Australian Crime Commission Act 2002

The Act defines key concepts in section 4(1). A special ACC operation is an intelligence operation authorised by the Board under section 7C(2). A special ACC investigation is an investigation relating to a federally relevant crime authorised by the Board under section 7C(3). A special ACC operation or investigation excludes an integrity operation. A relevant crime is a serious and organised crime or Indigenous violence or child abuse that may have been, may be being or may in future be committed and that is an offence against a law of the Commonwealth, a State or a Territory. Section 4(2) expands this where the head of a special ACC operation or investigation suspects an incidental offence is connected with a relevant crime. A federally relevant crime is a relevant crime that is an offence against a law of the Commonwealth or a Territory or an offence against a law of a State that has a federal aspect under section 4A.

Serious and organised crime involves two or more offenders and substantial planning and organisation, ordinarily involving sophisticated methods, committed in conjunction with like offences, that is a serious offence within the meaning of the Proceeds of Crime Act 2002 or Crimes Act 1914 section 3C(1), an offence against specified Criminal Code subdivisions, a prescribed offence or an offence involving theft, fraud, tax evasion, money laundering, illegal drug dealings, violence, bribery or corruption of officers, perverting the course of justice, cybercrime or other listed matters, punishable by imprisonment for three years or more or a serious offence. It excludes genuine industrial disputes unless part of other serious and organised crime and offences where the prosecution time limit has expired.

Examination material under section 4B(1) means evidence given by a person before an examiner at an examination, a document or thing produced at an examination, information that might enable the person to be identified or the fact that the person has given or may give evidence. It does not include material obtained otherwise than at an examination. The examinee is the person who gave evidence or produced material at the examination or the person for derivative material derived from that examination material under section 4B(3). Derivative material is any evidence, information, document or thing obtained directly or indirectly from examination material. Pre-charge, post-charge, pre-confiscation application and post-confiscation application are defined by reference to whether a related charge or confiscation proceeding against the examinee has commenced, is imminent or has been resolved. Imminent includes where the person is a protected suspect, under arrest but not yet charged or a person with authority has decided to commence but has not yet done so. Resolved means the later of withdrawal, dismissal, acquittal, sentencing or final dealing, expiry of the appeal period without appeal or final determination of any appeal, with later appeals restarting the period under section 4C.

A criminal intelligence assessment under section 53 is a written statement by the ACC expressing any recommendation, opinion or advice on, or otherwise referring to, whether it would be consistent with preventing the advancement of serious and organised crime for prescribed administrative action to be taken or not taken in respect of a person. An adverse criminal intelligence assessment under section 54 contains any opinion, advice, qualification or information prejudicial to the person's interests together with a recommendation that prescribed administrative action be taken or not taken, the implementation of which would be prejudicial. Prescribed administrative action under section 54A means the exercise of any power or performance of any function in relation to decisions under a law of a State or Territory about issuing, renewing, revoking, varying or suspending a firearms licence, or action relating to or affecting access by a person to information or a place controlled under the Aviation Transport Security Act 2004, the Maritime Transport and Offshore Facilities Security Act 2003 or a prescribed Act, or a person's ability to perform an activity in relation to a thing controlled under those Acts.

Serious and organised crime for Part III purposes under section 54B means a federal offence punishable by imprisonment for two years or more or prescribed by the regulations, that may have been, may be being or may in future be committed in circumstances involving two or more offenders, substantial planning or organisation and the use of sophisticated methods and techniques. National policing information under section 4 is information collected by the AFP, a State police force or a prescribed body, of a kind prescribed by regulations, excluding further ACC-derived material or analysis. Permissible purpose includes performing functions under sections 7A or 7C, preventing, detecting, investigating or prosecuting criminal offences or contraventions, threats to national security, serious threats to life, health or safety, enforcing proceeds of crime or unexplained wealth laws, protecting public revenue, developing policy, researching criminology or any other prescribed purpose.

A returnable item under section 4 is a thing seized under a section 22 warrant or a document or thing produced under a section 21A notice or at an examination. In contempt of the ACC has the meaning given by section 34A. Secrecy provision means a provision of a law of the Commonwealth, a State or a Territory that purports to prohibit communication, divulging or publication of information, production of documents or things. Official matter includes a determination under section 28(2), a special ACC operation or investigation, an examination or a court proceeding.

The Act affects the Australian Crime Commission, its CEO, examiners, members of staff and persons participating in special ACC operations or investigations. The Board consists of the AFP Commissioner as Chair, the Secretary of the Department, the Comptroller-General of Customs, the ASIC Chairperson, the Director-General of Security, the head of each State and Northern Territory police force, the ACT Chief Police Officer, the CEO and the Commissioner of Taxation under section 7B(2). The Inter-Governmental Committee consists of the Commonwealth Minister and a Minister from each participating State under section 8(1).

Individuals are affected when summoned to attend an examination under section 28, required to produce documents or things under section 21A or section 20, or subject to a search warrant under section 22. Persons who are or have been members or officers of the Tribunal or officers or employees of a Commonwealth agency given an adverse criminal intelligence assessment are affected by secrecy obligations under section 54M. Commonwealth agencies receiving adverse assessments must give written notice to the person under section 54E(1) within 14 days, subject to exceptions for firearms licence decisions under section 54E(3) or a Minister's certificate under section 54E(5).

Law enforcement agencies, including the AFP and State police forces, are affected through cooperation requirements under section 17 and receipt of evidence assembled under section 12(1). Foreign law enforcement agencies, intelligence agencies or security agencies may receive returnable items or ACC information under section 24AA(8) and section 59AA(1). Prescribed bodies corporate may receive ACC information under section 59AB(1) for permissible purposes if they undertake limited use and further disclosure and comply with conditions. Accredited bodies may receive nationally coordinated criminal history check information under section 59AAA if not contrary to law or Board conditions.

State and Territory agencies and officers are affected where State laws confer functions under section 55A(2), (4) or (5), subject to Board consent and constitutional limits under section 55A(7) and section 55C. Judges of the Federal Court or Federal Circuit and Family Court of Australia (Division 2) acting in a personal capacity may have duties, functions or powers conferred by State laws under section 55A(5B) and (5C). Persons subject to prescribed administrative action, such as applicants for firearms licences or persons seeking access to aviation or maritime security controlled information or places, are affected by criminal intelligence assessments.

The Minister, Finance Minister and Attorney-General are affected through reporting, direction and assistance provisions. The Ombudsman may receive complaints under section 21C(2). The Administrative Review Tribunal reviews adverse criminal intelligence assessments under section 54J(1), subject to exceptions for firearms licence decisions under section 54J(4).

The CEO must assemble admissible evidence of a Commonwealth, State or Territory offence obtained during a special ACC operation or investigation and give it to the relevant Attorney-General, law enforcement agency or authorised prosecutor under section 12(1), subject to any direction under section 25A(9) and compliance with sections 25B to 25G where the evidence is examination material or derivative material. The CEO may assemble and give admissible evidence for confiscation proceedings under section 12(1A), subject to the same limits under section 12(2). The CEO must keep the Minister informed of the ACC's conduct and comply with specific information requests under section 59(1), subject to prejudice to safety, reputation or law enforcement operations. The CEO must comply with Inter-Governmental Committee requests for information on special operations or investigations or general conduct reports under section 59, subject to the same prejudice limits.

An examiner must record reasons in writing at or before issuing a notice to produce under section 21A(2) or a summons under section 28(1A). An examiner must inform a witness of other persons present at an examination and give an opportunity to comment under section 25A(7). An examiner must direct that examination material must not be used or disclosed or may only be used or disclosed by specified persons in specified ways or on conditions under section 25A(9), and must do so if failure to do so might prejudice a person's safety or would reasonably be expected to prejudice the examinee's fair trial if charged with a related offence or the charge is imminent under section 25A(9A). The CEO or examiner may vary or revoke such a direction in writing, but not if the variation or revocation might prejudice safety or reasonably prejudice fair trial under section 25A(10) and (11).

A person is not excused from producing a document or thing or answering a question on the ground that it might tend to incriminate the person or make the person liable to a penalty under section 21E(1) and section 30(4). For an individual, the produced document or thing or answer is not admissible against that person in a criminal proceeding, a proceeding for imposition or recovery of a penalty or a confiscation proceeding under section 21E(2) and section 30(5), subject to exceptions for pre-commencement or non-imminent confiscation proceedings or proceedings about falsity of an answer or statement under section 21E(3) and section 30(5A). A legal practitioner may refuse to produce a document containing a privileged communication made by or to the practitioner in that capacity under section 21D(1) and section 30(3), unless the person to or by whom the communication was made agrees under section 21D(2).

A person complying with a notice to produce or summons is entitled to prescribed allowances for travelling and other expenses under section 21F and section 26. The Attorney-General may authorise legal or financial assistance for a person appearing at an examination or applying for review under the Administrative Decisions (Judicial Review) Act 1977 on hardship or special circumstances grounds under section 27. Board members are not liable for damages for good faith acts or omissions in performance or purported performance of conferred functions or powers under section 59B.

A Commonwealth agency must not take, refuse to take or refrain from taking prescribed administrative action on the basis of any communication by the ACC not amounting to a criminal intelligence assessment under section 54F. The ACC must make a non-adverse assessment if the person is not identified in a search of intelligence held by the ACC conducted in accordance with CEO instructions under section 54C(6). The CEO must take reasonable steps to ensure computer program actions under section 54G are actions the ACC could validly take under section 54H, though failure does not affect validity.

Failure to comply with a notice to produce under section 21A(1) is an offence punishable by imprisonment for five years or 200 penalty units or both under section 21A(4). Failure to comply with a requirement under section 20 is an offence punishable by imprisonment for six months or 10 penalty units under section 20(4). Failure to attend an examination, answer a question or produce a document or thing when summoned under section 28 is an indictable offence punishable by imprisonment for five years or 200 penalty units or both under section 30(6), with summary jurisdiction possible under section 30(8).

Disclosure of the existence of a notice to produce or any information about it or any official matter connected with it while a notation under section 21B remains in force and within five years after service is an offence punishable by imprisonment for two years or 120 penalty units or both under section 21C(1). Similar disclosure offences apply to secondary disclosures under section 21C(3) and (5). Disclosure of the existence of a summons or any information about it or any official matter connected with it while a notation under section 29A remains in force and within five years after service is an offence under section 29B. Unauthorised recording, disclosure or use of information obtained in the course of duties by the CEO, Board members, staff or examiners is an offence under section 51(2). A person who is or has been a member or officer of the Tribunal or an officer or employee of a Commonwealth agency given an adverse criminal intelligence assessment commits an offence if they make a record of, disclose or use information obtained in the course of their functions that is, is contained in or relates to a criminal intelligence assessment, punishable by imprisonment for two years or 120 penalty units or both under section 54M(1), unless for Part III purposes or performance of their functions under section 54M(2).

Contempt of the ACC, including refusal to take an oath or make an affirmation, refusal to answer a question or produce a document or thing, disruption of an examination, threats or obstruction, may be referred by an examiner to the Federal Court or relevant Supreme Court for punishment as if it were contempt of that court under sections 34A to 34C. The court may detain the person pending hearing under section 34D. Obstruction or disruption of the ACC is an indictable offence punishable by imprisonment for five years or 200 penalty units or both under section 35. Giving false or misleading evidence at an examination is an indictable offence under section 33.

Unauthorised recording or disclosure of ACC information or breach of conditions under section 59AB is an offence punishable by imprisonment for two years or 120 penalty units or both under section 59AB(7) and (8), with a defence for legitimately public information under section 59AB(9). Reports setting out findings of offences or recommendations for prosecution must not be made public unless based on admissible evidence under section 59AD. The CEO may delegate powers and functions, except section 47A or sections 54C(2) and 54D(3), to SES or acting SES staff under section 59A.

Enforcement includes arrest warrants for absconding or non-compliance under section 31. Issuing officers may order retention, forfeiture, sale or destruction of a returnable item if satisfied on reasonable grounds that return would likely result in use in a terrorist act, terrorism offence or serious offence under section 24AC(2) and (3). The Tribunal may order the Commonwealth to pay an applicant's reasonable costs if the applicant was successful or substantially successful on review of an adverse criminal intelligence assessment under section 54L(1).

The Act interacts with the Crimes Act 1914 through integrity operations under Parts IAB and IABA, search warrant provisions applied with modifications under sections 39D and 39H of the Australian Securities and Investments Commission Act 2001 for ASIC purposes, and definitions of terrorism offence and terrorist act. It interacts with the Proceeds of Crime Act 2002 through definitions of serious offence, confiscation proceeding and against for confiscation proceedings, and provisions for assembly and giving of evidence for confiscation proceedings under section 12(1A) and use of examination and derivative material under section 25H.

The Act interacts with the Telecommunications (Interception and Access) Act 1979 through secrecy carve-outs in sections 19A(5) and 20(4) for provisions in Schedule 1 or clause 152 of Schedule 1, and definitions of relevant proceeding under section 6L for purposes including prosecutions for prescribed offences and confiscation or forfeiture proceedings. It interacts with the Administrative Decisions (Judicial Review) Act 1977 through modified time limits for applications for review under section 57, requiring lodgement within five days after the applicant becomes aware or a further period allowed in special circumstances.

The Act interacts with State and Territory laws through section 55A, which gives legislative consent for conferral of duties, functions or powers on the ACC, Inter-Governmental Committee, Board, CEO, examiners, staff or Federal Court or Federal Circuit and Family Court of Australia (Division 2) judges in a personal capacity for investigations or intelligence operations relating to State offences or national policing information. State laws may confer such functions of the same kind as under this Act or specified in regulations, subject to Board consent under section 55A(3) and (5A) and constitutional limits under section 55A(7) and section 55C. The Act does not exclude or limit consistent State laws capable of concurrent operation under section 55A(8) and does not prevent concurrent duties, functions or powers for federally relevant crimes under section 55A(9). Arrangements under section 20A between the Commonwealth Minister and a State Minister govern service of requests or requirements on State agencies and specify applicable secrecy provisions.

The Act interacts with the Privacy Act 1988 through restrictions on credit reporting body notes about disclosures until a notation under section 21B is cancelled under section 21B(8). It interacts with the Taxation Administration Act 1953 through taxation secrecy provisions that limit compliance with requests or requirements under sections 19A(5) and 20(4). It interacts with the Australian Human Rights Commission Act 1986 through functions of the Commission that may overlap with ACC functions in limited respects. The Act interacts with the Office of National Intelligence Act 2018 through disclosure of ACC information to ONI under section 59AA(2B) for ONI functions under section 7 of that Act.

The Act interacts with the Administrative Review Tribunal Act through review of adverse criminal intelligence assessments under section 54J, with the Tribunal able to order costs under section 54L and with section 276 of the ART Act dealing with disclosure by Tribunal members and officers. Section 51 of this Act also deals with secrecy for the CEO, Board members, ACC staff and examiners. The Act preserves other Commonwealth laws authorising use or making available of documents or things under section 24AA(7).

The Act includes provisions for independent review of its operation every five years from the 2010 amendments or parliamentary committee review under section 61A. This ensures ongoing assessment of the framework for special ACC operations and investigations, examination powers and criminal intelligence assessments. The inclusion of national policing information functions under section 7A(fa) and related Board functions under section 7C(1)(aa), (ga) to (gd) reflects expansion to support nationally coordinated criminal history checks and information systems, with charges under the Australian Crime Commission (National Policing Information Charges) Act 2016 recoverable under section 15A.

Part III provisions for criminal intelligence assessments were added to support background checks for firearms licences and aviation and maritime security, with the CEO able to determine matters to be taken into account by legislative instrument under section 54C(2) after consulting the Minister. Automation of non-adverse assessments under section 54G allows computer programs under CEO oversight, with safeguards in section 54H requiring reasonable steps to ensure validity. Provisions for disclosure to accredited bodies under section 59AAA and to prescribed body corporates under section 59AB(1) with undertakings on limited use and conditions were introduced to facilitate information sharing while protecting against prejudice to safety, fair trial or law enforcement interests.

Amendments to examination and derivative material rules in sections 25B to 25H address pre-charge and post-charge contexts, allowing disclosure to prosecutors in the interests of justice under section 25E while preserving use immunity and court powers to ensure fair trials. Section 59AC subjects disclosures under sections 59, 59AA and 59AB to examination confidentiality directions and sections 25B to 25H. Provisions for NACC disclosures as exceptions to disclosure offences under section 21C(2) reflect integration with the National Anti-Corruption Commission framework. The repeal of the National Crimes Commission Act 1982 under section 3 and transitional provisions under section 55D ensure continuity of functions from the former National Crime Authority.

The High Court considered the Act in Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53, addressing sections 7C, 46A and Part II Division 2 in the context of examinations and derivative material. Hogan v Australian Crime Commission [2010] HCA 21 examined aspects of the Act including references to MM v Australian Crime Commission (2007) 244 ALR 452 at 459 and P v Australian Crime Commission (2008) 250 ALR 66 at 79, concerning information handling and assessments. Lee v New South Wales Crime Commission [2013] HCA 39 considered the Act in relation to confiscation and examination powers. D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 referenced section 59B on immunity for Board members.

Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41 referenced the Act in section 9 in the context of non-compellable powers and examples of provisions allowing ministerial or executive discretion. These cases highlight issues around the scope of Board determinations under section 7C(2) and (3), the use of examination material in subsequent proceedings, and the balance between coercive powers and fair trial rights. Section 16 limits challenges to Board determinations on validity grounds except in proceedings by the Commonwealth or a State Attorney-General. Section 25E preserves court powers to ensure fair trials despite disclosure of examination or derivative material, and provides that a person's trial is not unfair merely because they were an examinee.

Controversies arise from the breadth of secrecy notations under sections 21B and 29A, which can prohibit disclosure for up to five years, and the limited exceptions for legal advice or Ombudsman complaints. The constitutional limits in sections 55A(7) and 55C prevent conferral of duties contravening doctrines restricting duties on Commonwealth authorities or judges of courts created by Parliament. The requirement for Board consent before ACC action under State laws under section 55A(3) and (5A) creates operational dependencies. The Tribunal's review of adverse criminal intelligence assessments under section 54J is excluded for firearms licence decisions unless prescribed by regulation under section 54J(4).

Board determinations under section 7C(2) or (3) cannot be challenged on the ground that they were not lawfully made except in proceedings instituted by the Commonwealth or a State Attorney-General under section 16. This restricts judicial review for affected persons. Notations prohibiting disclosure under section 21B(2) must be included if failure to do so would reasonably be expected to prejudice safety, reputation or fair trial, and the notation remains in force until the ACC concludes the operation or investigation and all resulting criminal proceedings have commenced under section 21B(6). Failure to include a notation does not affect validity of the notice under section 21A(5), but disclosure offences still apply if a notation is present.

Use immunity under section 21E(2) and section 30(5) applies only to the individual examinee and does not prevent derivative use or admissibility in confiscation proceedings if the proceeding had not commenced and was not imminent at the time of production under section 21E(3). Self-incrimination does not excuse compliance, but the protection is lost in proceedings about falsity of an answer or statement. Legal professional privilege may be claimed by a practitioner under section 21D(1), but the practitioner must provide the name and address of the communicator if required, and production after client agreement does not waive the privilege under section 21D(4).

Returnable items must be returned when no longer required for authorised purposes under section 24AB(1), but the CEO need only take reasonable steps for documents if the ACC took possession under section 24AB(3). Retention, forfeiture or destruction orders under section 24AC(2) may be made if return risks use in terrorist acts, terrorism offences or serious offences, with interested persons entitled to appear and be heard under section 24AC(6). Adverse criminal intelligence assessments given to agencies must be notified to the person under section 54E(1), but no notice is required for firearms licence decisions unless prescribed by regulation under section 54E(3), and a Minister's certificate under section 54E(5) can withhold notice if essential to avoid prejudice to law enforcement or security interests.

State agency requests or requirements under sections 19A or 20 are invalid unless served in accordance with a gazetted, in-force arrangement under section 20A(11). The Act imposes no obligation to perform duties relating to non-federally relevant crimes or in contravention of constitutional limits under section 55C(1). Reports containing offence findings or prosecution recommendations must not be made public unless based on admissible evidence under section 59AD. Computer program actions for assessments under section 54G are treated as taken by the ACC, but the CEO must take reasonable steps to ensure validity under section 54H.

Lawyers advising persons summoned under section 28 or required to produce under section 21A should ensure the client obtains legal representation at the examination under section 25A(2) and seek a direction under section 25A(9) limiting use or disclosure of examination material if safety or fair trial prejudice is reasonably expected. Claim use immunity under section 30(4) when giving evidence or producing material, and seek court orders for disclosure of directed material in the interests of justice under section 25E(1) if required for defence preparation. Monitor for notations under section 21B or 29A and limit disclosures to permitted exceptions such as legal advice or Ombudsman complaints under section 21C(2).

Agencies receiving requests under section 19A or requirements under section 20 should confirm compliance is permitted under prescribed secrecy provisions or arrangements under section 20A, and ensure any State agency involvement follows a gazetted arrangement. Commonwealth agencies receiving adverse criminal intelligence assessments must provide written notice to the person within 14 days under section 54E(1), including the statement of grounds excluding certified information, and advise of Tribunal review rights under section 54J, unless a Minister's certificate or firearms exception applies.

The ACC and Board should ensure determinations under section 7C(2) or (3) set out purposes to the extent reasonably appropriate under section 7C(4C) and are provided to the Inter-Governmental Committee within seven days under section 7C(5). The CEO should assemble and provide evidence under section 12(1) only after compliance with examination material rules in sections 25B to 25G and any direction under section 25A(9). Disclosures of ACC information under section 59AA or 59AB must be for permissible purposes, appropriate and relevant, not contrary to law, and subject to Board policy for national policing information, with conditions specified under section 59AB(3) including monitoring and non-disclosure requirements.

Persons subject to criminal intelligence assessments should apply for Tribunal review under section 54J(1) within applicable time limits if given notice, and provide evidence or submissions on matters occurring after any prior review under section 54K. Examiners and staff must record reasons for notices, summonses and directions, and provide records of examinations to the head of the operation or investigation under section 25A(15). All parties should maintain records of compliance with returnable item rules under sections 24AB to 24AC and ensure interested persons are notified before applications for retention or forfeiture orders under section 24AC(5). Independent reviews under section 61A should be monitored for recommendations on operational improvements.