QUESTIONS OF LAW RESERVED (NOS. 1 AND 2 OF 2023)

This matter concerned questions of law reserved for the Full Court of the Supreme Court of South Australia, arising from interlocutory applications made by defendants facing criminal charges. The defendants sought to exclude evidence derived from communications sent via the AN0M platform, alleging unlawful interception contrary to the *Telecommunications (Interception and Access) Act 1979* (Cth) (TIA Act), and challenging the validity of authorisations obtained by the Australian Federal Police (AFP) under the *Crimes Act 1914* (Cth). The proceedings also involved questions regarding whether certain state offences had a federal aspect under the *Australian Federal Police Act 1979* (Cth).

The court was required to determine whether the operation of the AN0M platform, which involved the AFP obtaining copies of user communications without their knowledge or consent, constituted an "interception" of a communication passing over a telecommunications system contrary to s 7(1) of the TIA Act. If so, the court had to consider whether such evidence would be inadmissible under s 63 of the TIA Act. Further, the court was asked to assess the validity of two 'moveable covert operations' (MCO) authorisations granted to the AFP, specifically whether they were invalid due to misstating statutory criteria or manifesting a misconstruction of the law by the authorising officers. Finally, the court considered whether certain state offences, as particularised in the ex-officio information, had a federal aspect within the meaning of s 4AA of the AFP Act.

Regarding the TIA Act, the Court held that the AN0M platform did not involve an interception contrary to s 7(1). The reasoning focused on the nature of the AN0M system, which involved the creation of a copy of the communication on a server controlled by the AFP, rather than the interception of a communication in transit over a telecommunications system. Consequently, the question of inadmissibility under s 63 of the TIA Act did not arise. The Court also found that the two MCO authorisations were valid, rejecting the defendants' arguments regarding facial invalidity and misconstruction of the law.

The Court declined to answer questions concerning whether the state offences had a federal aspect under s 4AA(1)(a) and (c) of the AFP Act, deeming it unnecessary and undesirable to do so as these questions were non-dispositive and turned on the scope of Commonwealth legislative power. However, the Court answered in the affirmative that at least one of the charged offences had a federal aspect under s 4AA(1)(d) of the AFP Act.