Director of Public Prosecutions v Osman (a pseudonym)

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0119

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
ALAN OSMAN (A PSEUDONYM)[1]	Respondent

[1]To avoid the possibility of prejudice to the administration of justice, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	PRIEST, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2024
DATE OF JUDGMENT:	19 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 210
JUDGMENT APPEALED FROM:	DPP v [Osman] (Unreported, County Court of Victoria, 1 July 2024, Judge Bayles)

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CRIMINAL LAW – Interlocutory appeal – Trafficking in not less than a commercial quantity of a drug of dependence – Drugs located in police search of vehicle driven by respondent – Vehicle tracked using location information derived from mobile telephone in possession of respondent – Whether location information disclosed to police in breach of Commonwealth Law – Whether evidence from search of vehicle improperly or illegally obtained – Leave to appeal granted.

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Counsel
Applicant:		Ms E H Ruddle KC with Mr J O’Toole
Respondent:		Mr T Kassimatis KC with Mr S J Tovey
Solicitors
Applicant:	Fayman Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
BOYCE JA:

Introduction

At about 5.40 pm on 20 May 2021, police intercepted the respondent’s Nissan Navara motor vehicle in the street close to where his residence was located in Caroline Springs. Police then searched the vehicle pursuant to s 82 of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Drugs Act’), which permits a police officer to search a vehicle where the police officer ‘has reasonable grounds for suspecting that … there is a drug of dependence in respect of which an offence has been committed or is reasonably suspected to have been committed under a provision of Part V’.[2]
[2]Section 71AA, which creates the offence of trafficking in a drug of dependence in not less than a commercial quantity, is in Part V.
There is no dispute that the ‘reasonable grounds’ for the relevant suspicion arose from information about the location and movement of the respondent’s mobile telephone — connected to the Telstra network — from 6.00 am on 19 May 2021 until 4.30 pm on 20 May 2021 (‘the location information’). That location information was obtained pursuant to authorisation purportedly given by Detective Acting Inspector William Mobilio under s 180(2) of the Telecommunications (Interception and Access) Act 1979 (Cth) (‘the TIA Act’).
Upon search of the respondent’s vehicle, police located four large travel bags, each containing 20 individual vacuum-sealed plastic bags, which in turn each contained about 450 grams of cannabis. Each travel bag contained just under nine kilograms of cannabis, the total weight being 35.81 kilograms. This find was the basis of a charge of trafficking in not less than a commercial quantity of a drug of dependence, Cannabis L, in alleged breach of s 71AA(1) of the Drugs Act.
Later that evening, at about 10.40 pm, police executed a search warrant at the respondent’s nearby residence and located a glass jar containing 4.1 grams of cannabis, this forming the basis of a charge of possessing a drug of dependence, Cannabis L, in alleged breach of s 73(1) of the Drugs Act.
An indictment filed in the County Court charges the respondent with trafficking in not less than a commercial quantity (charge 1), and possession (charge 2), of a drug of dependence.
In pre-trial argument, the respondent sought the exclusion of evidence obtained from the search of the respondent’s vehicle under s 138 of the Evidence Act 2008. The respondent contended that s 180(2) of the TIA Act did not authorise Inspector Mobilio to disclose information gathered from the respondent’s mobile telephone about its location. As a result, the suspicion was based on illegally obtained information, so that the evidence obtained from the search of the vehicle was also illegally obtained.
In a ruling made on 1 July 2024 (‘the ruling’ or ‘the interlocutory decision’) the trial judge expressed the view that
the location information obtained by police pursuant to the authorisation of Inspector Mobilio was obtained in contravention of the law. The search of the [respondent’s] vehicle on 21 May 2021 was in consequence of obtaining that information. Thus the results of that search were obtained in consequence of a contravention of an Australian law.
When dealing with the first proposed ground we will set out more of the judge’s reasoning leading him to that conclusion, but in essence he found that s 276 of the Telecommunications Act 1997 (Cth) (‘TA’) was breached, in that Telstra disclosed location information to police which came into its possession, the disclosure of such information not being exempted by s 180 of the TIA Act. Having found that the impugned evidence was obtained in contravention of an Australian law, the judge refused to admit it. He said:
The matters of significance that emerge include the following. This is a proceeding for a serious offence. The probative value of the evidence is very high and it is of fundamental importance to the prosecution case. There is considerable public interest in the admission of relevant and probative evidence in the prosecution of a serious offence. These matters all weigh strongly in favour of admission.
The gravity of the contravention is significant. It involved the authorisation by an Inspector of police for the exercise of a power that was not conferred by law, to engage in conduct by police that was not authorised by law. The contravention is fundamental in nature, and not merely procedural. It is not a case of exercising lawful power with a procedural breach. The power to do what was done did not exist.
The contravention led to the breach of a significant and fundamental right, being the right to privacy. It was done with a high level of carelessness towards the legislative provision that provided the power that was purported to be exercised. That carelessness must be seen in the context of the duty and high level of expectation placed on an authorised person in these circumstances.
I have considered the competing public interest considerations that apply in balancing these factors.
In these circumstances, despite the seriousness of the offence, the probative value and the importance of the evidence in this case, I am not persuaded that the desirability of admitting the relevant evidence outweighs the undesirability of admitting it.
In my view, to admit the evidence in these circumstances would be to condone the exercise of police power without careful regard to the terms in which the power is created. It would be to condone the exercise of police power that is not authorised by law.
Accordingly, I rule to exclude the evidence pursuant to section 138.
Pursuant to certification of the trial judge under s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’), given on 10 July 2024, the applicant seeks leave to appeal against the interlocutory decision on grounds that contend that the judge erred in finding that:
1… the ‘location information’ obtained by police was obtained in contravention of the Telecommunications (Interception and Access) Act 1979 and the Telecommunications Act 1997; and
2… the desirability of admitting the evidence obtained from the search of the vehicle did not outweigh the undesirability of admitting the evidence, pursuant to s 138 of the Evidence Act 2008.
In our view the interlocutory decision is attended by error and cannot be permitted to stand. We would therefore grant leave to appeal; allow the appeal; and order that the interlocutory decision be set aside. Our reasons follow.

Factual background

During May 2021, State police from the Brimbank Divisional Response Unit (‘DRU’) were conducting ‘Operation Blackfire–2020’, a major drug investigation relating to the respondent. As part of this investigation, police established that the respondent was using a particular mobile phone number connected to the Telstra network. Detective Sergeant Aftyn Rockes was the investigation manager for Operation Blackfire–2020.
Detective Rockes gave evidence at committal proceedings on 14 February 2022 that, in order to track a mobile telephone, the
the process that we [Victoria Police] have is if an informant or our tactical intelligence officers want to submit anything through the Request Management System, they seek permission off the investigation manager, who in this case is me, and that is as simple as a verbal conversation … , and then it gets sent through to the inspector who makes the decision about whether or not it’s approved.
According to Detective Rockes, tracking mobile telephones is ‘an investigation tool that we utilise to gather information’. He said he did not turn his mind to the legality of tracking the applicant’s telephone ‘because it’s a very commonly used tool that we have’.
At 10.07 am on 14 May 2021, Leading Senior Constable Naomi Sayers sent an email to Detective Senior Sergeant Robyn Sheather from the Brimbank DRU containing the following:
As just discussed please find attached the information pertaining to the proposed Telstra Triangulation (LBS) operating from 14/05/21 to 26/05/21 for MDID BLACKFIRE-2020. Cost $100 set up & 5c Per Ping. Forwarded for you information, assessment & approval.
In turn, Detective Sheather sent an email at 10.12 am to the Investigation and Response Manager, Detective Acting Inspector William Mobilio, setting out her approval of the request to authorise the proposed Telstra Triangulation (LBS) [Location Based Services Platform] in the following terms:
Sir, I approve the request as per below. It is necessary to identify the movements of the POI prior to and during SSU deployment. For consideration.
At that time, Inspector Mobilio was an ‘authorised officer’ within the meaning of s 5(1) of the TIA Act. He made a statement on 2 March 2022, in which he said:
I subsequently reviewed the request made via D/S/Sgt Sheather of the [DRU] and was satisfied the circumstances were justified and proportionate under section 180F of the [TIA Act] and privacy was considered in making my decision.
After forming my decision, I accessed the RMS (Request Management System) database. This is an internal police database. I accessed the specified RMS request being RMS1134693 and subsequently certified that request by clicking ‘certify’ within the database. Confirmation of the certification of that request was then forwarded to LSC Sayers by way of automated email.
In a statement made on 25 January 2022, Clare Hogbin stated that, on 14 May 2021, she was an Intelligence Support Officer in the Victoria Police Information Service Unit (‘ISU’) — primarily an administrative role relating to the Request Management System (‘RMS’) — and was assigned to working on submitted ‘tickets’ relating to the RMS. She received a ticket from LSC Naomi Sayers ‘in relation to requesting a Telstra Triangulation’. Ms Hogbin continued:
I then logged in to the Telstra ‘Darwin’ portal, where I accessed the phone triangulation. All the relevant details were already in the portal and I just clicked ‘locate’. This then produces a map which displays a possible location based on relevant cell towers and the corresponding coordinates. I then took a screenshot and exported it, before sending it to Naomi [Sayers] via email.
This process was repeated numerous times on 14^th of May as well as several other days including 18^th, 19^th, 20^th of May 2021. In the late afternoon of the 14^th of May I also set up an automatic schedule for the triangulation to occur hourly over that weekend. I was then informed on the 20^th May 2021 that the person of interest was apprehended, and no further requests were serviced.
Adam Gelfe is a Senior Security officer in the Law Enforcement Liaison Section of Telstra. He is authorised to issue evidentiary certificates under the TIA Act on behalf of Telstra Corporation Limited (‘Telstra’). A statement he made on 1 September 2022 contains the following:
3.1 Telstra is a carrier and, as part of its business, operates telecommunication networks and facilities and supplies telecommunications services to the public.
3.2 In operating its business, Telstra holds records containing customer information and telecommunications data relating to the services it supplies.
3.3 Telstra received notification of an authorisation under the [TIA Act] (details of which are set out below) …
Annexure ‘A’ to Mr Gelfe’s statement was as follows:[3]
Telstra’s “Ostrava” environment hosts law enforcement interfaces and provides permitted users access to the Locus application. The Locus application allows permitted users to enter subscriber details such as MSISDN [Mobile Station International Subscriber Directory Number], IMSI [International Mobile Subscriber Identity] or IMEI [International Mobile Equipment Identity] numbers to obtain the prospective (ongoing) location details of the targeted handset.
The process for obtaining data is as follows:
When a permitted user makes an authorised request via Locus, Locus will request the Telstra Mobile Location Based Services Platform (LBS) to provide the handset location on a periodic basis as defined in the authorised request. The Telstra Mobiles LBS platform returns the currently connected location of the handset, or its last known location as seen on the network (if the handset is not currently active on the network). On receipt of a request from the LOCUS application the Telstra Mobile LBS platform requests a location update for the target handset via 3GPP Mobile standards. The positioning response from the Telstra Mobile LBS platform provides location information to the LOCUS application. This location information is represented as various types of shapes depending on whether CELL (for example polygons or circles) or Sub-CELL (for example ellipsoid arcs or ellipsoid points), location information is available. These shapes represent the network’s best understanding of the location of the requested handset. Where a handset is not currently active on the network, the platform provides the last known location of the handset (within a six-day timeframe) including the associated cell coverage polygon and co-ordinates.
This location information is then used by the LOCUS application to provide a Locus user, either via a machine-to-machine interface or visualised on a map through a web user-interface, the location of the handset at the points in time specified in the authorised request.
[3]Emphasis added.
Mr Gelfe also gave evidence before a Judicial Registrar on 16 March 2023 under s 198B of the CPA. His evidence was that permitted users of the Ostrava environment, who have access to the Locus application, are from a law enforcement agency, in this case Victoria Police. A permitted user — in this case, Clare Hogbin — then utilises the system to search either a particular mobile phone number or a handset via an identification number. The user can then make a request through the Locus application for the location of the handset. That request is made via the Telstra Mobile LBS, and can include a request for periodic updates as to the location of the phone. Mr Gelfe said that
the way it works is the user inputs the data in relation to the service. It sends a poll or a page to the network to confirm that the handset is on, as in on the network. It then responds and it will go to the LBS system. The LBS system sends a page out to the handset, it receives a response from the handset and the handset will say, ‘I’m connected to this particular base station on this particular antenna’. And that is then pushed back through to the LBS system to the Locus platform, which is then available to the authorised user.
Mr Gelfe also gave the following evidence under cross-examination:
… Locus makes the request to LBS?---Yep.
LBS then engages the network?---Correct, yes.
And LBS causes the network to communicate with the particular handset?---Yep.
And the network causes the handset to send data back to the network?---Yep.
Which is then translated back up to LBS and eventually to Locus?---Yep.
All right. That is all the steps that are involved in that process?---Yeah, essentially.
…
Is there anything … of relevance that we are missing?---No, that’s what you need to know.
All right. Now, so is polling phone, to your understanding, the same as what might be referred to as pinging the phone?---Yep, it’s the same thing.
And when the phone is caused by the network to effectively reveal its location, what is it that the handset sends by way of data back to the network?---Okay, so it sends like a packet … of data back, and the packet contains the actual location data, so the cell – the cell that it’s connected to, the base – then the antenna, … so the frequency determines the technology that’s being used.

Proposed ground 1: The ‘location information’ was obtained in breach of TIA Act

The applicant’s submissions in this Court

In support of the first proposed ground, counsel for the applicant submitted that ss 271, 275A and 276 of the TA govern how a ‘carrier’[4] — Telstra is a carrier — protects the confidentiality of information that relates (among other things) to the contents of communications, carriage services supplied and the ‘affairs’ of other persons which comes to the carriers knowledge, or into the carrier’s possession, in connection with the carrier’s business. A person who breaches s 276 commits an offence. An exemption from the provisions of s 276 is, however, to be found in s 280(1)(b), which permits the disclosure or use of information or a document if the disclosure or use is ‘required or authorised by or under law’.
[4]By virtue of s 7(1) of the TA a ‘carrier’ is ‘the holder of a carrier licence’; and a ‘carrier licence’ is ‘a licence granted under section 56’. And so far as relevant, s 5(1) of the TIA Act defines ‘carrier’ as ‘a carrier (within the meaning of the Telecommunications Act 1997)’; or ‘a carriage service provider’.
In turn, counsel submitted, s 180(2) of the TIA Act permits an authorised officer of a criminal law ‘enforcement agency’[5] to authorise the disclosure of specified information that comes into existence during the period of the authorisation. Preconditions for such an authorisation are found within s 180(2), and in ss 180(4) and 180F. There was no issue in this case that the provisions of s 180(4) were met, in that Inspector Mobilio, who authorised the disclosure of prospective information, was an authorised officer of a criminal law enforcement agency. The primary judge was therefore incorrect to find that the conduct of police went beyond what was permitted by law.
[5]See s 280(2) of the TA, and ss 5(1) and 176A of the TIA Act, for the definition of ‘enforcement agency’.
Counsel for the applicant submitted that the judge was wrong to in effect find that the expression ‘in connection with the [carrier’s] business as … a carrier’ in s 276 of the TA equated to the ‘ordinary course of business’; and that, since it is not ‘part of the business of a carrier to be actively generating location information about a mobile phone handset in order to determine its location’, s 276 was breached and the information obtained was not authorised under s 180 of the TIA Act.
The applicant’s counsel submitted that the underlying purpose of s 276 of the TA, along with the obligations placed on Telstra by s 313, inform the meaning of the phrase ‘in connection with the carrier’s business’ used in s 276. The obligation of a carrier to act in a manner consistent with the requirements of s 313 is not optional. Section 313 does not prescribe the mechanism through which ‘such help as is reasonably necessary’ is to be facilitated, nor limit the mechanism through which the obligation of the carrier is to be fulfilled.

Counsel submitted that Telstra complies with s 313 of the TA by permitting a small class of police members access to its Locus application, when authorised to do so pursuant to s 180(2) of the TIA Act. The words ‘in connection with’ are not synonymous with ‘in the ordinary course’ of ‘the business of a carrier’. By construing s 276 in the manner that he did, the primary judge failed to give sufficient weight to the obligation s 313 creates. Further, the judge construed s 180(2) in a manner inconsistent with the plain and literal meaning of the provision. The judge fell into error in reading down s 180(2) of the TIA Act and the obligation of Telstra under s 313 of the TA.

The respondent’s submissions in this Court

Counsel for the respondent submitted that the primary judge’s construction of the legislation was correct. The legislation’s silence on how a carrier may assist a law enforcement agency, and the method by which an authorised officer may obtain prospective information, is no justification for giving the relevant provisions an ambit wide enough to accommodate access to information that the authorities are complicit in generating. In fact, and having regard to the power created by the statute, it should be construed narrowly. It should be assumed that, by creating the power that it did — and permitting its exercise without the issue by a court of a warrant — the legislature intended a measure of protection would be afforded to the rights of individuals and ensure that ‘the appropriate balance [was] kept between … the law enforcement agencies on the one hand and criminal suspects … on the other’.[6]
[6]Ousley v The Queen (1997) 192 CLR 69, 94 (Gaudron J), citing Grollo v Palmer (1995) 184 CLR 348, 367, referring to the conferral of power on judges to grant warrants under the TIA Act.
Section 313 of the TA, counsel submitted, does not assist the applicant. The scope of s 180 of the TIA Act is not widened by recourse to s 313 of the TA. On the contrary, the nature of the scope of the obligation on carriers to help law enforcement agencies in s 313(3) is defined by the powers conferred on the ‘officers and authorities’ in ‘enforcing the criminal law’ by s 180. That is why, by ss 313(5) and (6), the carrier and its agents are protected from liability for the assistance they provide authorities in good faith.

Discussion

In our opinion, the primary judge erred in holding that the location information in the present case did not come into the carrier’s possession ‘in connection with’ its business, and in finding that s 180(2) of the TIA Act did not authorise Inspector Mobilio to disclose information gathered the from respondent’s mobile telephone about its location.
Section 270 of the TA provides a ‘simplified outline’ of pt 13, which is headed ‘Protection of Communications’. For present purposes, the relevant features of that simplified outline are:
•first, carriers and carriage service providers must protect the confidentiality of information that relates to the contents of communications that have been, or are being, carried by carriers or carriage service providers, and the affairs or personal particulars of other persons;
•secondly, the disclosure or use of protected information is authorised in limited circumstances (for example, disclosure or use for purposes relating to the enforcement of the criminal law); and
•thirdly, an authorised recipient of protected information may only disclose or use the information for an authorised purpose
Under s 271 of the TA, found in div 1 of pt 13, a ‘carrier’ and ‘carriage service provider’ such as Telstra is an ‘eligible person’.
By virtue of s 275A, ‘information about the location’ of a mobile telephone handset is taken to be information or a document ‘that relates to the affairs of the customer responsible for the handset or device’.

Significantly, s 276(1), found in div 2 of pt 13 of the TA, provides carriers and carriage service providers — ‘eligible persons’ — must not disclose information that relates to the ‘affairs … of another person’ — which includes information about the location of a mobile telephone handset — if that information comes to the carrier’s or the carriage service provider’s knowledge, or into its possession, in connection with its business as such a carrier or provider. It provides:
276 Primary disclosure/use offence—eligible persons
Current eligible persons
(1) An eligible person must not disclose or use any information or document that:
(a)relates to:
(i)the contents or substance of a communication that has been carried by a carrier or carriage service provider; or
(ii)the contents or substance of a communication that is being carried by a carrier or carriage service provider (including a communication that has been collected or received by such a carrier or provider for carriage by it but has not been delivered by it); or
(iii)carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or
(iv)the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and
(b)comes to the person’s knowledge, or into the person’s possession:
(i)if the person is a carrier or carriage service provider—in connection with the person’s business as such a carrier or provider; or
(ii)if the person is an employee of a carrier or carriage service provider—because the person is employed by the carrier or provider in connection with its business as such a carrier or provider; or
(iii)if the person is a telecommunications contractor—in connection with the person’s business as such a contractor; or
(iv)if the person is an employee of a telecommunications contractor—because the person is employed by the contractor in connection with its business as such a contractor.
In the context of the present case, the clear effect of s 276(1) is that a carrier or carriage service provider (such as Telstra) must not disclose location information about a person’s mobile telephone (such as the respondent’s) that has come to the carrier’s or carriage service provider’s knowledge, or into its possession, in connection with its business. By reason of s 276(3), a person who contravenes the section ‘commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years’.
Section 280(1)(b) of the TA provides, however, that div 2 (in which s 276 is located) ‘does not prohibit a disclosure or use of information or a document if ... the disclosure or use is required or authorised by or under law’.
One such exception to the prohibitions in s 276(1), contemplated by s 280(1)(b), is found in s 180 of the TIA Act. Section 180 provides:
180 Authorisations for access to prospective information or documents
(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under this section.
Prospective authorisation
(2) An authorised officer of a criminal law‑enforcement agency may authorise the disclosure of specified information or specified documents that come into existence during the period for which the authorisation is in force.
Authorisation for access to existing information or documents may also be sought
(3) The authorised officer may, in that authorisation, also authorise the disclosure of specified information or specified documents that came into existence before the time the authorisation comes into force.
Limits on making the authorisation
(4) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for the investigation of:
(a)a serious offence; or
(b)an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for at least 3 years.
Period for which authorisation is in force
(6) An authorisation under this section:
(a)comes into force at the time the person from whom the disclosure is sought receives notification of the authorisation; and
(b)unless it is revoked earlier, ends at the time specified in the authorisation, which must be a time that:
(i)is no later than the end of the period of 45 days beginning on the day the authorisation is made; and
(ii)if the authorisation is made under a journalist information warrant—is no later than the end of the period specified under subsection 180U(3) as the period for which the warrant is to remain in force.
Revoking the authorisation
(7) An authorised officer of the criminal law enforcement agency must revoke the authorisation if:
(a)he or she is satisfied that the disclosure is no longer required; or
(b)in a case where the authorisation is made under a journalist information warrant—the warrant is revoked under subsection 180W(1).
The effect of s 180, is that the prohibition in s 276 of the TA will not be breached if an authorised officer of a criminal law enforcement agency has authorised the disclosure of specified information or specified documents that come into existence during the period for which the authorisation is in force (that came into existence before the time the authorisation comes into force). A precondition of making the authorisation is that the authorised officer must be satisfied that the disclosure of the specified information or specified documents is reasonably necessary for the investigation of a serious offence (or an offence against a law of the Commonwealth, a State or a Territory that is punishable by at least three years’ imprisonment).
As we have mentioned, by reason of s 275A of the TA, information (or a document) about the location of a mobile telephone handset is taken to be information or a document that relates to the affairs of the customer responsible for the handset or device. Therefore, by reason of s 276, a carrier or carriage service provider — an eligible person — is prohibited from disclosing information about the location of a mobile telephone handset that has come to its knowledge, or into its possession, in connection with its business as a carrier or carriage service provider, unless an exception in s 180 of the TIA Act is engaged.
In his ruling, the primary judge expressed the view that the location information in the present case was not information that came to the carrier’s knowledge, or into its possession, ‘in connection with [its] business’ as a carrier. He said:
I consider the question whether the phrase ‘in connection with the carrier’s business as a carrier’ (taken from the language of section 276 of the TA) could include the generation of location information such as occurred in this case. In my view it cannot. It is not part of the business of a carrier to be actively generating location information about a mobile phone handset in order to determine its location.
In our opinion, this passage discloses error.
The judge’s conclusions that, since it is ‘not part of the business of a carrier to be actively generating location information about a mobile phone handset in order to determine its location’, the location information in the instant case did not ‘come into the possession of the carrier, in connection with [its] business as a carriage service provider’, produce a somewhat curious result, given the plain effect of s 276(1). As we have indicated, we consider that the effect of s 276(1) is that a carrier or carriage service provider is prohibited from disclosing location information that comes to its knowledge or into its possession in connection with its business as a carrier or provider. Put another way, disclosure of location information is prohibited only if the information has come to the carrier’s or carriage service provider’s knowledge or into its possession ‘in connection with [its] business as such a carrier or provider’. Presumably, therefore, information which has come to the carrier’s or carriage service provider’s knowledge, or into its possession, other than in connection with its business as a carrier or provider — as the judge considered that the location information did in this case — is not prohibited from disclosure (at least under s 276(1) of the TA).
Furthermore — and for convenience repeating part of the judge’s remarks set out above[7] — when construing s 180 of the TIA Act the judge said[8] that
It is clear that the legislative intent in [s 180 of the TIA Act] is to create a power whereby an authorised officer of a criminal law-enforcement agency may authorise the disclosure, by a carriage service provider to the law enforcement agency, of specified information or specified documents that come into existence during a period of time into the future, that being the period of time for which the authorisation is in force. The specified information or specified documents envisaged by this section, in my view, must be information or documents that come into existence, and come into the possession of the carrier, in connection with their business as a carriage service provider.
More importantly, in my view this section, properly construed, does not give the law enforcement agency the power to do what police did in this case. It does not provide a power for police, or the carrier, to create or generate telecommunications data, and thus location information, that would not otherwise come into existence, as was done in this case.
In my view, the location information obtained by police pursuant to the authorisation of Inspector Mobilio was obtained in contravention of the law. The search of the accused’s vehicle on 21 May 2021 was in consequence of obtaining that information. Thus the results of that search were obtained in consequence of a contravention of an Australian law.
[7]At [7].
[8]Emphasis added.
This passage also discloses error.
Telstra is a ‘carrier’ and a ‘carriage service provider’ for the purposes of the TA and TIA Act. As part of its business, it operates telecommunication networks — ‘a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy’[9] — and supplies telecommunications services — ‘a service for carrying communications by means of guided or unguided electromagnetic energy or both, being a service the use of which enables communications to be carried over a telecommunications system operated by a carrier’[10] — to the public.
[9]See TA, s 7(1).
[10]See TA, s 7(1); TIA Act, s 5(1).
Mr Gelfe’s unchallenged evidence, contained in his statement, was that Telstra is a carrier and, as part of its business, operates telecommunication networks and facilities and supplies telecommunications services to the public. As part of operating its business, Telstra holds records containing customer information and telecommunications data relating to the services it supplies.
Moreover, Mr Gelfe’s evidence establishes that, in the course of operating its business, Telstra is capable of accessing information about its customers, including location information. Hence, as part of that business, it operates the Ostrava environment, which permits access to the Locus application, making the acquisition of location information possible. As described by Mr Gelfe, the Locus application hosts ‘law enforcement interfaces’ and provides permitted users access to the Locus application, thereby obtaining location information. We would therefore reject the notion advanced by the respondent that the location information in the present case did not come to Telstra’s knowledge or into its possession ‘in connection with’ its business as a carrier or carriage service provider.
In a different context, it has been observed that the meaning of the word ‘connection’ is both wide and imprecise,[11] and that the words ‘connected with’ are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote.[12] To similar effect, we consider that the words ‘in connection with’ as used in s 276(1) are both wide and somewhat imprecise. Giving the words their ordinary English meaning, however, in the context in which they appear in the statute, and acknowledging that they are capable of evoking a range of relationships, we consider that the words simply require an association between the conduct of the carrier’s or carriage service provider’s business and the acquisition of the relevant location information. Mr Gelfe’s evidence was sufficient to establish that association.
[11]Collector of Customs v Cliffs Robe River Iron Associates (1985) 6 FCR 271, 275; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264, 275.
[12]Collector of Customs vPozzolanic (1993) 43 FCR 280, 288.
In our view, permitting the use of the Locus application clearly was consistent with Telstra’s statutory obligations as a carrier or carriage service provider; in particular, the obligation found in s 313(3) of the TA, which makes clear that a carrier must, in connection with its supply of carriage services, give law enforcement authorities such help as is reasonably necessary for the purpose of enforcing the criminal law. So far as relevant, s 313(3) provides:
313 Obligations of carriers and carriage service providers
…
(3) A carrier or carriage service provider must, in connection with:
(a)the operation by the carrier or provider of telecommunications networks or facilities; or
(b)the supply by the carrier or provider of carriage services;
give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:
(c)enforcing the criminal law …
It is plain that s 313(3) contemplates that a carrier or carriage service provider must give law enforcement authorities such help as is reasonably necessary for enforcing the criminal law in connection with the operation by the carrier or provider of telecommunications networks or the supply by the carrier or provider of carriage services.
In our opinion, when the statutory scheme in the TA and TIA Act are considered as a whole, it cannot be doubted that the scheme envisages that carriers and carriage service providers such as Telstra will have location information come to their knowledge or into their possession in connection with their business as a carrier or carriage service provider, and that they must be capable of disclosing such information to law enforcement agencies for the purposes of enforcing the criminal law so long as certain safeguards are met.
For these reasons, we consider that the location information about the respondent’s mobile telephone came to Telstra’s knowledge or into its possession in connection with its business as a carrier or carriage service provider. Disclosure of that information to the police was permitted under s 180 of the TIA Act because a relevant authorisation was in force. There being no demur to the proposition that the provisions of s 180(4) were met — in that Inspector Mobilio, who authorised the disclosure of prospective information, was an authorised officer of a criminal law enforcement agency — the judge was wrong to find that the conduct of police went beyond what was permitted by law. The location information which (at least partly) provided reasonable grounds for suspicion under s 82 of the Drugs Act was lawfully obtained, so that the search of the respondent’s car — which located a very substantial quantity of cannabis — was also lawful.
In light of the foregoing conclusions, the interlocutory decision must be set aside.

Proposed ground 2: Operation of s 138 of the Evidence Act 2008

Given our conclusions on the first ground, it is unnecessary to consider ground 2.
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[2024] VSCA 210

19 September 2024