High Court Rules That Evidence Derived From ANOM Is Admissible

Click here to listen to the Audio

The High Court of Australia has delivered a landmark decision which makes clear that evidence covertly derived by way of software installed by government authorities into encrypted phones is admissible despite the absence of a surveillance device warrant.

The judgment highlights the deficiency in civil liberties in Australia - a nation whose constitution does not enshrine basic rights such as privacy, free speech and association, or protect against mass surveillance, or arbitrary searches or seizures.

What is ANOM, and how was it used?

The encrypted-messaging platform AN0M (also written "ANOM") was at the centre of an international law-enforcement sting involving the Australian Federal Police (AFP), the Federal Bureau of Investigation (FBI), and other global partners-under the operations known as Operation Ironside (Australia) / Operation Trojan Shield (international). The agencies covertly distributed modified phones with ANOM installed to alleged criminals between 2018 and 2021. The app was touted as a secure communication tool - but in fact every message was secretly duplicated and transmitted in real time to law-enforcement servers.

These messages included alleged discussions of serious criminal activity, including drug trafficking, weapons dealings, money laundering, and even murder plots. The operation culminated in massive, coordinated raids worldwide on 8 June 2021, resulting in hundreds of arrests.

As prosecutions unfolded, however, the admissibility of ANOM-derived communications was widely challenged. Defence lawyers argued that capturing and using the messages contravened the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act), meaning the evidence should be excluded.

Australia's Legal Framework for Electronic Surveillance - Key Statutes

To understand the legal contest around ANOM, it helps to know the main surveillance laws in Australia and their relation to "interception" (listening to or recording a communication in real-time while it passes through a telecommunications system) and "access to stored communications" (accessing communications that have been stored previously, such as emails or voicemails).

Telecommunications (Interception and Access) Act 1979 (TIA Act)

• The TIA Act prohibits the unauthorised interception of communications passing over a telecommunications system or unauthorised access to stored communications.
• "Intercepting" a communication generally means listening to or recording it as it passes through the system, without the sender's knowledge.
• The Act provides for a warrant regime: eligible national security or law-enforcement agencies can obtain interception warrants (e.g., for phone calls), issued by judicial or independent issuing authorities.
• Similarly, the Act allows for stored-communications warrants (e.g., to access emails, voicemail, stored messages) and authorisations to access telecommunications "data" (metadata, not content) under certain conditions.
• The Act has been amended over time - for example, by the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, which imposed obligations on carriers to retain certain telecommunications data (metadata) for a period, allowing authorised agencies to access it.

Other Key Statutes in the Electronic Surveillance Framework

Beyond the TIA Act, Australia's surveillance regime draws on multiple statutes, administered through the broader electronic surveillance framework maintained by the Attorney-General's Department and the Department of Home Affairs.

These include:

• Surveillance Devices Act 2004 (SD Act): governs the use of covert surveillance devices (e.g., listening devices, optical and tracking devices) by eligible agencies under warrant.
• Parts of the Australian Security Intelligence Organisation Act 1979 (ASIO Act): granting intelligence-gathering powers for national security purposes.
• Elements of the Telecommunications Act 1997 (especially Part 15): governing obligations on telecommunications carriers and prohibiting unauthorised disclosures by carriers of customer communications or information.
• Portions of the Crimes Act 1914 (and other relevant legislation) apply when offences involving interception, stored communications, or surveillance arise under Commonwealth law - for example, investigations into serious organised crime.

Together, these laws define when interception or access is lawful (i.e., via a warrant or authorised access) and impose criminal prohibitions on interception or access without lawful authorisation.

Emerging/Recent Amendments: Adapting to the Digital Era

The 2015 Data Retention amendment to the TIA Act strengthened metadata retention by carriers, reflecting the importance of metadata in modern investigations. This amendment remains highly relevant today, highlighted by recent controversies such as the widespread public debate over data privacy and security following high-profile metadata breaches and leaks. These incidents underscore ongoing concerns about personal data vulnerabilities and the need for stringent oversight and safeguards in metadata handling.

In response to evolving digital threats, the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Identify and Disrupt Act) introduced new powers for the Australian Criminal Intelligence Commission (ACIC) and AFP: network-activity warrants,account-takeover warrants, and data-disruption warrants - intended to allow disruption of serious online criminal activity, including cyber-enabled crime facilitated by encryption or anonymising technologies.

Recognising that the patchwork of overlapping laws (TIA Act, SD Act, ASIO Act, etc.) has become increasingly complex and technology-dependent, the government has committed to a long-term reform aimed at simplifying and streamlining the legal landscape.

• Under the proposed reform, the multiple existing laws would be replaced by a single, technology-neutral statute to better reflect 21st-century communications. This unified statute seeks to modernise the legal framework by consolidating authority and establishing clearer oversight mechanisms.
• It aims to enhance transparency, streamline compliance for carriers, and provide a comprehensive set of guidelines for law enforcement and oversight bodies.
• The statute is also expected to address evolving communication technologies and ensure the legal framework remains adaptable and effective in addressing future challenges.

Yet, this promise of reform contrasts sharply with the existing legislative framework marked by disjointed powers and fragmented oversight. Imagining a future where a unified legal structure exists invites reflection: could this envisioned future bring clarity and efficiency, or might it repeat past legislative pitfalls? Such considerations heighten the anticipation for reform analysis, emphasising the stakes at play should the reform succeed or falter.

According to the review documents, the new law would aim to modernise and simplify the legal regime, ensure clearer oversight and safeguards, and better define the powers of agencies, carriers, and oversight bodies in an era of rapid technological change.

The Legal Challenge and the High Court Decision

At the heart of the dispute was whether the duplicating and covert forwarding of ANOM messages constituted "interception" under the TIA Act; if so, the messages would be unlawful and inadmissible.

In response to the legal uncertainty, the Commonwealth enacted the Surveillance Legislation (Confirmation of Application) Act 2024 (Cth). The Act retrospectively confirmed that communications and records acquired under specific warrants in connection with Operation Ironside "were not intercepted while passing over a telecommunications system."

This retrospective legislation was necessary to address a legal challenge regarding the interpretation of the TIA Act, namely, whether the covert collection of ANOM messages equated to unlawful interception. By affirming the legality of the warrants and thus the evidence obtained, the Act aimed to resolve any constitutional ambiguity and ensure that the prosecutions based on ANOM operations could proceed without being derailed by claims of inadmissibility.

In its decision delivered in October 2025 in CD & Anor v. The Commonwealth of Australia [2025] HCA 37, the High Court of Australia unanimously upheld the validity of the Confirmation Act and ruled that the ANOM-derived evidence was admissible.

The Court rejected arguments that the legislation improperly intruded on judicial power or undermined the institutional integrity of the courts. It concluded the retrospective confirmation of the warrants did not unconstitutionally usurp the courts' fact-finding role.

As a result, prosecutions based substantially or entirely on ANOM-derived communications - including major cases against alleged members of criminal organisations - can now proceed.

Why This Matters: Legal Precedent, Policing, and Surveillance Ramifications

• Legal clarity and precedent: The High Court's ruling sets a binding precedent that evidence derived from a law-enforcement-owned and-operated platform such as ANOM - even if it was used deceptively - is not automatically inadmissible. That includes material obtained via covert duplication and forwarding, provided proper warrants were obtained. This outcome affirms the approach already taken by lower courts (e.g., the Court of Appeal of South Australia).
• Policing and organised crime prosecutions: The ruling effectively unfreezes a vast number of prosecutions under Operation Ironside, enabling law enforcement to rely on the intercepted communications as central evidence. Prosecutors have welcomed the decision, and some accused have already pleaded guilty in its wake.
• Surveillance and civil liberties concerns: While the decision offers a win for criminal justice and disruption of organised crime, it also raises serious questions about the reach of covert surveillance and retrospective legal authorisation. The broader surveillance-law context and the potential for 'mass surveillance' enabled by laws and methods used in ANOM have long been controversial.
  • Critics say this expands state power and surveillance capacity in ways that may affect the population at large. A comparative look at jurisdictions like the U.S. and the U.K. can deepen this discussion. In the U.S., the use of law enforcement honeypots has been contentious, with debates centred on entrapment and privacy concerns under the Fourth Amendment.
  • Similarly, in the U.K., the Regulation of Investigatory Powers Act (RIPA) governs surveillance and has faced scrutiny over potential overreach. These international perspectives highlight the global struggle to balance effective policing with the protection of civil liberties, positioning Australia within a broader legal trend towards increasing surveillance powers under strict judicial oversight.
• Adaptation of law to technology: The judgement reflects the Court's willingness to adapt traditional legal frameworks, such as the TIA Act, to novel technological methods of communication and evidence-gathering, subject to appropriate legislative sanction. However, this adaptability also raises ethical concerns regarding the retroactive validation of potentially unlawful actions. The crucial question arises: does such legislative retroactivity undermine justice by masking previous legal shortcomings, or does it provide necessary flexibility in the face of rapid technological advancements? As law enforcement evolves with technology, the law may follow, sometimes retrospectively, but the implications of these adaptations require careful ethical consideration.

Broader Reflections - What Some Defence-Side Commentators Warned

As early as when ANOM was first revealed, commentators and defence-oriented legal voices cautioned that sting operations may hamper broader liberties:

• The analysis of ANOM's use by a law-enforcement agency shows a sharp contrast between how such tools are marketed to criminals (as "secure" encrypted phones) and their real function as Trojan-horse surveillance.
• The same legal infrastructure (covert warrants, retrospective confirmation) could be repurposed in the future, expanding the capacity for wide-ranging surveillance, not just targeting organised crime. For example, these tools could potentially be used to monitor public gatherings or protests under the guise of maintaining public order. Such applications could lead to concerns about infringing on the rights of individuals to assemble and express themselves freely, highlighting the risks associated with scope creep in surveillance practices.
• Critics argue that such broad surveillance powers risk eroding civil liberties, especially if oversight, transparency, and safeguards are insufficient.

How This Links to Earlier Warnings from Legal Commentators

Our law firm had already cautioned that the use of ANOM-while effective in disrupting alleged criminal networks-raised concerns about growing mass-surveillance powers and their potential long-term implications.

Similarly, other legal entities argued that massive drug busts and arrests enabled by ANOM - Operation Ironside-might not produce lasting meaningful reductions in drug supply or organised crime, even if they appear headline-grabbing.

Thus, the High Court's ruling does not simply close a legal door-it also reopens a broader debate about surveillance, privacy, and what kind of tools a modern criminal justice system should be permitted to use.

A landmark decision

The High Court's October 2025 decision in CD & Anor v The Commonwealth of Australia marks a landmark moment for Australian criminal law: evidence from ANOM-a covertly controlled encrypted-app sting-is now definitively admissible. For prosecutors, it clears the path for a wave of prosecutions under Operation Ironside. For civil-liberties advocates and privacy watchers, it signals that the courts are willing to accept - and retrospectively validate - innovative and invasive surveillance technologies, provided the legislation supports them.

Whether this decision will remain confined to exceptional cases like ANOM or become a template for broader digital surveillance and data-gathering methods remains a live and contested question. But the ruling already demonstrates that in Australia's legal system, the balance between state power and individual rights is shifting and that law, technology, and policing are increasingly intertwined. Moving forward, lawmakers should prioritise reforming oversight mechanisms to ensure transparency and accountability in surveillance practices. This focus could set a foundation for safeguarding civil liberties while adapting to technological advancements.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.