FEDERAL COURT OF AUSTRALIA
Luppino v Fisher (No 2) [2019] FCA 1100
File number: SAD 288 of 2018 Judge: WHITE J Date of judgment: 15 July 2019 Catchwords: CRIMINAL LAW – application for judicial review of an ex parte order made by a magistrate under s 3LA of the Crimes Act 1914 (Cth) requiring the Plaintiff to provide a constable with any information or assistance which is reasonable and necessary to allow the constable to access, copy or convert data on a computer or data storage device – whether there was a denial of procedural fairness in the grant of the order – whether the order identifies the information or assistance required to be provided – whether the order specifies the period in which, and the place at which, the information or assistance is to be provided – whether the order failed to identify the particular computer or data storage device the subject of the order – whether a mobile phone is a “computer” or “data storage device” – whether the magistrate granting the order could have been satisfied by either ss 3LA(2)(c)(i) or 3LA(2)(c)(ii) – whether the order was made by the magistrate in his personal capacity or by the Magistrates Court of South Australia – application allowed and declaration of invalidity made. Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6
Australian Human Rights Commission Act 1986 (Cth) s 46PO(4)(b)
Crimes Act 1914 (Cth) ss 3(1), 3C, 3E, 3F, 3G, 3K, 3L, 3LA, 3LAA, 3ZQO, 4AAA, 10, 23ZA, 23ZD, 23ZF
Crimes Legislation Amendment Act 2011 (No 2) (Cth)
Crimes Legislation Amendment (Serious and Organised Crime Act (No 2) 2010
Criminal Code 1995 (Cth) s 400.4(1)
Cybercrime Act 2001 (Cth)
Evidence Act 1995 (Cth) s 9(3)
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Judiciary Act 1903 (Cth) s 39B
Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth) s 6(1)
Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth)
Cybercrime Bill 2001
Magistrates Court Act 1991 (SA) s 6(2)
Cases cited: Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596
Australian Crime Commission v Stoddart [2011] HCA 47; (2011) 244 CLR 554
Australian Federation of Construction Contractors v Australian Building Construction Employees’ and Builders Labourers’ Federation [1984] FCA 218; (1984) 73 FLR 61
Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union (No 2) (1987) 15 FCR 64
Coward v Allen [1984] FCA 53; (1984) 52 ALR 320
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514
Grollo v Palmer, Commissioner of Australian Federal Police [1995] HCA 26; (1995) 184 CLR 348
Harts v Commissioner, Australian Federal Police (1997) 75 FCR 145
Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384
Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57
Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1
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- Case
- [2019] FCA 1100
- Decision Date
CaseChat Overview and Summary
The court addressed several legal issues, including the application of procedural fairness principles to the issuance of the order, the specificity required in the order itself, and the interpretation of key terms in the statute. It considered whether the magistrate had sufficient evidence to be reasonably satisfied that the plaintiff had relevant knowledge, as required by section 3LA(2)(c). The court also assessed whether the magistrate acted in their personal capacity or on behalf of the Magistrates Court. The decision hinged on whether the magistrate had a reasonable basis to be satisfied that the plaintiff had knowledge of the PIN or password for the device in question and whether the order met the statutory requirements.
The court found that the plaintiff's arguments regarding procedural fairness, the specificity of the order, and the identification of the device were valid. The magistrate's order failed to meet the statutory requirements, as it did not sufficiently identify the information or assistance required, the period and place for providing such assistance, or the particular device in question. Additionally, the court determined that the magistrate could have been satisfied under either subsection 3LA(2)(c)(i) or 3LA(2)(c)(ii). The order was deemed to have been made in the magistrate's personal capacity rather than by the Magistrates Court of South Australia. Consequently, the court allowed the application and declared the order invalid.
The court ordered that the order made by the first defendant on 30 August 2018 under section 3LA of the Crimes Act with respect to the plaintiff is invalid. The court invited the parties to make submissions regarding costs. The decision highlighted the importance of ensuring that orders made under section 3LA comply with statutory requirements and procedural fairness principles.
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Legal Principle Established
Counsel submitted that these rationales are apposite to the exercise of the power under s 3LA.Consideration In my opinion, the circumstance that s 3LA is intended to facilitate the execution of search warrants is significant. In the scheme established by Div 2 of Pt 1AA, s 3LA does not operate independently of the provisions concerning search warrants. It is an adjunct to those provisions by providing a means by which those executing search warrants may obtain assistance in order to achieve the purposes of the warrant. To my mind, that points to the principles developed by the courts concerning the application of the rules of natural justice to decisions concerning the issue of search warrants being also applicable to the exercise of the s 3LA order. That is more obviously so when the s 3LA order is made before a s 3E search warrant has been executed or before a computer or data storage device found during the execution of a search warrant is removed to another location or seized. It is readily understandable that a requirement that the subject of the order be heard in those circumstances would alert the subject to the imminent search or seizure and enable the purpose of the order to be frustrated. It is established that, when the existence of a particular state of mind is made a condition for the exercise of a power, the legislation conferring the power is treated as referring to a state of mind which is such as can be formed by a reasonable person who correctly understands the meaning of the law under which the person acts: R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42, (1944) 69 CLR 407 at 430; Wei at [33]. In the present case, the only question arising is that of whether the evidence before the first defendant was sufficient to allow him, acting reasonably and on a correct understanding of the law, to form the requisite state of satisfaction. Herein lies the difficulty for the plaintiff’s contention. First, by reason of the redaction on public interest immunity grounds, the Court does not know all of the information which was before the first defendant. I mention that, although Mr Booth’s affidavit had been filed and served on 5 February 2019, it was not until after the commencement of the hearing on 5 March 2019 that senior counsel for the plaintiff made a challenge to the claim of public interest immunity on which the redaction was based. Senior counsel accepted that this had been insufficient notice. It was not consistent with the principles of case management contained in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). That circumstance, amongst other things, led to my rejecting the plaintiff’s belated challenge to the claim of public interest immunity. However, quite apart from that consideration, it is not the case, as the submissions of senior counsel supposed, that the only information before the first defendant capable of supporting his state of satisfaction on the knowledge requirement is that contained in [6] of Mr Booth’s affidavit. Mr Booth had also deposed that, when the search warrant was executed, the plaintiff was the sole occupant of the vehicle and that there did not appear to be any items in the vehicle other than those which belonged to him. Further, Mr Booth deposed that the plaintiff had readily admitted that he did not require a PIN or password to operate the Samsung mobile phone and that he had provided readily the password for the Laptop. When asked whether there was a PIN or password for the Gold Samsung mobile, the plaintiff had answered “no comment”. Mr Booth had deposed to his experience in executing numerous search warrants that persons of interest generally freely provide the PINs and passwords to devices which have not been used for a purpose which was redacted in his affidavit, but do refuse to provide PINs or passwords for devices which have been used for that purpose. The evidence before the first defendant was rationally capable of supporting the state of satisfaction on his part that the plaintiff was a person who used or had used the Gold Samsung mobile, that that phone was protected by a PIN and/or password, that the plaintiff had knowledge of the PIN or password, and accordingly, that the plaintiff had “relevant knowledge” of the kind to which s 3LA(2)(c) refers.