This recent High Court case (decided 8 October 2025) involves a constitutional challenge arising from Operation Ironside, one of the largest law enforcement operations in Australian history.
Operation Ironside was conducted by the Australian Federal Police (AFP) between 2018 and 2021, utilising an encrypted messaging application called AN0M, which was secretly controlled by law enforcement having been created by the FBI. The AFP facilitated the distribution of phones with the AN0M app to alleged criminals, collecting approximately 28 million messages.
Without users’ knowledge or consent, communications were copied and transmitted to google servers, accessible by the AFP.
This High Court case has significant implications for approximately 390 people charged with over 2,000 crimes as a result of Operation Ironside, as it confirms that the evidence obtained via the AN0M platform can be used in criminal prosecutions.
The Challenge
The appellants in this matter sought to exclude evidence from the AN0M communications, arguing that the AFP’s conduct involved unlawful interception of communications in contravention of section 7(1) of the Telecommunications (Interception and Access) Act 1979 (Cth), which would make the evidence inadmissible.
Both the trial judge and the South Australian Court of Appeal rejected this argument, finding that the operation, which intercepted and captured messages, did not involve “interception” as defined under the Act.
After being granted special leave to appeal to the High Court of Australia, the Commonwealth Parliament THEN passed the Surveillance Legislation (Confirmation of Application) Act 2024, which clarified retrospectively that information obtained under specified Operation Ironside warrants was lawfully obtained and not obtained through interception.
The appellants then challenged the validity of this new Act, arguing it was an impermissible exercise of judicial power by parliament and improperly interfered with the institutional integrity of courts.
The Court rejected the argument that parliament had impermissibly exercised judicial power, finding that the Act operated as a legitimate amendment to evidentiary rules rather than an improper direction to courts about how to decide cases.
The Constitutional Concerns
The Surveillance Legislation (Confirmation of Application) Act 2024 was passed after the High Court had already granted special leave to appeal. This means, extraordinarily, parliament intervened to change the law while the case was already before the High Court.
It cannot be ignored that parliament legislated specifically to prevent the High Court from potentially finding against the Commonwealth and invalidating evidence in 390 prosecutions involving over 2,000 charges.
The significant danger is now that if parliament can retrospectively change the legal framework whenever major government operations are at risk of being found unlawful, what is now constraining executive power and upholding the integrity of the principle of the separation of powers?
In this case, the chronology of events was as follows:
- Government conducts surveillance/telephone intercept operation;
- Courts begin questioning its legality;
- Case reaches High Court;
- Parliament passes law declaring it was lawful all along.
This pattern could theoretically be repeated for any government action facing scrutiny from the courts.
Unlike technical amendments to clarify minor legislative ambiguities, this affected one of Australia’s most significant law enforcement operations, involving hundreds of defendants. The question was regarding the fundamental privacy and surveillance law principles, in circumstances where the court were already actively considering excluding that evidence.
The Government’s argument
The government framed the new legislation as “clarification” that information obtained under specified Operation Ironside warrants was lawfully obtained. It seems inescapable that this was really an attempt to validate conduct that was legally questionable and was in fact was before the courts for determination.
One cannot help but consider the government was concerned about the legality, or otherwise, the actual conduct of police.
The High Court’s Reasoning
The Court confirmed the Act as valid by characterising the laws as a legitimate amendment to evidentiary rules rather than an impermissible direction to courts.
Even if technically within parliament’s power, the introduction of legislation in this manner seemingly undermines the institutional integrity of courts and the separation of powers.
The dangerousness of a precedent such as this lies in what future governments might do, as the potential ramifications are vast.
For instance, if law enforcement conducts questionable surveillance or other investigatory techniques and courts challenge it, parliament can now retrospectively validate those actions.
Another example is if courts find government decisions were made without proper statutory authority, Parliament could retrospectively grant that authority.
More generally, whenever evidence faces exclusion on grounds of legality, parliament could retrospectively change the legal framework to make it admissible.
The potential flow-on effect is that courts might hesitate to make robust findings about government illegality if they anticipate Parliament will simply override them.
Whilst each instance might be individually justifiable, the cumulative effects could be:
- Government’s increasingly emboldened that unlawful conduct can be retrospectively fixed;
- Lesser deterrent effect of judicial reviews and lessening of the discretion of the judiciary;
- Erosion of the principle that governments must act within existing legal constraints;
- Reduced public confidence in both parliamentary and judicial institutions.
CONCLUSION
Whilst respectful of the High Court of Australia, there are concerns regarding the practical effect of a decision such as this. In short, parliament prevented the High Court from potentially finding that the highly touted “Operation Ironside” involved unlawful conduct by the AFP. This matter also suggests that statutory protections against unlawful surveillance may be weaker than we thought, since parliament can retrospectively validate conduct that appeared to violate them.
Defendants in criminal proceedings cannot lobby parliament to retrospectively change laws in their favour, but the prosecution (as an arm of the executive/government) now effectively can. This is a particularly troubling aspect of the government’s actions in this matter.
Future governments can now point to this case as authority that parliament can retrospectively validate evidence obtained through questionable means, so long as it’s framed as “clarification” of evidentiary rules rather than labelling it as a direction to courts.
Whilst the High Court’s decision may be technically defensible under existing constitutional doctrine, it represents a concerning development in the balance between legislative, executive and judicial power. Whether this precedent becomes truly dangerous depends on whether future parliaments exercise restraint or whether they use this as a permission structure for intervention in litigation that may be unfavourable to government interests.
Importantly, we still don’t know whether Operation Ironside actually involved unlawful interception under the original Act. The substantive constitutional and statutory interpretation questions were avoided rather than resolved.
Finally, whilst defendants in this situation may not attract public sympathy, given some of the serious allegations against them, the ramifications of police conduct are more wide ranging. The operation was not only evidence gathering, it served as an information gathering exercise regarding anyone and everyone that used any of these applications OR was spoken about it any conversation.
Possession and use of these applications/devices were not illegal.
