Analysis
48 I begin with the argument concerning the principle of construction that, absent clear words, the legislature is taken not to have intended to abrogate or curtail a fundamental common law right or freedom.
49 With respect, Gleeson CJ made a clear statement of the relevant principle in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [19]-[20]:
19 Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that "[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness".
20 A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.
(Citations omitted.)
50 Gleeson CJ provided a further explanation of how the principle of construction worked in Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 where he said (at [19]-[21]):
19 Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation. The generality of that assertion of principle requires some qualification. It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. It is also true that there is a presumption, relevant for example to the construction of privative clauses, that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied. However, as McHugh J pointed out in Gifford v Strang Patrick Stevedoring Pty Ltd modern legislatures regularly enact laws that take away or modify common law rights. The assistance to be gained from a presumption will vary with the context in which it is applied. For example, in George Wimpey & Co Ltd v British Overseas Airways Corporation, Lord Reid said that in a case where the language of a statute is capable of applying to a situation that was unforeseen, and the arguments are fairly evenly balanced, "it is … right to hold that … that interpretation should be chosen which involves the least alteration of the existing law". That was a highly qualified statement and, if it reflects a presumption, then the presumption is weak and operates only in limited circumstances.
20 In Coco v The Queen, Mason CJ, Brennan, Gaudron and McHugh JJ said:
"The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights." (Footnote omitted.)
21 The joint judgment in Coco went on to identify as the rationale for the presumption against modification or abrogation of fundamental rights an assumption that it is highly improbable that Parliament would "overthrow fundamental principles, infringe rights, or depart from the general system of law" without expressing its intention with "irresistible clearness". In R v Home Secretary; Ex parte Pierson, Lord Steyn described the presumption as an aspect of the principle of legality which governs the relations between Parliament, the executive and the courts. The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.
(Citations omitted and emphasis added.)
51 The recent decision of the Full Court of this Court in Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166 is also relevant. In that case, the Court said (at [22]-[24]):
22 By authorising an overriding of such private interests in certain circumstances, search warrant legislation gives primacy to the public interest in the administration of criminal justice while also recognising the need for appropriate but limited protection of individual rights through the imposition of statutory conditions for the issue of a valid warrant. Strict compliance with those conditions is therefore required in order to give effect to that statutory purpose: George v Rocket at 110-111. However, in construing the statutory requirements for the issue of a search warrant, the Court should be careful to give effect to the legislation by its terms, and not approach its task armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers: Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; 124 FCR 384 at [68]. Construction of statutes that authorise the search of premises and the seizure of things from them must begin with "the ordinary meaning of the words considered according to their context and the legislative purpose": Hart at [64].
23 Importantly, the search and seizure provisions of the Crimes Act are not punitive and are therefore not to be treated as penal provisions for the purposes of statutory construction: Hart at [67]. Rather, it is appropriate to see those provisions as subject to the general principle that, in the absence of unmistakeable and unambiguous language, it is to be presumed that the legislature has not intended to interfere with basic rights, freedoms and immunities: see, e.g., Hart at [67] and the cases there cited. …
24 For modern search warrant legislation, the same strict compliance with the relevant statutory requirements may generally be seen to apply, but no further. Additional rights or requirements going beyond those spelt out are not easily to be inferred. …
(See Hart at [67]-[68].)
52 The Commissioner's point that the principle of construction is of limited assistance where the clear purpose of the legislation is (as here) the abrogation of a fundamental common law right or freedom finds support in the remarks of Gageler and Keane JJ in Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 at [313]-[314] as follows:
… The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that "[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve".
(Citation omitted; see also CXXXVIII v Honourable Justice Richard Conway White [2020] FCAFC 75; (2020) 274 FCR 170 (CXXXVIII) at [33]-[34].)
53 In North Australian Aboriginal Justice Agency, French CJ, Kiefel and Bell JJ expressed a different view. Their Honours said the following (at [11]):
Before considering the constitutional validity of any statute, it is necessary to consider its construction and operation. Its construction will give effect to the ordinary meaning of its text in the wider statutory context and with reference to the purpose of the provision. Further, the principle of legality favours a construction, if one be available, which avoids or minimises the statute's encroachment upon fundamental principles, rights and freedoms at common law. That presumption, which is well established, has been called "a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted". It is a presumption whose longstanding rationale is that it is highly improbable that parliament would "overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness". Its object was set out in the joint judgment of Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen:
"curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights."
It is a principle of construction which is not to be put to one side as of "little assistance" where the purpose of the relevant statute involves an interference with the liberty of the subject. It is properly applied in such a case to the choice of that construction, if one be reasonably open, which involves the least interference with that liberty. As TRS Allan has written:
"Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction."
(Citations omitted; contrast Gageler J at [80-[81]; see also Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1 at [54] per French CJ, Hayne, Kiefel and Nettle JJ; but see Gageler J at [86]-[88].)
54 The Commissioner submits that on any view of the construction issue, s 3LA authorises an order requiring a specified person to provide information or assistance that is reasonable and necessary to allow a constable to do one or more of the acts in paragraphs 3LA(1)(a), (b) or (c) and that the principle of legality is of "little assistance in determining the construction of whether the information or assistance which must be given is described in the order as particular or generic acts of information or assistance falling within the rubric of the statutory description or more generally by the use of the statutory description itself".
55 The prevailing view in the High Court, if I may put it that way, appears to be that of French CJ, Kiefel and Bell JJ in North Australian Aboriginal Justice Agency. However, even if that is not clear, it does not seem to me to be necessary to determine what differences there are between the two views and to determine which view should be followed. On any view, the principle of construction is of weak application in this case for two reasons.
56 First, there are not two arguable constructions of the statutory provision going directly to the scope of the power to require a person to provide information or assistance. The scope of the power is clear. It is such information or assistance as is reasonable and necessary to enable a constable to carry out one or more of the matters in s 3LA(1)(a), (b) or (c). The issue of disputed construction goes to a condition on the exercise of the power. I realise there is not always a clear distinction between the scope of a power and the conditions of its exercise, but nevertheless, I think it is relevant to the extent to which the principle of construction is given weight that the issue of disputed construction relates to a condition on the exercise of the power, not directly to the scope of the power.
57 Secondly, and probably in any event, the Commissioner did not seem to push his argument beyond the principles summarised by the primary judge and, in particular, the way in which the matter is put in the second dot point of "[r]emaining ambiguity or doubt" (see [38] above). The Commissioner's point is that there is no remaining doubt or ambiguity such that the principle of construction has a role to play. On the other side, although counsel for Mr Luppino referred to the well-established rule requiring strict compliance in search and seizure provisions (George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110-111; Smethurst v Commissioner of Police [2020] HCA 14; (2020) 376 ALR 575 (Smethurst) at [25] per Kiefel CJ, Bell and Keane JJ), he did not, as I understood him, seek to challenge the primary judge's summary of the relevant principles.
58 I turn now to consider the text, context and purpose of s 3LA. This is not a case where there is a particular piece of text which is capable of alternative constructions and the Court must determine which construction is the correct one. Mr Luppino's submission is that a requirement that the information or assistance to be provided be identified in the order is inherent in s 3LA. The Commissioner's contention is that Mr Luppino asks the Court to read into the section a condition which must be complied with, rather like the conditions set out in s 3LA(4). On either approach, matters of context, rather than a specific piece of text in the section, are of first importance.
59 I should make clear the exact nature of the dispute as to the construction of s 3LA. In doing so, I will use the shorthand "access data on a computer or data storage device" to describe the matters identified in s 3LA(1) (a), (b) and (c).
60 Both sides agree that the limit of the power in s 3LA is the provision of information or assistance that is reasonable or necessary to allow a constable to access data on a computer or data storage device. The Commissioner submits that the obligation as set out in the order can be expressed in terms of the statutory words, whereas Mr Luppino submits that the information or assistance must be described, although he accepts that the information or assistance may be described generically, that is to say, the type of information or assistance required. Whether Mr Luppino accepts the qualification or not, it is plainly correct. As previously stated, an order under s 3LA may operate both before and after a warrant issued under s 3E of the Crimes Act has been executed. It is correct to say that in the case of an application for an order under s 3LA before a warrant under s 3E has been executed, a constable will often be unaware of the nature of any data protection measures in computers or data protection devices found on the execution of such a warrant. Even in the case of an order under s 3LA obtained after the execution of a warrant issued under s 3E, a generic description must be permissible in order to avoid multiple applications as layers of data protection measures are revealed. As I understand it, this was the view of the primary judge and, in my opinion, it reflects the operational realities which, according to Hart, may be taken into account. The Full Court of this Court in Hart, referred to Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 in which case Mason J held that practical considerations suggested that it was unlikely Parliament intended to import a limitation of the nature advanced in that case into the authority given by a warrant granted under s 10(b) of the Crimes Act. His Honour said (at 83):
In approaching the scope of the authority given by the warrant we must keep practical considerations steadily in mind. It is simply impossible for a police officer executing a warrant to make an instant judgment on the admissibility, probative value or privileged status of the documents which he may encounter in his search. Generally speaking, it is in the course of the subsequent investigation following seizure of the documents that informed consideration can be given to the documents and an assessment made of their worth or significance in the respects already mentioned. … In the case of production on discovery and under subpoena duces tecum there is a court or tribunal already exercising jurisdiction in the matter which could determine questions of relevance and privilege. It is otherwise in the case of search and seizure under a warrant. This indicates that it was unlikely that Parliament intended to import some limitation of the kind suggested into the authority given by a warrant granted under s. 10(b).
61 Practical considerations or operational realities may also be relevant where the issue is whether the search was carried out properly or was carried out reasonably (see Dunesky & Anor v Commonwealth of Australia & Ors [1996] 89 A Crim R 372; (1996) 33 ATR 491).
62 The generic description which may be adopted cannot be so general that it is effectively indistinguishable from using the statutory words. By reason of s 3LA(2), the order which the magistrate may grant is the order which has been the subject of the application under s 3LA(1).
63 It is true, as Mr Luppino submits, that the phrase "information or assistance that is reasonable and necessary" identifies the limits of the power of the magistrate to grant an order, but the fact that it performs this function does not of itself mean that the statutory words cannot be used to describe the information or assistance to be provided in a particular case.
64 The application for an order is made to a magistrate and the magistrate must be satisfied of certain matters before making an order under the section. At some point, on either of the competing constructions, a judicial officer may need to decide whether the specified person is being asked, or has been asked, to do something which falls within the statutory description. The alternatives appear to be that the magistrate decides the issue before the order is made or a Court is asked to decide the issue on an application for enforcement of the order or the hearing of a prosecution for an offence under s 3LA(5). Both are possible interpretations and, as the Commissioner pointed out, statutory obligations to act reasonably in matters otherwise treated as criminal conduct, are not unknown. However, Mr Luppino's construction operates in a logical way producing greater certainty and is a process that it might reasonably be presumed the legislature would have favoured.
65 Section 3LA(2) deals with the matters of which the magistrate must be satisfied before making an order. The primary judge referred to the matter in paragraph (2)(a) as the evidential requirement, the matter in paragraph 2(b) as the status requirement, and the matter in paragraph (2)(c) as the knowledge requirement. The terms of subs (2) provide some support for the construction advanced by Mr Luppino. There is a link between the knowledge requirement and the formulation of the information or assistance to be provided, although I accept that in a particular case the fact that a person has used a computer or data storage device may be sufficient to satisfy the knowledge requirement and yet say nothing in particular about the information or assistance which might be the subject of an order.
66 Section 3LA(4) deals with the situation where an order is obtained after seizure or removal of the computer or data storage device. On any view, it does not contain all of the requirements concerning the matters to be stated in an order. An order must self-evidently identify the specified person and, leaving aside precisely how the computer or data storage device is described (as to which see Ground 4), the computer or data storage device not on warrant premises must, in the ordinary case, be identified in some way.
67 Some of the requirements in s 3LA(4) seem more consistent with the construction advanced by Mr Luppino than that advanced by the Commissioner. I put it in this way because the point is not a decisive one. It seems to me that the period and place requirements suggest the specified person will be aware from the order itself by what time and where the information or assistance is to be provided.
68 Section 3LA(5) is not inconsistent with either construction advanced. It perhaps favours the construction advanced by Mr Luppino as part of a point made in relation to s 3LA(1) (at [64]). It is perhaps more consistent with the terms of the subsection that the failure to comply it is referring to is a failure to comply with the order itself and not the order supplemented, in practical terms, by the particular requirements and directions of a constable given outside the order.
69 I do not consider that the extrinsic material which the Commissioner relied upon supports his construction (see [18]-[19] above). In my opinion, the use of the statutory words does not mean anything in terms of this particular argument. The statements are statements of a general description of the power and are not directed to the content of orders made under s 3LA.
70 In conclusion, in my opinion, on the proper construction of s 3LA, an order made under the section must describe the information or assistance to be provided, at least by reference to the type of information or assistance to be provided. It is not sufficient to describe the information or assistance by reference to the statutory words in s 3LA(1).
71 The Commissioner's alternative submission is based on the assumption that his principal submission of no breach or contravention fails. In other words, the assumption for the purposes of the alternative submission is that s 3LA requires the order to specify the information or assistance to be provided and it is not sufficient to use in the order the statutory words in s 3LA(1). The alternative submission advanced by the Commissioner is that even if this is the case, the failure to comply with s 3LA in this respect did not result in invalidity.
72 The starting point for an analysis of the circumstances in which the breach or contravention of a statutory provision results in invalidity is the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky). The key passage in the reasons of McHugh, Kirby, Gummow and Hayne JJ is as follows (at [92] and [93]):
92 Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said "a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale, Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been "substantial compliance" with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: "substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not."
93 In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".
(Citations omitted.)
73 Their Honours also made the point that there is no decisive rule that can be applied and that there is not even a ranking of relevant factors or categories to give guidance on the issue (at [91]).
74 Their Honours identified four matters as being relevant to the issue of whether the act done in breach of the provision led to invalidity. Those matters were as follows: (1) the relevant statutory obligation under consideration regulated the exercise of a power already conferred rather than operating as an essential preliminary to the exercise of functions; (2) some of the obligations imposed by the section breached involved matters which were not of a rule like quality which could be easily identified and applied; (3) the relevant statutory provision was such that the likelihood of breach was not fanciful; and (4) the extent of inconvenience to members of the public if the act is held to be invalid is, and always has been, an important consideration.
75 In the case cited in Project Blue Sky, that is, Tasker v Fullwood [1978] 1 NSWLR 20, the Court of Appeal of New South Wales said (at 23-24):
From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statue. Little, if any, assistance, will be derived from the terms of other statues or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty. Ltd. case. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v. Beaumont. (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v. The Commonwealth. (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty. Ltd. case. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v. The Commonwealth.
(Citations omitted.)
76 In this case, the Court of Appeal in deciding that a breach of the relevant statutory provision did not result in invalidity considered that four matters were relevant. They were as follows: (1) the relevant obligation was not expressed to be an essential precondition to the Court's jurisdiction; (2) the statute did not contain a provision to the effect that, in the absence of compliance, the application should not be granted; (3) the particular obligation did not in that case admit of substantial compliance and there was either strict compliance or non-compliance; and (4) the Court posed the relevant question in terms of whether the requirement in issue is "so cardinal to the object of the statute as to disclose an intention that its complete non-observance should invalidate any order made by the Court?" (at 24).
77 An example of the application of the correct approach is Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 (SZIZO). In that case, six applicants who had had their applications for visas refused applied for review of the decisions by the Refugee Review Tribunal. All of them appeared before the Tribunal. Evidence was given and submissions made. The Tribunal affirmed the decisions. The applicants submitted that the Tribunal had failed to give notice of the hearing to their authorised recipient and that the Tribunal's decision was invalid. The High Court rejected the submission because the provisions were directed to ensuring natural justice was accorded and there had been no denial of natural justice in the circumstances (at [35]-[36]). The plurality said that invalidity did not result from the breach because, despite the breach, the purpose of the statutory scheme of which the provision formed a part had been achieved.
78 The Commissioner submits that it was and is perfectly clear to everyone, including Mr Luppino, that one piece of information the Commissioner sought from Mr Luppino was the Knox password.
79 Mr Luppino submits that the failure to comply in this case must result in invalidity because the order made was one that simply could not be made and further, the fact that the specified person might infer that what was being sought was the provision of a PIN was irrelevant. He referred to Smethurst in which Kiefel CJ, Bell and Keane JJ said (at [29]):
It follows logically from the underlying rationale of the condition that the offence be stated that the test of sufficient particularity is an objective one, which has regard to the content of the warrant. It can be no answer to a challenge to the validity of a warrant on the ground that it fails clearly to state the nature of the offence in question to say that the persons whose premises are to be searched have some ancillary information as to the offence to which the warrant is intended to relate.
(Citation omitted.)
80 Mr Luppino also points to the circumstance that, as he put it, deficiency in this case relates to the very nature of the Section 3LA Order and not a procedural step in the making of the order.
81 In my opinion, a failure to identify, at least at a general or generic level, the type of information or assistance to be provided renders an order purportedly made under s 3LA invalid. I say that for the following reasons. First, if, as I have held, there must be a specification in the sense I have described of the information or assistance to be provided in the Section 3LA Order, then it follows that the magistrate must have turned his or her mind to the issue. The fact that the magistrate may not have done so in this case bears on the very exercise of the power. Secondly, and relatedly, the section is about the provision of information or assistance in the sense that that is the central purpose of the section and the central purpose of an order made under the section. Thirdly, the consequences for the specified person of non-compliance by him or her are very significant in that they commit an offence punishable by imprisonment. Finally, this is a case where there was a complete failure to comply with the statutory requirement, even accepting (as I do) that it was a requirement that went no further than describing the information or assistance in general or generic terms.
82 In the circumstances, I reject Ground 2 of the appeal and that has the consequence that the appeal against the primary judge's order must be rejected.