a statutory provision restricts the common law right to silence, that provision must be “perspicuously expressed and strictly construed” (Strickland at [101]).
Analysis
I begin with the argument concerning the principle of construction that, absent clear words, the legislature is taken not to have intended to abrogate or curtail a fundamental common law right or freedom.
With respect, Gleeson CJ made a clear statement of the relevant principle in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [19]–[20]:
19Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that “[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”.
20A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.
(Citations omitted.)
Gleeson CJ provided a further explanation of how the principle of construction worked in Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309 where he said (at [19]–[21]):
19Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation. The generality of that assertion of principle requires some qualification. It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. It is also true that there is a presumption, relevant for example to the construction of privative clauses, that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied. However, as McHugh J pointed out in Gifford v Strang Patrick Stevedoring Pty Ltd modern legislatures regularly enact laws that take away or modify common law rights. The assistance to be gained from a presumption will vary with the context in which it is applied. For example, in George Wimpey & Co Ltd v British Overseas Airways Corporation, Lord Reid said that in a case where the language of a statute is capable of applying to a situation that was unforeseen, and the arguments are fairly evenly balanced, “it is … right to hold that … that interpretation should be chosen which involves the least alteration of the existing law”. That was a highly qualified statement and, if it reflects a presumption, then the presumption is weak and operates only in limited circumstances.
20 In Coco v The Queen, Mason CJ, Brennan, Gaudron and McHugh JJ said:
“The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.” (Footnote omitted.)
21The joint judgment in Coco went on to identify as the rationale for the presumption against modification or abrogation of fundamental rights an assumption that it is highly improbable that Parliament would “overthrow fundamental principles, infringe rights, or depart from the general system of law” without expressing its intention with “irresistible clearness”. In R v Home Secretary; Ex parte Pierson, Lord Steyn described the presumption as an aspect of the principle of legality which governs the relations between Parliament, the executive and the courts. The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.
(Citations omitted and emphasis added.)
The recent decision of the Full Court of this Court in Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166 is also relevant. In that case, the Court said (at [22]–[24]):
22By authorising an overriding of such private interests in certain circumstances, search warrant legislation gives primacy to the public interest in the administration of criminal justice while also recognising the need for appropriate but limited protection of individual rights through the imposition of statutory conditions for the issue of a valid warrant. Strict compliance with those conditions is therefore required in order to give effect to that statutory purpose: George v Rocket at 110-111. However, in construing the statutory requirements for the issue of a search warrant, the Court should be careful to give effect to the legislation by its terms, and not approach its task armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers: Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; 124 FCR 384 at [68]. Construction of statutes that authorise the search of premises and the seizure of things from them must begin with “the ordinary meaning of the words considered according to their context and the legislative purpose”: Hart at [64].
23Importantly, the search and seizure provisions of the Crimes Act are not punitive and are therefore not to be treated as penal provisions for the purposes of statutory construction: Hart at [67]. Rather, it is appropriate to see those provisions as subject to the general principle that, in the absence of unmistakeable and unambiguous language, it is to be presumed that the legislature has not intended to interfere with basic rights, freedoms and immunities: see, e.g., Hart at [67] and the cases there cited. …
24For modern search warrant legislation, the same strict compliance with the relevant statutory requirements may generally be seen to apply, but no further. Additional rights or requirements going beyond those spelt out are not easily to be inferred. …
(See Hart at [67]–[68].)
The Commissioner’s point that the principle of construction is of limited assistance where the clear purpose of the legislation is (as here) the abrogation of a fundamental common law right or freedom finds support in the remarks of Gageler and Keane JJ in Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 at [313]–[314] as follows:
… The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that "[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve”.
(Citation omitted; see also CXXXVIII v Honourable Justice Richard Conway White [2020] FCAFC 75; (2020) 274 FCR 170 (CXXXVIII) at [33]–[34].)
In North Australian Aboriginal Justice Agency, French CJ, Kiefel and Bell JJ expressed a different view. Their Honours said the following (at [11]):
Before considering the constitutional validity of any statute, it is necessary to consider its construction and operation. Its construction will give effect to the ordinary meaning of its text in the wider statutory context and with reference to the purpose of the provision. Further, the principle of legality favours a construction, if one be available, which avoids or minimises the statute’s encroachment upon fundamental principles, rights and freedoms at common law. That presumption, which is well established, has been called “a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted”. It is a presumption whose longstanding rationale is that it is highly improbable that parliament would “overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”. Its object was set out in the joint judgment of Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen:
“curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.”
It is a principle of construction which is not to be put to one side as of “little assistance” where the purpose of the relevant statute involves an interference with the liberty of the subject. It is properly applied in such a case to the choice of that construction, if one be reasonably open, which involves the least interference with that liberty. As TRS Allan has written:
“Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction.”
(Citations omitted; contrast Gageler J at [80–[81]; see also Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1 at [54] per French CJ, Hayne, Kiefel and Nettle JJ; but see Gageler J at [86]–[88].)
The Commissioner submits that on any view of the construction issue, s 3LA authorises an order requiring a specified person to provide information or assistance that is reasonable and necessary to allow a constable to do one or more of the acts in paragraphs 3LA(1)(a), (b) or (c) and that the principle of legality is of “little assistance in determining the construction of whether the information or assistance which must be given is described in the order as particular or generic acts of information or assistance falling within the rubric of the statutory description or more generally by the use of the statutory description itself”.
The prevailing view in the High Court, if I may put it that way, appears to be that of French CJ, Kiefel and Bell JJ in North Australian Aboriginal Justice Agency. However, even if that is not clear, it does not seem to me to be necessary to determine what differences there are between the two views and to determine which view should be followed. On any view, the principle of construction is of weak application in this case for two reasons.
First, there are not two arguable constructions of the statutory provision going directly to the scope of the power to require a person to provide information or assistance. The scope of the power is clear. It is such information or assistance as is reasonable and necessary to enable a constable to carry out one or more of the matters in s 3LA(1)(a), (b) or (c). The issue of disputed construction goes to a condition on the exercise of the power. I realise there is not always a clear distinction between the scope of a power and the conditions of its exercise, but nevertheless, I think it is relevant to the extent to which the principle of construction is given weight that the issue of disputed construction relates to a condition on the exercise of the power, not directly to the scope of the power.
Secondly, and probably in any event, the Commissioner did not seem to push his argument beyond the principles summarised by the primary judge and, in particular, the way in which the matter is put in the second dot point of “[r]emaining ambiguity or doubt” (see [38] above). The Commissioner’s point is that there is no remaining doubt or ambiguity such that the principle of construction has a role to play. On the other side, although counsel for Mr Luppino referred to the well-established rule requiring strict compliance in search and seizure provisions (George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110–111; Smethurst v Commissioner of Police [2020] HCA 14; (2020) 376 ALR 575 (Smethurst) at [25] per Kiefel CJ, Bell and Keane JJ), he did not, as I understood him, seek to challenge the primary judge’s summary of the relevant principles.
I turn now to consider the text, context and purpose of s 3LA. This is not a case where there is a particular piece of text which is capable of alternative constructions and the Court must determine which construction is the correct one. Mr Luppino’s submission is that a requirement that the information or assistance to be provided be identified in the order is inherent in s 3LA. The Commissioner’s contention is that Mr Luppino asks the Court to read into the section a condition which must be complied with, rather like the conditions set out in s 3LA(4). On either approach, matters of context, rather than a specific piece of text in the section, are of first importance.

I should make clear the exact nature of the dispute as to the construction of s 3LA. In doing so, I will use the shorthand “access data on a computer or data storage device” to describe the matters identified in s 3LA(1) (a), (b) and (c).
Both sides agree that the limit of the power in s 3LA is the provision of information or assistance that is reasonable or necessary to allow a constable to access data on a computer or data storage device. The Commissioner submits that the obligation as set out in the order can be expressed in terms of the statutory words, whereas Mr Luppino submits that the information or assistance must be described, although he accepts that the information or assistance may be described generically, that is to say, the type of information or assistance required. Whether Mr Luppino accepts the qualification or not, it is plainly correct. As previously stated, an order under s 3LA may operate both before and after a warrant issued under s 3E of the Crimes Act has been executed. It is correct to say that in the case of an application for an order under s 3LA before a warrant under s 3E has been executed, a constable will often be unaware of the nature of any data protection measures in computers or data protection devices found on the execution of such a warrant. Even in the case of an order under s 3LA obtained after the execution of a warrant issued under s 3E, a generic description must be permissible in order to avoid multiple applications as layers of data protection measures are revealed. As I understand it, this was the view of the primary judge and, in my opinion, it reflects the operational realities which, according to Hart, may be taken into account. The Full Court of this Court in Hart, referred to Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 in which case Mason J held that practical considerations suggested that it was unlikely Parliament intended to import a limitation of the nature advanced in that case into the authority given by a warrant granted under s 10(b) of the Crimes Act. His Honour said (at 83):
In approaching the scope of the authority given by the warrant we must keep practical considerations steadily in mind. It is simply impossible for a police officer executing a warrant to make an instant judgment on the admissibility, probative value or privileged status of the documents which he may encounter in his search. Generally speaking, it is in the course of the subsequent investigation following seizure of the documents that informed consideration can be given to the documents and an assessment made of their worth or significance in the respects already mentioned. … In the case of production on discovery and under subpoena duces tecum there is a court or tribunal already exercising jurisdiction in the matter which could determine questions of relevance and privilege. It is otherwise in the case of search and seizure under a warrant. This indicates that it was unlikely that Parliament intended to import some limitation of the kind suggested into the authority given by a warrant granted under s. 10(b).
Practical considerations or operational realities may also be relevant where the issue is whether the search was carried out properly or was carried out reasonably (see Dunesky & Anor v Commonwealth of Australia & Ors [1996] 89 A Crim R 372; (1996) 33 ATR 491).
The generic description which may be adopted cannot be so general that it is effectively indistinguishable from using the statutory words. By reason of s 3LA(2), the order which the magistrate may grant is the order which has been the subject of the application under s 3LA(1).
It is true, as Mr Luppino submits, that the phrase “information or assistance that is reasonable and necessary” identifies the limits of the power of the magistrate to grant an order, but the fact that it performs this function does not of itself mean that the statutory words cannot be used to describe the information or assistance to be provided in a particular case.
The application for an order is made to a magistrate and the magistrate must be satisfied of certain matters before making an order under the section. At some point, on either of the competing constructions, a judicial officer may need to decide whether the specified person is being asked, or has been asked, to do something which falls within the statutory description. The alternatives appear to be that the magistrate decides the issue before the order is made or a Court is asked to decide the issue on an application for enforcement of the order or the hearing of a prosecution for an offence under s 3LA(5). Both are possible interpretations and, as the Commissioner pointed out, statutory obligations to act reasonably in matters otherwise treated as criminal conduct, are not unknown. However, Mr Luppino’s construction operates in a logical way producing greater certainty and is a process that it might reasonably be presumed the legislature would have favoured.
Section 3LA(2) deals with the matters of which the magistrate must be satisfied before making an order. The primary judge referred to the matter in paragraph (2)(a) as the evidential requirement, the matter in paragraph 2(b) as the status requirement, and the matter in paragraph (2)(c) as the knowledge requirement. The terms of subs (2) provide some support for the construction advanced by Mr Luppino. There is a link between the knowledge requirement and the formulation of the information or assistance to be provided, although I accept that in a particular case the fact that a person has used a computer or data storage device may be sufficient to satisfy the knowledge requirement and yet say nothing in particular about the information or assistance which might be the subject of an order.
Section 3LA(4) deals with the situation where an order is obtained after seizure or removal of the computer or data storage device. On any view, it does not contain all of the requirements concerning the matters to be stated in an order. An order must self-evidently identify the specified person and, leaving aside precisely how the computer or data storage device is described (as to which see Ground 4), the computer or data storage device not on warrant premises must, in the ordinary case, be identified in some way.
Some of the requirements in s 3LA(4) seem more consistent with the construction advanced by Mr Luppino than that advanced by the Commissioner. I put it in this way because the point is not a decisive one. It seems to me that the period and place requirements suggest the specified person will be aware from the order itself by what time and where the information or assistance is to be provided.
Section 3LA(5) is not inconsistent with either construction advanced. It perhaps favours the construction advanced by Mr Luppino as part of a point made in relation to s 3LA(1) (at [64]). It is perhaps more consistent with the terms of the subsection that the failure to comply it is referring to is a failure to comply with the order itself and not the order supplemented, in practical terms, by the particular requirements and directions of a constable given outside the order.
I do not consider that the extrinsic material which the Commissioner relied upon supports his construction (see [18]–[19] above). In my opinion, the use of the statutory words does not mean anything in terms of this particular argument. The statements are statements of a general description of the power and are not directed to the content of orders made under s 3LA.
In conclusion, in my opinion, on the proper construction of s 3LA, an order made under the section must describe the information or assistance to be provided, at least by reference to the type of information or assistance to be provided. It is not sufficient to describe the information or assistance by reference to the statutory words in s 3LA(1).
The Commissioner’s alternative submission is based on the assumption that his principal submission of no breach or contravention fails. In other words, the assumption for the purposes of the alternative submission is that s 3LA requires the order to specify the information or assistance to be provided and it is not sufficient to use in the order the statutory words in s 3LA(1). The alternative submission advanced by the Commissioner is that even if this is the case, the failure to comply with s 3LA in this respect did not result in invalidity.
The starting point for an analysis of the circumstances in which the breach or contravention of a statutory provision results in invalidity is the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky). The key passage in the reasons of McHugh, Kirby, Gummow and Hayne JJ is as follows (at [92] and [93]):
92Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said “a clause is directory where the provisions contain mere matter of direction and nothing more”. In R v Loxdale, Lord Mansfield CJ said “[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory”. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been “substantial compliance” with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: “substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not.”
93In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the “elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.
(Citations omitted.)
Their Honours also made the point that there is no decisive rule that can be applied and that there is not even a ranking of relevant factors or categories to give guidance on the issue (at [91]).
Their Honours identified four matters as being relevant to the issue of whether the act done in breach of the provision led to invalidity. Those matters were as follows: (1) the relevant statutory obligation under consideration regulated the exercise of a power already conferred rather than operating as an essential preliminary to the exercise of functions; (2) some of the obligations imposed by the section breached involved matters which were not of a rule like quality which could be easily identified and applied; (3) the relevant statutory provision was such that the likelihood of breach was not fanciful; and (4) the extent of inconvenience to members of the public if the act is held to be invalid is, and always has been, an important consideration.
In the case cited in Project Blue Sky, that is, Tasker v Fullwood [1978] 1 NSWLR 20, the Court of Appeal of New South Wales said (at 23–24):
From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statue. Little, if any, assistance, will be derived from the terms of other statues or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty. Ltd. case. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v. Beaumont. (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v. The Commonwealth. (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty. Ltd. case. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v. The Commonwealth.
(Citations omitted.)
In this case, the Court of Appeal in deciding that a breach of the relevant statutory provision did not result in invalidity considered that four matters were relevant. They were as follows: (1) the relevant obligation was not expressed to be an essential precondition to the Court’s jurisdiction; (2) the statute did not contain a provision to the effect that, in the absence of compliance, the application should not be granted; (3) the particular obligation did not in that case admit of substantial compliance and there was either strict compliance or non-compliance; and (4) the Court posed the relevant question in terms of whether the requirement in issue is “so cardinal to the object of the statute as to disclose an intention that its complete non‑observance should invalidate any order made by the Court?” (at 24).
An example of the application of the correct approach is Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 (SZIZO). In that case, six applicants who had had their applications for visas refused applied for review of the decisions by the Refugee Review Tribunal. All of them appeared before the Tribunal. Evidence was given and submissions made. The Tribunal affirmed the decisions. The applicants submitted that the Tribunal had failed to give notice of the hearing to their authorised recipient and that the Tribunal’s decision was invalid. The High Court rejected the submission because the provisions were directed to ensuring natural justice was accorded and there had been no denial of natural justice in the circumstances (at [35]–[36]). The plurality said that invalidity did not result from the breach because, despite the breach, the purpose of the statutory scheme of which the provision formed a part had been achieved.
The Commissioner submits that it was and is perfectly clear to everyone, including Mr Luppino, that one piece of information the Commissioner sought from Mr Luppino was the Knox password.
Mr Luppino submits that the failure to comply in this case must result in invalidity because the order made was one that simply could not be made and further, the fact that the specified person might infer that what was being sought was the provision of a PIN was irrelevant. He referred to Smethurst in which Kiefel CJ, Bell and Keane JJ said (at [29]):
It follows logically from the underlying rationale of the condition that the offence be stated that the test of sufficient particularity is an objective one, which has regard to the content of the warrant. It can be no answer to a challenge to the validity of a warrant on the ground that it fails clearly to state the nature of the offence in question to say that the persons whose premises are to be searched have some ancillary information as to the offence to which the warrant is intended to relate.
(Citation omitted.)
Mr Luppino also points to the circumstance that, as he put it, deficiency in this case relates to the very nature of the Section 3LA Order and not a procedural step in the making of the order.
In my opinion, a failure to identify, at least at a general or generic level, the type of information or assistance to be provided renders an order purportedly made under s 3LA invalid. I say that for the following reasons. First, if, as I have held, there must be a specification in the sense I have described of the information or assistance to be provided in the Section 3LA Order, then it follows that the magistrate must have turned his or her mind to the issue. The fact that the magistrate may not have done so in this case bears on the very exercise of the power. Secondly, and relatedly, the section is about the provision of information or assistance in the sense that that is the central purpose of the section and the central purpose of an order made under the section. Thirdly, the consequences for the specified person of non‑compliance by him or her are very significant in that they commit an offence punishable by imprisonment. Finally, this is a case where there was a complete failure to comply with the statutory requirement, even accepting (as I do) that it was a requirement that went no further than describing the information or assistance in general or generic terms.
In the circumstances, I reject Ground 2 of the appeal and that has the consequence that the appeal against the primary judge’s order must be rejected.
Ground 4 of the Appeal
Ground 4 of the appeal is to the effect that the primary judge erred in concluding that the Section 3LA Order did not comply with s 3LA of the Crimes Act because it did not specify the particular computer or data storage device to which the order referred having regard to the following matters: (1) that s 3LA(1) does not require that degree of detail and is limited to requiring a person “to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more” of the things with a computer or data storage device listed in paragraphs (a), (b) or (c) of the subsection; (2) the primacy to be given to operational realities in the construction of s 3LA of the Crimes Act; (3) that the evidence before the primary judge disclosed that the relevant device had been clearly identified to the magistrate before the making of the Section 3LA Order and that the magistrate was able to identify the “gold coloured Samsung mobile phone with the Knox Application” as the relevant computer or data storage device; and (4) the evidence before the primary judge disclosed that Mr Luppino had no doubt that the Section 3LA Order applied to the “gold coloured Samsung mobile phone with the Knox Application”.
The Primary Judge’s Reasons

Those comments are equally apt to the issue of this order.
The primary judge summarised the principles in Hart: at [36]. The primary judge also recorded at [37] that although the respondent accepted that the approach stated in Hart (summarised in the extract from Caratti in [217] above) was appropriate, it was with two qualifications. First, that the statutory provisions in question in this case concerned the powers of a Magistrate, and not a police officer and therefore, matters of “operational realities” need not have the same significance. Second, that since 2002, a number of decisions of the High Court have indicated the importance of the principle of legality, to an extent which may not have been fully understood in 2002. It is unclear from the reasons what the primary judge made of those submissions. That said, neither proposition affects the validity of the observations made in Hart, referred to above. The principles as to the construction of search warrant provisions have been accepted and applied since 2002. Nothing in Smethurst casts doubt on Hart or the relevant aspects of Caratti. Nor does there appear to be a proper basis to the suggestion that the involvement of a Magistrate in issuing a warrant or making an order reduces the significance of operational realties. Regardless of who issues the warrant or makes an order it must be executed by officers in the context of an ongoing investigation, with all the operational requirements and constraints that brings.
While discussing the relevant principles of construction we note also that primary judge observed that an order pursuant to s 3LA has some similarity to a mandatory injunction and, in particular, the principle that injunctions will be expressed so as to ensure, so far as practicable, that their content is certain and that they provide clearly for what parties affected by them are bound to do or refrain from doing: at [35]. Given that the task is one of construction of the statutory provision, in the context of Pt 1AA of the Crimes Act, it is difficult to see the relevance of such an observation. It cannot provide a basis for imposing a condition or requirement on the issue of an order pursuant to s 3LA which is not supported by the text, context and purpose of the provision.
All that said, we are unable to accept that the respondent’s construction of s 3LA is reasonably open in the application of ordinary principles of statutory construction. There is no constructional choice which might be said to give rise to the application of principle of legality: NAAJA v NT at [11].
Before addressing the arguments advanced it is appropriate to make some general observations about the provision, which is recited in the reasons of Besanko J at [13], and the context in which it appears.
Section 3LA is in Pt 1AA of the Crimes Act, which is the statutory scheme in respect to search, information gathering and arrest. It appears in Div 2, which addresses search warrants. Div 2 commences with s 3E, which provides the circumstances in which a search warrant of premises can be issued, noting that the warrant can authorise an ordinary or frisk search of a person who is at, or near, the premises when the warrant is executed. Thereafter the Crimes Act contains a series of provisions which relate to and assist with the execution of that warrant. For example, the activities authorised by each kind of warrant: s 3F, the assistance that can be used to execute the warrant: s 3G, the equipment that can be brought onto the premises to assist in executing the warrant: s 3K, authorisation to operate electronic equipment to access and copy data located during the execution of the warrant: s 3L, and the authority to use electronic equipment to access and copy data from items moved to another place for examination or processing: s 3LAA. That list is not complete, and although those descriptions are necessarily general, for present purposes they sufficiently reflect the nature of the provisions in Div 2. This is the context in which s 3LA sits.
It is appropriate to refer to two of those provisions in more detail. Section 3F is directed to “[t]he things that are authorised by a search warrant”, and the version then in force (and now) includes “to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises”: s 3F(1)(c). Section 3L, which is directed to “[u]se of electronic equipment at premises”, at the applicable time relevantly included:
3L Use of electronic equipment at premises
(1) The executing officer of a warrant in relation to premises, or a constable assisting, may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes evidential material.
Note: A constable can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 3LA.
(1A) If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may:
(a) copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises; or
(b) if the occupier of the premises agrees in writing — copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device at the premises;
and take the device from the premises.
Section 3LA is directed to persons with knowledge of a computer or data storage device or knowledge of measures to protect data held in, or accessible from, the computer or data storage device. It provides for an order from a Magistrate which requires a specified person “to provide any information or assistance that is reasonable and necessary” to allow a constable inter alia, to access data from a computer or data storage device, which is on warrant premises, or moved for an examination or seized pursuant to Div 2 of the Crimes Act: s 3LA(1)(a) and the copying of material and converting it in to documentary or another form intelligible to the constable: s 3LA(1)(b) and (c). The provision provides preconditions, the satisfaction by the Magistrate of which are necessary to issue an order: s 3LA(2). It also addresses what must be included in an order where the computer or data storage device has been removed from the premises: s 3LA(4). The provision makes it an offence not to comply with an order: s 3LA(5).
The evident purpose of s 3LA, considered in the context of the statutory scheme, is to facilitate the execution of s 3E search warrants by providing those executing them with a means of obtaining the assistance which is reasonable and necessary in order that a constable may access, copy and/or convert into an intelligible form data held in, or accessible from, a computer or data storage device. As the primary judge observed it provides police with a means of overcoming impediments to accessing such material created by the use of devices such as password protection and encryption: at [18]. It also provides assistance in enabling the relevant material to be copied or converted into documentary form. An order under s 3LA complements or is an adjunct to a s 3E warrant, and interacts with other provisions in Div 2 of Pt 1AA of the Crimes Act.
Against that contextual background a number of further observations can be made.
First, as noted above, an order relates to information and assistance not only to access data from a computer or data storage device: s 3LA(1)(a) but also copying material and converting it in to documentary or another form intelligible to the constable: s 3LA(1)(b) and (c). The necessity for copying and conversion of information, and what assistance might be needed would be dependent, at least for the conversion, on the form of the material once accessed. Although the submissions focussed on accessing the information, the construction of the s 3LA order must accommodate all aspects of s 3LA(1).
Second, an order pursuant to s 3LA can be sought and obtained before or after the execution of s 3E warrant. The construction of the provision must also accommodate its operation in both scenarios. Where the s 3LA order is sought before the execution of the s 3E warrant, the constable may have some general information or knowledge about the types of computers or data storage devices on the premises. It is, however, unlikely that the constable would have any, or any detailed or specific, information or knowledge of the types of software or applications on the computers or data storage devices which might prevent access to the data, or access to the data in a form which is able to be copied or is intelligible. It is unlikely until the data is accessed for the constable to have any information or knowledge as to whether it requires copying, or is unintelligible. Where the s 3LA order is sought after a warrant has been executed, the constable is likely to have more information and knowledge about the computers or data storage devices and may even, as a result of initial examinations of the computer or data storage device, have some information or knowledge about the protective software or applications on them. Even then, however, there may be additional layers of protective software or applications about which the constable remains unaware.
The significance of being able to obtain a s 3LA order before the execution of a s 3E warrant is that it enables a computer or data storage device to be examined at the premises, and a determination made whether it contains evidential material, and if so, whether that material can be copied or whether the computer or data storage device itself is to be seized. This limits the occasion to seize devices for examination. A construction which accommodates the proper operation of this aspect of the s 3LA order promotes and is consistent with the evident purpose of the scheme where the seizure of the electronic device is seen as the option of last resort: see for example s 3L(3) and s 3K(2)(a).
Third, the statutory preconditions for the issue of an order are identified in s 3LA(2). The matters on which the Magistrate must be satisfied are that there are reasonable grounds for suspecting evidential material is held in, or accessible from, the computer or data storage device: s 3LA(2)(a), and that the specified person (the breadth of whom is identified), has relevant knowledge of the computer or data storage device, or of the measures applied to access data: s 3LA(2)(b) and (c).
Given the respondent’s construction of s 3LA it is appropriate to observe the limits of those preconditions. There is no precondition that the Magistrate be satisfied as to what information or assistance in the particular case will be reasonable and necessary to undertake the tasks in s 3LA(1). The Magistrate is also not required to identify the evidential material on which they base their satisfaction. The s 3LA order is not directed to the particular evidential material, rather it is directed to allowing access to (or copying or converting) data on a computer or data storage device. As noted above, this order is an adjunct to the search warrant in s 3E, and related provisions. That warrant authorises the search and identifies the material that can be seized pursuant to it. The s 3LA order provides information and assistance to enable the constable to execute the s 3E warrant by accessing the computer or data storage device. The constable is then entitled to search the computer or data storage device to determine if there is evidential material within the terms of the warrant. The requirements of the s 3LA order as to evidential material and the content of any order are to be contrasted with those in s 3E and the content of that warrant. It follows that the premise of the respondent’s submission, that the Magistrate must be satisfied of the particular evidentiary material and then be satisfied of what information and assistance is reasonable and necessary to access that material, cannot be accepted.
Fourth, the respondent’s submission that the requirement to specify the information and assistance that is reasonable and necessary comes from the condition in s 3LA(2)(c) that the specified person has relevant knowledge of the computer or data storage device, or measures applied to protect data held in, or accessible from, the computer or data storage device, cannot be accepted. The level of detail contended for by the respondent is not borne out by the text of the provision. The provision does not state that such satisfaction is required. Moreover, a Magistrate can plainly be satisfied that a person has such knowledge without the Magistrate knowing what those measures are or the details thereof.
Fifth, significant to the respondent’s submission, and the primary judge’s reasoning is the conclusion the s 3LA(4) is not exhaustive. It is necessary to recall that this provision only applies when the computer or data storage device is not on the warrant premises. In that context it provides that an order must specify the period in which the person must provide the information or assistance, the place at which the person must do so, and any conditions determined by the Magistrate to which the requirement on the person to provide the information or assistance is subject. These requirements are directed to the logistics of how, when and where the information and assistance is to be provided, matters which have application in relation to the circumstance of the computer or data storage device being off the premises. In that context, it may be accepted that s 3LA(4) is not exhaustive. For example, obviously the specified person must also be named in an order. That said, there is nothing in that provision which could provide a basis for implying a requirement to identify the assistance and information required to be provided. As explained above, that is to impose a statutory precondition to the issue of an order which is not provided for in the provision. Moreover, s 3LA(4) only has limited application, as it does not apply when the computer or data storage device is on the warrant premises.
Sixth, that it is an offence to fail to comply with an order does not provide a basis for reading in the requirement contended for by the respondent. Such a provision is not unusual in schemes where the legislature has struck the balance between the competing interests of individual rights and the public interest in enforcing compliance with provisions relating to the investigation of crime: see for example, CXXXVIII at [33]-[34]. If the specified person fails to comply with the s 3LA order it will be for the court in which the specified person is prosecuted to determine whether, as a matter of fact, the person has failed to provide the assistance which was reasonable and necessary to access data. In those circumstances, that court will determine, as a question of fact, whether the assistance requested was reasonable and necessary. It is not unusual that the question of criminal liability turns on the issue of reasonableness: see for example, ss 3UC(3), 3ZL(3), 3ZQM(6) of the Crimes Act. If the person refuses to comply with an order it will be for the Court to determine if an offence has been committed.
As is apparent from the above discussion there is no requirement in the text of the provision that the Magistrate be satisfied of, and specify the particular information or assistance that the Magistrate considers reasonable and necessary. Nor, given a proper reading of the text, in context and given its purpose, is such a precondition to be implied. As stated by the Full Court in Caratti, having referred to “[a]dditional rights or requirements going beyond those spelt out are not easily to be inferred”: Caratti at [24].
Determining what information or assistance is reasonable and necessary is informed by all the text in s 3LA(1) to which it is directed, in the context of the warrant which will be, is being, or has been executed. Contrary to the respondent’s contention, there is nothing unusual about the constable, while executing the warrant, being the person who must, in the first instance, determine what information or assistance is reasonable and necessary. Legislative regimes, including the Crimes Act, not infrequently empower police officers to take certain actions that they consider to be reasonable or necessary in pursuance of, or subsequent to, the making of an administrative order: see for example ss 3F(1)(d)-(f) and (2)(c)-(d), 3G, 3ZC(1), 3ZH(2)(b), 3ZJ(3)(b)-(c) and (4) of the Crimes Act. It is a feature of other provisions in this legislative scheme in relation to the execution of a s 3E warrant. This reflects the operational realities under which the investigation is occurring and the warrant is being executed.
As the Commissioner correctly contended, where a s 3LA order is obtained before a warrant is executed, a constable or Magistrate is unlikely to be able to be satisfied of the layers of password protection or encryption or other protections of the devices that may be found so as to be able to anticipate the assistance required to access the computer or data storage device, even at the level of generality suggested by the primary judge at [122] recited above at [207]. This must be even more so as to whether there will be a need to have information and assistance to copy or convert material into an intelligible form. The imposition of the requirement imposed by the primary judge also fails to reflect the operational realities, referred to in Caratti and Hart referred to above at [217].
With respect, we consider that the means suggested by the primary judge to overcome that difficulty by drafting an order in terms of generality do not assist. The examples given, which were given as alternatives, are at a level of generality so as to not meaningfully add to the words of the text of s 3LA. Rather, they reflect the breadth of available options that might be anticipated as being necessary to access the computer or data storage device. They are matters readily understood as typically being necessary to access such devices. That those types of information and assistance may be required is self-evident.
The very specification of such matters however, would result in the circumstance where if something not anticipated as being required (perhaps because of the nature of encryption software), a new order would need to be obtained. There is no basis for reading such a requirement into the legislative scheme.
The respondent’s submission as to the need for more specificity is based on the premise that the specified person needs to be in a position to assess whether the request is reasonable and necessary. However, underpinning that submission is that the assessment is whether the access to the application on the device is reasonable and necessary. For example, it was submitted that “[i]f Mr Luppino is asked by the constable to provide the PIN or password for the banking app, Mr Luppino has to make an assessment of whether that’s reasonable and necessary to require him to do that…”. As explained above at [228]-[236], that misunderstands the nature of a s 3LA order. The s 3E warrant authorises the search of the computer or data storage device to determine if there is evidential material on the device. If an order is made under s 3LA the Magistrate has been satisfied that there are reasonable grounds for suspecting that there is evidential material on the device: s 3LA(2)(a). It is then for the constable to determine what assistance is reasonable and necessary to search the computer or data storage device. Consideration of whether it is reasonable and necessary is directed to the means by which data on the computer or data storage device may be accessed, copied or converted into an intelligible form, not whether, in the view of the specified person, the constable should be entitled to access the data. To be clear, it is the information and assistance that is requested which must be reasonable and necessary to access, copy or convert the data. The relevant issue is not whether the access to, or the copying or converting of, the data was reasonable and necessary.

The text, considered in its context and given its purpose does not support the construction adopted by the primary judge. The Commissioner has established that the primary judge erred in this regard. It follows that the Commissioner has established that the primary judge erred in concluding the Order was invalid because it did not identify the particular information or assistance required to be provided by the respondent.
It follows from the reasons above that Ground 2 is established and the appeal must be allowed.
Ground 4: Identifying the computer or data storage device
The submissions advanced are summarised by Besanko J, and it is unnecessary to repeat them.
As explained above, an order under s 3LA complements or is an adjunct to a s 3E warrant, and interacts with other powers in Div 2 of Pt 1AA of the Crimes Act. Section 3E(1) permits an issuing officer to issue a search warrant if satisfied of the existence of “reasonable grounds for suspecting” that evidential material is, or will be, located at particular premises. A search warrant may be issued in circumstances where it is not known what will be found. In that context it is s 3L, which is recited at [224], which envisages that electronic equipment found in the course of a search may be operated to access data. As the Commissioner correctly submitted, it would be inconsistent with that context to interpret s 3LA so as to require a significantly greater degree of foreknowledge than the provisions it facilitates.
As Besanko J concluded the use of the definite article in s 3LA(2), (3) and (4) does not support the conclusion that s 3LA contemplates an order being made in respect of a particular computer or data storage device (or particular computers or data storage devices). The Commissioner correctly contended, those references to “the computer or data storage device” are most naturally read as a reference to each device that falls within s 3LA(1)(a)(i), (ii) or (iii). This construction is consistent with the text, considered in its context and given its purpose which is explained above. In particular, s 3LA must be construed so as to encompass both the circumstance of being issued before and after the execution of the warrant. It may be accepted in that context that it may often be reasonable to suspect, in advance of a search of a premises, that desktop or laptop computers and smartphones will be found in the course of such a search, and that one or more will contain evidence falling within the scope of the warrant. It is possible in advance of the execution of the search warrant for the inferences to be drawn at a sufficient level to permit the making of a 3LA order in respect of any computer or data storage device found at the premises. Whether that is so would depend on the factual context.
As a consequence, the Magistrate in issuing a s 3LA order does not need to be satisfied of the existence of a particular computer or data storage device. There is no basis in the text of s 3LA to infer a requirement to identify a particular computer or data storage device in an order under s 3LA(4). It follows from that an order under s 3LA(4) need not identify a particular computer or data storage device. Such an order need only identify the computer or data storage device as being one that falls within s 3LA(1)(a)(i)(ii) or (iii). For example, here it was sufficient to identify the relevant computers or data storage devices in terms of s 3LA(1)(a)(iii), computers or data storage devices that had been seized pursuant to the s 3E warrant.
We agree with Besanko J, that even if the Order should have specified the particular computer that does not invalidate the Order, in circumstances where the respondent plainly knew that the information requested was in relation to the gold Samsung telephone. As explained by Besanko J in ground 5, that device is a computer or data storage device within s 3LA(1)(a)(iii).
It follows that Ground 4 is established.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Wigney and Abraham.
Associate:
Dated: 25 March 2021

[2021] FCAFC 43

25 March 2021

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Statutory Construction

Natural Justice & Procedural Fairness

Appeal from:	Luppino v Fisher (No 2) [2019] FCA 1100
File number:	SAD 163 of 2019
Judgment of:	BESANKO, WIGNEY AND ABRAHAM JJ
Date of judgment:	25 March 2021
Catchwords:	CRIMINAL LAW — appeal from an order of the primary judge that an order of a magistrate made pursuant to s 3LA of the Crimes Act 1914 (Cth) is invalid — where an order pursuant to s 3LA was made in respect of a smart phone seized during the execution of a warrant for the search of a person — whether natural justice attaches to an application under s 3LA and the appellant was entitled to a hearing before the s 3LA Order was made — statutory construction of s 3LA — whether the s 3LA Order requires details of the information or assistance to be provided by the person to whom the order is directed — whether the s 3LA Order requires information as to the place at which and the time within which the information or assistance must be provided — whether the s 3LA Order contains the required details of the particular computer or data storage device which is the subject of the order — whether smart phone is a “computer or data storage device” for the purposes of s 3LA — whether breaches of various statutory provisions result in invalidity — whether the legislature intended to abrogate or curtail the privilege against self-incrimination — appeal allowed
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6 Crimes Act 1914 (Cth) Div 2 of Pt 1AA, ss 3, 3C, 3E, 3F, 3G, 3K, 3L, 3LA, 3LAA, 3UC, 3ZC, 3ZH, 3ZJ, 3ZL, 3ZQM, 3ZQO, 23ZA, 23ZD, 23ZF Crimes Legislation Amendment Act 2011 (No 2) (Cth) Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) Criminal Code 1995 (Cth) s 400.4 Cybercrime Act 2001 (Cth)
Cases cited:	Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166 Commissioner of Police v Tanos [1958] 98 CLR 383 Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2018] FCAFC 237; (2018) 262 FCR 449 Coward v Allen (1984) 52 ALR 320 CXXXVIII v Honourable Justice Richard Conway White [2020] FCAFC 75; (2020) 274 FCR 170 Dunesky & Anor v Commonwealth of Australia & Ors [1996] 89 A Crim R 372; (1996) 33 ATR 491 Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309 Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; (2007) 231 CLR 531 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1 Lacey v Attorney-General for the State of Queensland [2011] HCA 10; (2011) 242 CLR 573 Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32; (1970) 123 CLR 327 Lansell House Pty Ltd v Federal Commissioner of Taxation [2010] FCA 329; (2010) 76 ATR 19 Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 Luppino v Fisher [2018] FCA 2016 Luppino v Fisher (No 2) [2019] FCA 1100 Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 381 ALR 601 North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50; (2015) 236 FCR 199 Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 R v Gee [2003] HCA 12; (2003) 212 CLR 230 Reid v Howard [1995] HCA 40;(1995) 184 CLR 1 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 SeaShepherd Australia Ltd v Federal Commissioner of Taxation [2013] FCAFC 68; (2013) 212 FCR 252 Smethurst v Commissioner of Police [2020] HCA 14; (2020) 376 ALR 575 Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281 State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 Tasker v Fullwood [1978] 1 NSWLR 20 Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 Pearce D, Statutory Interpretation (9th ed, LexisNexis, Butterworths, 2019)
Division:	General Division
Registry:	South Australia
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	249
Date of hearing:	21 May 2020
Counsel for the Appellant:	Mr N Williams SC with Ms S Zeleznikow
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the First Respondent:	Mr S McDonald
Solicitor for the First Respondent:	Patsouris & Associates
Counsel for the Second Respondent:	The Second Respondent entered a Submitting Notice, save as to costs

ORDER MADE BY:	BESANKO, WIGNEY AND ABRAHAM JJ
DATE OF ORDER:	25 MARCH 2021