The South Australian Court of Appeal (Livesy ACJ, Doyle and David JJA) has dismissed a challenge brought to the lawfulness of evidence obtained during the Australian Federal Police’s (AFP’s) Operation Ironside, which involved the use of an encrypted communications application called ‘AN0M’ that had been installed on mobile devices.

Broadly speaking, in Questions of Law Reserved (Nos. 1 and 2 of 2023) [2024] SASCA 82, the Court of Appeal held:

1. The use of the AN0M application and platform did not involve an interception of the AN0M communications in contravention of s 7(1) of the Telecommunications (Interception and Access) Act 1979 (Cth).

2. The challenges to the validity of the major controlled operations undertaken by the AFP had not made out.

3. An investigation by the AFP of the State offences was incidental to the AFP’s existing investigation of Commonwealth offences.

Trent Glover appeared for the Commonwealth Attorney-General, who intervened in the proceedings pursuant to s 78A of the Judiciary Act 1903 (Cth) and s 9 of the Crown Proceedings Act 1992 (SA). He is briefed by the Attorney-General and AFP in Operation Ironside proceedings around Australia.

The decision is available here – http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASCA/2024/82.html