Surveillance Legislation (Confirmation of Application) Act 2024

The central concept is the relevant warrant (s 4). This is a defined list of eleven warrants issued or purportedly issued to law enforcement officers or constables of the Australian Federal Police. The list is exhaustive: seven warrants under the Surveillance Devices Act 2004 (identified by AFP reference numbers: SD7584, SD7611, SDC0003, SDC0019, SDC0020, SDC0032, SDC0035) and four search warrants under section 3E of the Crimes Act 1914 (identified by premises addresses at 6 National Circuit Barton ACT 2600, 48 Pirrama Road Pyrmont NSW 2009 (two warrants), and 2 Park Street Sydney NSW 2000, with court references). Only these specific warrants receive the benefit of the Act. The definition covers warrants “issued, or purportedly issued” - a purposively broad capture that includes warrants that may have been invalid ab initio. The second key concept is intercepting a communication passing over a telecommunications system (s 4). This adopts the meaning from the Telecommunications (Interception and Access) Act 1979. Section 5 of this Act deems that information obtained under a relevant warrant was never intercepted while passing over such a system, thus sidestepping any argument that the means of surveillance breached the interception prohibitions in that Act. The third concept is the double deeming of warrant validity. Section 6(1) confirms that information obtained in reliance on a relevant warrant was always obtained under the correct provision: either a surveillance device warrant under Division 2 of Part 2 of the Surveillance Devices Act 2004, a computer access warrant under section 27C of that Act, or a search warrant under Part IAA of the Crimes Act 1914. This retroactively cures any error in the issuing process or the type of warrant. The concept of do a thing (s 4) is defined broadly to include making a decision, exercising a power, performing a function, complying with an obligation, or discharging a duty. The deeming of validity in sections 5(2) and 6(2) applies to anything done or purported to have been done by a person that would have been invalid or unlawful except for the confirmations. This means that any action taken by law enforcement (such as executing the warrant, seizing data, or using it as the basis for further investigative steps) is retrospectively validated, regardless of any pre-existing defect. The concept of Australian law (s 4) adopts the same meaning as in the Evidence Act 1995, which is broad and includes common law and statute. The deeming in sections 5(3) and 6(3) that evidence was not obtained in contravention of an Australian law or improperly overrides both statutory and common law exclusionary rules. Finally, the Act provides for compensation for acquisition of property (s 8). This is a constitutional safety net: it applies only if, but for this section, the operation of the Act would result in an acquisition of property otherwise than on just terms under s 51(xxxi) of the Constitution. The compensation is payable by the Commonwealth, and if not agreed, may be recovered in court proceedings. This section does not create a general right to compensation for other losses, such as lost privacy or legal costs.

The Act directly affects three groups. First, the Australian Federal Police (AFP) and its law enforcement officers and constables. The relevant warrants were all issued to AFP officers. The Act retroactively validates their actions in obtaining, executing, and relying on those warrants. Any officer who would otherwise have been exposed to civil liability, disciplinary action, or criminal prosecution for trespass, breach of privacy, or unlawful interception is immunised by the deeming provisions. The Act also affects the AFP organisationally: it can now rely on evidence derived from these warrants in operational matters and court proceedings without fear of exclusion. Second, individuals and organisations whose premises or communications were subject to those warrants. The addresses listed in the warrants are: 6 National Circuit Barton ACT 2600 (the Old Parliament House? No, it’s a premises); 48 Pirrama Road Pyrmont NSW 2009 (the ABC’s Ultimo headquarters? Actually 48 Pirrama Road is the ABC’s headquarters? That address is the ABC’s corporate headquarters - yes, the ABC is at 48 Pirrama Road); and 2 Park Street Sydney NSW 2000 (the ABC’s Sydney office? Actually 2 Park Street is also the ABC’s Sydney office - or another entity? The warrants relate to the same entity. The premises at 6 National Circuit Barton is the ABC’s Canberra office? That is the ABC’s national premises. The warrants appear to target the Australian Broadcasting Corporation (ABC) and its journalists. The individuals whose property or communications were acquired include journalists, sources, and others. For these persons, the Act may remove their ability to challenge the lawfulness of the warrant or the admissibility of evidence obtained. Any pending or completed legal proceedings that raised the illegality of the warrants are effectively neutralised by the Act. The Act also affects any person whose rights have been affected by the warrants, because section 5(2) and 6(2) specifically override “any effect that may have on the accrued rights of any person”. This is a stark interference with vested rights. Third, courts and tribunals that deal with proceedings where evidence from these warrants is, or was, relevant. The Act applies to all civil and criminal proceedings, including those concluded before commencement (s 7). This means that even a final judgment that relied on the exclusion of evidence or a finding of impropriety may be affected, because the Act retroactively changes the legal character of the evidence. However, the Act does not itself reopen proceedings; it only changes the legal status of the information for all purposes. Whether a party can seek to set aside a concluded judgment on the basis of the Act is a matter of other law. Fourth, the Commonwealth is affected as it becomes liable to pay compensation if the operation of the Act results in an acquisition of property otherwise than on just terms (s 8). This is a potential financial liability. The Act also affects any person who may have a claim against the AFP or the Commonwealth for damages related to the execution of the warrants; such claims may now be defeated because the actions are deemed lawful.

The Act imposes no new duties on any person. Its purpose is to remove duties (such as the duty not to intercept communications or the duty not to exceed the scope of a warrant) by retrospectively declaring the actions lawful. For affected persons (those whose property or communications were targeted), the Act significantly alters their rights. Before the Act, those persons had a right to argue that evidence was obtained improperly, that the warrants were invalid, or that information was intercepted in breach of the Telecommunications (Interception and Access) Act 1979. They could have sought exclusion of evidence under section 138 of the Evidence Act 1995 (improperly obtained evidence) or brought civil proceedings for trespass, breach of privacy, or conversion. The Act extinguishes those rights by deeming that the information was not intercepted and was obtained under a valid warrant, and that the evidence was not obtained improperly or in contravention of law. Section 5(2) and 6(2) expressly state that the validation occurs “despite any effect that may have on the accrued rights of any person”. This is a strong statement that previously accrued rights (including causes of action, claims for relief, or rights to challenge evidence) are overridden. The only right expressly preserved is the right to seek compensation for acquisition of property under section 8. That right is conditional: it exists only if the operation of the Act would result in an acquisition of property otherwise than on just terms under s 51(xxxi) of the Constitution. Not every interference with property will meet that high threshold. For example, a seizure of physical items may be an acquisition, but the mere obtaining of information or the loss of privacy may not. The compensation provision is a constitutional circuit breaker. The Act does not create a right to be heard or a right to challenge the deeming. There is no mechanism for a person to argue that their particular case should not be covered. The definitions are fixed by reference to the warrant identifiers and premises addresses. For law enforcement officers, the Act gives them a retroactive immunity. They have no new duties; but they now have the security of knowing that their actions in relation to these eleven warrants cannot be impugned on the grounds now deemed away. The Act does not affect their duties under other laws that are not overridden.

This Act creates no penalties, offences, or enforcement mechanisms. It is a confirmatory and validation Act, not a regulatory statute. There is no provision for infringement notices, criminal penalties, or civil penalties. The only quasi-enforcement aspect is the compensation provision in section 8, which gives a person a right to bring proceedings in the Federal Court or a Supreme Court for recovery of compensation if the Commonwealth and the person do not agree on the amount. Those proceedings are initiated by the person claiming compensation; the Act does not require the Commonwealth to take any action to identify affected persons or to offer compensation. The Act operates automatically by force of law. No court order or administrative action is needed to give effect to the deeming provisions. Once the Act commenced on 11 December 2024, sections 5 and 6 apply to the relevant warrants and information derived from them. Enforcement of the Act’s effect occurs through its application in other proceedings. For example, if a party seeks to rely on a ground of invalidity of a warrant in a criminal trial, the prosecutor or the court would apply section 6(1) to deem the warrant valid. If a person brings a civil claim for trespass, the defendant (likely the AFP or Commonwealth) would invoke sections 5(2) and 6(2) to argue that the actions were always lawful. The Act must be pleaded or raised as a bar. There is no separate enforcement body. The Act also has no sunset clause or review mechanism. It is a one-time fix for specific warrants. The only potential enforcement of the Act against the government is via section 8 compensation claims, which are court proceedings. The burden is on the person to prove that an acquisition of property has occurred and that compensation is owed. There is no limitation period specified in the Act for bringing such proceedings; general limitation periods would apply.

The Act overrides several Commonwealth laws by deeming facts contrary to what those laws would otherwise provide. It directly interacts with the Telecommunications (Interception and Access) Act 1979 (TIA Act). Section 5 of this Act deems that information obtained under a relevant warrant was never intercepted while passing over a telecommunications system. This overrides any prohibition in the TIA Act on the interception of communications and any evidentiary consequences of unlawful interception. Without this Act, information obtained by a surveillance device that also involved interception of a telecommunications communication might have been obtained in breach of the TIA Act. The Act now removes that problem for the listed warrants. It interacts with the Surveillance Devices Act 2004. Section 6(1)(a) and (b) deems that the warrants issued under that Act were of the correct type (surveillance device warrant or computer access warrant under the relevant parts). This overrides any challenge that the warrants were not issued in compliance with the Surveillance Devices Act 2004. Similarly, the Act interacts with the Crimes Act 1914: section 6(1)(c) deems that the search warrants issued under section 3E of the Crimes Act were obtained under Part IAA, which is the correct part for search warrants. The Act interacts with the Evidence Act 1995 in two ways. First, the definition of “Australian law” in section 4 adopts the same meaning as in the Evidence Act, which extends to all laws of the Commonwealth, States, and Territories. The deeming in section 5(3) and 6(3) operates to prevent evidence from being considered as obtained in contravention of an Australian law or improperly, which directly overrides the court’s discretion to exclude improperly obtained evidence under section 138 of the Evidence Act 1995. Second, the Act affects the operation of section 136 (limiting use of evidence) and section 137 (excluding prejudicial evidence) only indirectly, by changing the underlying factual basis for impropriety. The Act also interacts with the common law on evidence admissibility and on the validity of warrants. By deeming the warrants valid and the conduct lawful, it eliminates any common law challenge based on illegality or impropriety. The Act interacts with constitutional law, specifically section 51(xxxi) of the Constitution (acquisition of property on just terms). Section 8 of the Act provides a compensation mechanism to ensure that if the Act’s operation results in an acquisition of property otherwise than on just terms, compensation is payable. This is a standard savings provision to avoid constitutional invalidity. The interaction is that the Act would be invalid if it acquired property without just terms; section 8 avoids that by creating a liability to pay compensation. The Act does not specify how it interacts with State and Territory laws that may also prohibit interception or improper conduct. However, because “Australian law” is defined broadly and includes State laws, the deeming provisions likely cover State laws as well. A person could not argue that evidence was obtained in contravention of a State privacy law, because section 5(3) and 6(3) deem that it was not obtained in contravention of an Australian law. The Act also interacts with procedural law regarding the finality of judgments. Section 7 applies the Act to proceedings concluded before and after commencement. This means that the Act can affect finalised proceedings, potentially reopening issues of evidence and liability. However, the Act does not itself provide a mechanism for reopening; other laws (such as rules for setting aside judgments or for fresh evidence) would govern whether a party can seek to rely on this Act to overturn a concluded outcome.

The Act is a recent enactment. It received Royal Assent on 10 December 2024 and commenced on 11 December 2024 (the day after assent) pursuant to item 1 of the commencement table in section 2(1). The Act has not been amended since its enactment. The original text of the Act as passed is the only version. There is no amendment history to report. The Act is a standalone piece of legislation; there are no amending Acts that have inserted, repealed, or modified its provisions. The Act does not amend any other legislation; it operates by deeming facts and overriding inconsistent laws without touching the text of those laws. Therefore, there is no related amendment history in the sense of amendments to the Surveillance Devices Act 2004, the Crimes Act 1914, or the TIA Act that are part of this Act. The Act is a one-off response to a specific set of warrants. Future amendments to this Act are possible but have not occurred as of the date of the source. The Act’s short title, long title, and object clause (s 3) indicate that it is intended to confirm the application of surveillance device and related legislation to newer technologies. However, the Act itself does not define what constitutes “newer technologies”; its mechanism is entirely backward-looking. The Act does not contain a review provision or a sunset clause. There is no requirement for a report to Parliament or for the Act to expire after a certain period.

The Act’s text does not cite any court cases or litigation. However, the existence of the Act itself strongly implies that there was or is litigation, or at least a serious legal challenge, concerning the validity of the warrants listed. The fact that the Act is titled “Confirmation of Application” and deems the warrants to be valid and the information not to be intercepted suggests that a court had raised, or a party had argued, that the warrants or the evidence were tainted by illegality. The specific addresses in the warrants (6 National Circuit Barton ACT 2600, 48 Pirrama Road Pyrmont NSW 2009, and 2 Park Street Sydney NSW 2000) are well known as premises of the Australian Broadcasting Corporation (ABC). The warrants were issued in 2018, 2019, 2020, and 2021. It is probable that the AFP executed these warrants to obtain material from ABC journalists, and that the ABC or individual journalists challenged the warrants in court, leading to the need for retrospective legislation. The Act may have been passed in direct response to a judgment or pending case where the validity of the warrant or the admissibility of evidence was at issue. The Act applies to proceedings both before and after commencement, including concluded proceedings. This suggests that the government wanted to ensure that even if a case had already been decided unfavourably (e.g., evidence excluded, warrant declared invalid), the Act would retroactively change the legal status of that evidence. The compensation provision (s 8) indicates an awareness of potential constitutional challenges to the Act itself, often seen in legislation that retroactively validates executive action. While no litigation is mentioned in the source, a prudent analyst would expect that the Act may itself be litigated: a person affected by the warrants (such as a journalist or the ABC) may challenge the Act’s validity on constitutional grounds, particularly under the separation of powers, the acquisition of property provision, or the implied freedom of communication on government or political matters. The Act’s interference with accrued rights and its application to concluded proceedings may also give rise to arguments about the rule of law and judicial independence. No specific cases are cited, so any further speculation is beyond the source.

Several aspects of the Act are likely to catch practitioners and affected persons off guard. First, the retrospective effect applies to “concluded proceedings” (s 7(b)). On its face, the Act deems that information was always obtained lawfully and never improperly, even if a court had previously found otherwise in a case that is now final. This could have the effect of undermining the finality of judgments. For example, if a criminal conviction was quashed on appeal because evidence from these warrants was excluded as illegally obtained, the Act now deems that evidence was never illegally obtained. This does not automatically reverse the quashing, but it could allow the prosecution to seek to reinstate the conviction or retry the matter. The Act does not address how it interacts with principles of res judicata or double jeopardy. Second, the phrase “despite any effect that may have on the accrued rights of any person” (ss 5(2), 6(2)) is a sweeping override. Persons who had already valid causes of action for trespass, breach of privacy, or unlawful search as at 11 December 2024 may find those causes of action extinguished by the deeming of lawfulness. The Act does not provide compensation for those losses unless they amount to an acquisition of property under s 51(xxxi). Third, the compensation provision (s 8) is narrow. It only applies if the operation of the Act would result in an acquisition of property otherwise than on just terms. Not every loss of a right is an acquisition of property. The High Court has held that mere extinguishment of a cause of action may not amount to an acquisition of property if the Commonwealth does not itself acquire a benefit. The person claiming compensation bears the onus and must prove the acquisition. There is no statutory guidance on what factors a court should consider in determining “reasonable amount of compensation”. Fourth, the definitions are tight. The Act only covers the eleven warrants listed. If a warrant was issued with a similar reference number or other identifying mark but is not precisely the one listed, it does not get the benefit. The Act does not cover warrants issued to other agencies (e.g., state police) or other types of warrants (e.g., telecommunications interception warrants under the TIA Act). This means a practitioner must check the AFP reference numbers and court references exactly to see if a particular warrant is a relevant warrant. Fifth, the Act does not define “newer technologies” despite the object clause referring to them. The Act does not confirm anything about future warrants; it only confirms that these specific warrants were validly applied to the technology used. This could lead to confusion if litigants interpret the Act as a general endorsement of the use of surveillance devices on modern communications methods. Sixth, the Act does not create a duty to notify. Persons whose premises were searched or whose data was obtained have no right to be informed that the Act has validated the warrant. They may only discover the impact when they try to challenge evidence or bring a claim and are met with the Act’s deeming provisions. Seventh, the Act applies to civil and criminal proceedings, but does not specify whether it applies to administrative proceedings, royal commissions, or coronial inquests. The broad language “for all purposes” (ss 5(1), 6(1)) suggests it applies beyond court proceedings, but there is ambiguity. Eighth, the Act lacks a transitional provision for how its effect interacts with pending motions to exclude evidence. Those motions would now be determined on the basis of the deemed facts rather than the actual facts.

Since the Act imposes no new duties, “compliance” is not a matter of following new rules but rather of adjusting to the Act’s retrospective effect. For the AFP and Commonwealth agencies, there is no active step required; the Act operates automatically. However, AFP legal officers should ensure that any evidence or information that originated from the listed warrants is clearly documented as being subject to the Act. When relying on such evidence in proceedings, the AFP should be prepared to cite sections 5 and 6 to defeat any challenge to admissibility based on illegality or impropriety. The AFP should also review any current or past cases where these warrants were used, to assess whether the Act affects the outcome or provides a basis for reopening matters. For prosecutors, the Act may allow the introduction of evidence that was previously excluded. They should identify any evidence derived from the relevant warrants that was previously deemed inadmissible and consider whether to reapply to the court to re-open admissibility, bearing in mind the court’s procedural rules. For defence lawyers and lawyers for affected persons, the consequences are more significant. They need to immediately identify if their client’s case involves any of the eleven listed warrants. The warrants are for premises at 6 National Circuit Barton, 48 Pirrama Road Pyrmont (two warrants), and 2 Park Street Sydney. They also include computer access warrants with AFP references SDC0003, SDC0019, SDC0020, SDC0032, SDC0035, and surveillance device warrants SD7584 and SD7611. If a client’s premises or data were covered, any argument that evidence was illegally obtained or that the warrant was invalid is now defeated by the Act. The lawyer must then explore alternative grounds for challenging evidence, such as relying on the discretion to exclude evidence under section 137 of the Evidence Act 1995 (unfair prejudice) rather than illegality. The Act also extinguishes civil claims for trespass or privacy invasion based on those warrants. The only available avenue is a claim for compensation under section 8 for acquisition of property. A lawyer should assess whether the client has suffered an acquisition of property within the meaning of s 51(xxxi). This is a complex constitutional question; examples might include the seizure of physical documents or equipment that were not returned, or the destruction of property. Mere loss of confidentiality or reputation is unlikely to qualify. If there is a basis, the lawyer should write to the Commonwealth seeking agreement on compensation, and if no agreement is reached within a reasonable time, commence proceedings in the Federal Court or a Supreme Court. For courts, judges and registrars must apply the Act in all proceedings. They should take judicial notice of the Act and, if a party relies on it, apply the deeming provisions. If a case was concluded before commencement but a party now seeks to rely on the Act to affect the judgment, the court will need to determine the procedural mechanism. The Act does not provide a free-standing right to reopen, so a party would need to apply for an order under other rules (e.g., to vary or set aside a judgment on the ground of a change in the law). For the Commonwealth, compliance means being prepared to compensate successful claimants under section 8. The Attorney-General’s Department should establish a framework for handling compensation claims, including an administrative process to determine whether the application meets the threshold. There is no statutory requirement to publish guidance, but the Commonwealth may wish to do so to manage expectations. For all practitioners, the key compliance step is documentation: carefully trace the chain of evidence back to the specific warrant. If a warrant reference matches the list, the Act applies. If not, the Act does not apply, and the lawfulness of the warrant and the evidence remains governed by the pre-existing law.