afp & fbi - breaking code or breaking rules?

In South Australia, two accused individuals (referred to as CD and Anor) faced prosecution based on evidence obtained through the AN0M platform. They challenged the admissibility of that evidence in the South Australian Supreme Court and, later, the Full Court, arguing that the interception of their communications contravened the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act).

The operation was conducted under a multinational investigation known in Australia as Operation Ironside, coordinated by the Australian Federal Police in cooperation with United States authorities namely the FBI who was central in it's creation and control.

background

AN0M was an encrypted messaging application designed to provide secure communications beyond the reach of law enforcement. Unbeknownst to users, AN0M had been developed and deployed with law enforcement involvement from its inception, and then introduced into organised crime networks following the dismantling of other encrypted platforms and was distributed through trusted referrals rather than public channels.

While messages appeared encrypted and secure at the user end, the AFP obtained copies of communications because the AN0M platform automatically duplicated messages to law-enforcement-accessible servers, and those servers were accessed under statutory warrants, including surveillance device and computer access warrants.

Between 2018 and 2021, millions of messages were collected globally through AN0M, forming the evidentiary basis for hundreds of criminal prosecutions in Australia and overseas.

The South Australian Prosecutions

In South Australia, two accused individuals, anonymised as CD and another, were charged with serious criminal offences including participation in a criminal organisation and firearms related conduct.

The prosecution case relied heavily on communications obtained through the AN0M platform.

Prior to trial, the accused sought to exclude the AN0M material, arguing that it had been unlawfully obtained and was therefore inadmissible.

The Interception Argument

The exclusion application was framed under the Telecommunications (Interception and Access) Act 1979 (Cth). Section 7(1) of the Act prohibits the interception of communications passing over a telecommunications system unless authorised by an interception warrant.

The accused argued that AN0M messages were communications transmitted over a telecommunications system and that law enforcement access to those messages amounted to interception without a valid warrant under the Act. On that basis, they contended the evidence was unlawfully obtained.

The argument focused on substance rather than form. Although AN0M was structurally different from traditional interception methods, the accused submitted that the practical effect was the same, namely the acquisition of private communications in transit.

Supreme Court and Full Court Decisions

At first instance, the Supreme Court of South Australia rejected the challenge. It held that the AN0M material was not intercepted while passing over a telecommunications system within the meaning of the TIA Act. The Court accepted that the data had been obtained pursuant to warrants issued under other legislative regimes.

That conclusion was upheld by the Full Court of the Supreme Court of South Australia, which answered a reserved question of law in favour of the prosecution. The Court reasoned that the statutory concept of interception did not extend to communications collected through a platform controlled by law enforcement, where users voluntarily transmitted their messages through that system.

The distinction drawn was between intercepting an external communications stream and receiving communications through a system lawfully accessed by authorities.

Legislative Intervention

Before the appellate process concluded, the Commonwealth Parliament enacted the Surveillance Legislation (Confirmation of Application) Act 2024 (Cth). The legislation sought to confirm that information obtained under specified AFP warrants in connection with Operation Ironside was not taken to have been intercepted for the purposes of the TIA Act.

The Act operated retrospectively, prompting constitutional challenges from the accused.

High Court Proceedings

The accused obtained special leave to appeal to the High Court of Australia. By special case, they challenged the constitutional validity of the Confirmation Act, arguing that retrospective validation of evidence gathering infringed Chapter III of the Constitution by interfering with the judicial function.

They contended that Parliament could not lawfully alter the legal character of evidence already before the courts in ongoing criminal proceedings.

Decision

In October 2025, in CD & Anor v The Commonwealth of Australia [2025] HCA 37, the High Court unanimously upheld the Surveillance Legislation (Confirmation of Application) Act 2024 (Cth), confirming that information obtained under specified warrants in connection with Operation Ironside is taken not to have been intercepted under the TIA Act and is admissible in prosecutions.

The Court held that the Act operated on the legal framework governing evidence collection, not on the adjudicative process itself.

The Court rejected arguments that retrospective clarification undermined judicial function.

The High Court did not make a generalised finding that all AN0M material would always be lawful independent of the Confirmation Act, but its decision confirmed that the statutory validation applied to the evidence in the cases before it.

Outcome

The decision secured the admissibility of AN0M evidence in Australian criminal prosecutions and resolved the legal uncertainty surrounding Operation Ironside. It confirmed that interception law is directed to unauthorised access to telecommunications systems, not to communications voluntarily transmitted through platforms lawfully accessed by authorities.

The ruling reinforced the capacity of existing surveillance frameworks to accommodate novel investigative techniques, provided they remain anchored in statutory authority.

Following the eventual guilty pleas, the accused were due for reappearance and sentencing in December.

Authored by Campbell Dore

Publisher

The Brief

campbell@thebrieflaw.com.au