Luppino v Fisher was an interlocutory application decided in late 2018 by White J.
The Plaintiff in the substantive matter was seeking judicial review of an order compelling him to provide passwords for his phone and any installed apps to the AFP, where that phone had been seized pursuant to a warrant. The contested order was made pursuant to the Commonwealth Crimes Act s 3LA which allows for a police officer to obtain a warrant requiring a specified person to assist them in accessing a computer or data storage device.
The interlocutory application was bought by the AFP and sought to compel the Plaintiff to provide the passwords ‘confidentially’ – that is in a sealed envelope, secured in a safe, and indicating that it is not to be opened without an order from a judge, pending the outcome of the application for judicial review (Order 1).
The AFP also sought an order requiring the Plaintiff to ‘to file an affidavit deposing to his compliance with order 1, and specifically attesting to the fact that he disclosed, in the material contained in the sealed envelope, all passwords of which he is aware that are required to access any application on the device’ (Order 2)
The AFP’s application was bought under the Federal Court Act s 23 and the AD(JR) Act s 16(1)(d). S 23 provides that:
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.
(s 16(1)(d) provides for a similar discretion.)
White J declined to make the proposed orders, finding that both contravened the privilege against self incrimination.
First, and in contradistinction to s 3LA, it was accepted that neither provision was a statutory abrogation of the privilege. His Honour emphasised the centrality of the privilege in criminal proceedings, citing passages from Reid v Howard and Sorby v The Commonwealth of Australia.
White J found that Order 1 infringed the privilege against self incrimination because
[t]he proposed order would require the plaintiff, if he is aware of the password or passwords in question, to record them … in a way in which that information would cease to be within his own control. […]
[T]he recording could be an interim step, which may lead to the further disclosure of the information in ways to which the plaintiff does not consent. In particular, the disclosure of the information without his consent could be used to implicate him in criminal offences. In my view, given the fundamental nature of the common law privilege against self-incrimination, that course would be inappropriate.
Interestingly, his Honour decided this without reference to the alleged serious offences that were the subject matter of the warrant. Instead it appears to be sufficient that a (court ordered) non-consensual disclosure could be used to implicate the accused in some other criminal behavior.
Order 2 – the requirement to depose compliance with Order 1- infringed the privileged because it would have been an admission that the Plaintiff had failed to comply with the order under s 3LA – and this is a criminal offence per s 3LA(5).
Lastly, his Honour did not find it necessary to decide whether the court lacked the power to make such an order, or whether it was a matter of discretion, in this case being exercised against the application.