The federal government has moved to stamp out any legal challenge to the AN0M police sting, introducing legislation to Parliament to “clarify” the evidence collected through the encrypted messaging app.
Attorney-General Mark Dreyfus introduced the Surveillance Legislation (Confirmation of Application) Bill 2024 last week, which seeks to directly address a series of legal challenges by law enforcement authorities to the use of messages from an encrypted messaging app.
The bill would serve to put to bed the legal question at the centre of a High Court challenge regarding evidence obtained through the sting, and if passed, will likely mean hundreds of prosecutions in Australia can go ahead.
Operation Ironside
In June 2021, a three-year joint operation between the Australian Federal Police and the US Federal Bureau of Investigation (FBI) dubbed Operation Ironside, was made public, with the agencies covertly distributing smartphones to alleged organised crime groups with an encrypted communication app dubbed AN0M installed on it.
These phones were first distributed in late 2018, with 1,650 Australians and about 11,000 individuals around the world using the messaging app.
After obtaining warrants, the AFP was able to view messages being sent through AN0M, which featured open discussions about alleged crimes including arms sales, planned executions and drug deals.
‘Most significant operation in policing history’
In mid-2021 the AFP executed around 500 search warrants, arrested 224 people and seized $44.9 million in cash, 104 guns and 3.7 tonnes of drugs.
Around the world, more than 800 users of AN0M were arrested in 16 countries.
The AN0M sting was labelled the “most significant operation in policing history in Australia”.
But in the years since, the use of the fake encrypted messaging app by police has proven highly controversial and led to several legal challenges over the legitimacy of evidence obtained through it.
The central challenge to the use of AN0M messages in legal proceedings is the claim that the AFP did not obtain the appropriate form of warrant to access these messages.
While the AFP obtained data surveillance devices and computer access warrants in order to access the AN0M messages, lawyers for several defendants claim they should have instead obtained warrants under the Telecommunications (Interception and Access) Act (TIA Act), meaning evidence from the messages should not be used in court.
The issue stems from whether authorities were “intercepting” the encrypted messages over the telecommunications network under definitions in the TIA Act.
Clarification
Some of those charged as part of Operation Ironside in South Australia have been granted special leave to make these arguments to the High Court.
But the federal government’s new legislation will “clarify” that evidence obtained through Operation Ironside was “lawfully obtained”.
Dreyfus said in Parliament last week that the bill is consistent with previous rulings by the Supreme Court of South Australia and the South Australia Court of Appeal, which found that the Operation Ironside evidence was not obtained through an interception of communications.
“The bill is targeted in its scope and will only apply to information or records obtained under a specified range of warrants issued in connection with Operation Ironside,” Dreyfus said.
The Explanatory Memorandum for the legislation says that the bill will not serve to change how the police can collect evidence or use their powers.
“Challenges to evidence obtained from AN0M have arisen in several proceedings and may continue to be raised in future proceedings,” it said.
“The bill would not alter the existing law, or the operation of the Surveillance Devices Act, Crimes Act or Telecommunications Interception and Access Act, and so would not alter the circumstances in which the AFP or other agencies may collect information using powers provided for by those acts.
“Rather, the bill would clarify that information or records obtained by the AFP under relevant warrants was obtained in a manner that was consistent with the Parliament’s intent.”
