In this Insight, we examine recent Australian case law which considered the right of a person named in a Section 3LA order (the power to compel a person to reveal their private encryption keys, personal identification numbers or passwords) of the Crimes Act 1914 (Cth) to be heard before any such order is made.

Case Study: Commissioner of the Australian Federal Police v Luppino [2021] FCAFC 43

In this case, a Section 3LA Order was served on the Respondent, Mr Luppino. 

This would require Mr Luppino to provide to a constable any information or assistance which was reasonable and necessary to allow a constable to access data on Mr Luppino’s Samsung mobile phone which was obtained in a valid search warrant.

Mr Luppino appealed the Section 3LA order on various grounds, the most important ground being that a Magistrate should give the person likely to be affected by such an order with an opportunity to be heard before making the order. He submitted that the making of a Section 3LA order is conditioned upon the Magistrate complying with the rules of procedural fairness and in particular, the natural justice hearing rule.

The natural justice hearing rule states that a person whose interests are to be affected by a decision should receive a fair and unbiased hearing before a decision is made.

The judges of the Federal Court decided that natural justice does not attach itself to orders made under s 3LA of the Crimes Act 1914 (Cth).

The finding in this case means that people are not afforded the right to a hearing before the order to compel them to reveal / give access to their phone can be made

Their Honours provided several reasons for this conclusion. 

They stated that it is legislatively intended that natural justice be excluded from orders made under s 3LA of the Crimes Act 1914 (Cth) as natural justice would otherwise compromise or thwart the effectiveness of those processes.

They decided that the primary judge of the lower court had correctly proceeded on the basis that it is possible to destroy, hide or disable evidentiary material before a Police Officer had gained access to the material if natural justice was to be afforded to every order made under s 3LA.

They stated that “If natural justice applies, then an application under s 3LA must be made on notice and the subject of the proposed order must be given the opportunity to be heard.  It is reasonable to infer that that will delay the Commissioner’s investigation. It might involve considerable delay.  That gives rise to the potential for any order ultimately obtained to be rendered ineffective because disablement or disablement activities are carried out and, at a more general level, for any evidential material that might have been obtained following access to the evidential material on the computer or data storage device being destroyed, hidden or disabled.”

Accordingly, it was held that a person who is subject to an order under s 3LA of the Crimes Act 1914 (Cth) is not subject to the rules of natural justice, and they are excluded by the intention of the legislation. 

Hence, they are not afforded the right to a hearing before the order can be made. 

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