Australian Crime Commission (Criminal Intelligence Assessment) Instrument 2023

This instrument, the Australian Crime Commission (Criminal Intelligence Assessment) Instrument 2023, prescribes how the Australian Criminal Intelligence Commission (ACIC) is to conduct criminal intelligence assessments in a specific class of cases. It is made under subsection 36B(2) of the Australian Crime Commission Act 2002 (the Act) (see s3) and was signed by the Acting Chief Executive Officer of the ACIC on 19 July 2023. The instrument commenced the day after it was registered (s2).

Mechanically, the instrument does the following:

• Identifies when it applies. It applies where the ACIC has intelligence or information that raises the question of whether a prescribed administrative action should be taken in respect of an assessment subject (s5). The instrument therefore governs the assessment process only when that threshold is reached.
• Lists the matters that must be taken into account in conducting a criminal intelligence assessment, including the nature of the relevant prescribed administrative action, relevant intelligence or information about whether the assessment subject may commit or assist in serious and organised crime, and the extent to which the assessment would prevent the use of aviation, maritime or offshore facilities in connection with serious crime (s6(1)(a)-(c)).
• States particular rules about the character and admissibility of information, including that intelligence should be directly, indirectly or circumstantially relevant to both the person and the use of transport or offshore facilities, and that frivolous or vexatious complaints and mere incidental or passive family associations are not sufficient to support a conclusion that the person may commit or assist in serious and organised crime (s6(2)(a)-(d)).
• Prescribes the manner in which the matters in s6 are to be taken into account. Assessors must have regard to procedural fairness and the reliability of information (s7(1)). Adverse criminal intelligence assessments must be made in good faith, without bias, and the reasons must be recorded in a statement of grounds (s7(2)(a)-(b)). The process is to be as fair and transparent as the protection of law enforcement and security interests allow, taking account of the protective elements of Division 2A of Part II of the Act (s7(2)(c)). Reliability considerations include credibility, authenticity, currency and corroboration of information (s7(3)(a)-(c)).
• Specifies material that must not be taken into account. Information that is subject to a legislative restriction on its use in a criminal intelligence assessment is excluded, and, for transport security cards, the access level signified by card colour or different card types must not be taken into account (s8(1)(a)-(b)). The instrument explains that this is because transport security cards are evidence of a successful background check regardless of colour or type (note to s8(1)(b)).
• Defines terms used in the instrument, including cross-references to the Act for concepts such as adverse criminal intelligence assessment, criminal intelligence assessment, prescribed administrative action and serious and organised crime. It also defines transport security card by reference to ASIC and MSIC as defined in other regulatory instruments (s4).

The instrument does not itself prescribe or authorise any particular prescribed administrative action. It sets process and evidentiary parameters for ACIC officers when forming criminal intelligence assessments that may support prescribed administrative action under the Act. It also records a consultation with the Minister prior to its making, as required by the enabling subsection (see introductory paragraph and s3).

The instrument is short and tightly focused. Its main legal and operational concepts, as expressed within the text, are the following.

• Criminal intelligence assessment and adverse criminal intelligence assessment. These phrases are used throughout and are defined to have the same meaning as in the Act (s4). The instrument therefore relies on the Act for the substantive legal meaning of those core concepts; the instrument sets procedural and evidentiary guides for those assessments rather than redefining them.
• Assessment subject. The person who is the subject of a criminal intelligence assessment is described as the assessment subject (s4). The instrument governs what matters the ACIC must consider about that person and what matters must be excluded.
• Prescribed administrative action. The instrument applies where intelligence raises the question of whether a prescribed administrative action should be taken in respect of the assessment subject (s5). The instrument does not itself describe or list prescribed administrative actions; it presumes the concept as defined in the Act.
• Serious and organised crime. The phrase is used in the core consideration of whether the assessment subject may commit or assist in such crime (s6(1)(b)). The instrument defers to the Act for the substantive meaning of the phrase (s4).
• Transport security card. The instrument defines transport security card to mean either an ASIC as defined in the Aviation Transport Security Regulations 2005, or an MSIC as defined in the Maritime Transport and Offshore Facilities Security Regulations 2003 (s4). The definition is operationally significant because s8(1)(b) addresses how information about such cards is to be used in assessments.
• Procedural fairness and Division 2A protective elements. The instrument requires assessors to have regard to procedural fairness and the reliability of information (s7(1)). It directs that adverse assessments must be made in good faith, recorded in a statement of grounds, and be as fair and transparent as protection of law enforcement and security interests allow, specifically taking account of protective elements in Division 2A of Part II of the Act (s7(2)(a)-(c)). The instrument therefore balances disclosure and fairness against statutory protective constraints.
• Information reliability and exclusion. The instrument identifies key reliability factors,credibility, nature and authenticity of facts and sources, currency of information and corroboration (s7(3)). It also sets explicit exclusions, including information subject to legislative restrictions on its use in criminal intelligence assessments and the access level indicated by transport security card colour or type (s8(1)(a)-(b)).

The instrument directly binds the ACIC and ACIC personnel who conduct criminal intelligence assessments. The operative language is prescriptive about matters the ACIC must take into account, the manner in which those matters are to be considered, and material that must not be taken into account. It therefore affects internal ACIC decision-makers and any staff delegating assessment tasks.

Indirectly affected parties include:

• Assessment subjects. Individuals who are the subject of criminal intelligence assessments under the ACIC regime will be affected by how the ACIC applies the specified considerations and exclusions. The instrument mandates that adverse assessments be recorded in a statement of grounds (s7(2)(b)), which creates a documented basis for any subsequent administrative action, disclosure, or challenge.
• Entities and industries operating aviation, maritime and offshore facilities. The instrument expressly focuses some considerations on preventing use of aviation, maritime or offshore facilities in connection with serious crime (s6(1)(c)). Where such facilities, operators, or credentialing regimes (ASIC, MSIC) are implicated, outcomes of assessments may inform prescribed administrative actions that affect access to or utilisation of those systems. The instrument also places limits on how the ACIC may treat transport security card information (s8(1)(b)), which can have downstream effects on operators that use card-held access as an operational control.
• Regulators of transport security cards. The instrument cross-refers to the Aviation Transport Security Regulations 2005 and the Maritime Transport and Offshore Facilities Security Regulations 2003 by defining transport security card through those instruments (s4). The ACIC is instructed not to consider card colour or type as indicating varying levels of risk (s8(1)(b)), meaning the ACIC is to treat presence of an ASIC or MSIC as evidence of a successful background check without inferring additional gradations from the card appearance.
• Ministers and oversight bodies. The instrument notes that it was made after the ACIC consulted with the Minister (introductory paragraph). The instrument’s requirements for recording reasons and adhering to procedural fairness and reliability (s7) create a record that may be relevant to ministerial oversight, parliamentary scrutiny or other governance processes under the Act. The instrument itself does not create new external rights or obligations for Ministerial decision-makers, but it affects the information and rationale that flow to them if prescribed administrative action is considered.

The instrument imposes procedural duties on the ACIC in the conduct of criminal intelligence assessments; it does not confer new statutory rights on private parties or create new offences. Key binding duties and procedural requirements are the following.

Duties imposed on the ACIC and assessors:

• Apply the instrument only where the ACIC has intelligence or information that raises the question of whether prescribed administrative action should be taken in respect of the assessment subject (s5). This establishes a threshold trigger for the instrument’s operation.
• Take into account specified matters when conducting an assessment. The ACIC must consider the nature of the prescribed administrative action, relevant intelligence or information about whether the assessment subject may commit or assist in serious and organised crime, and the extent to which an assessment would prevent use of aviation, maritime or offshore facilities in connection with serious crime (s6(1)(a)-(c)).
• Apply the subtleties in assessing the relevance and quality of information. Intelligence should be directly, indirectly or circumstantially relevant both to the person and to the use of transport or offshore facilities in connection with serious and organised crime (s6(2)(a)). The nature and origin of information must be carefully considered, with explicit notice that frivolous or vexatious complaints are insufficient (s6(2)(b)). Incidental contact or passive family associations are not, by themselves, sufficient to conclude that an assessment subject may commit or assist in serious and organised crime (s6(2)(c)). Close or regular contact with suspected individuals may be sufficient in some cases (s6(2)(d)).
• Have regard to procedural fairness and information reliability when making an assessment (s7(1)(a)-(b)). The instrument requires that adverse criminal intelligence assessments be made in good faith and without bias (s7(2)(a)). It also requires the ACIC to record the reasons for any adverse assessment in a statement of grounds (s7(2)(b)). The assessment process must be as fair and transparent as the protection of law enforcement and security interests allow, specifically taking account of the protective elements of Division 2A of Part II of the Act (s7(2)(c)).
• Assess information reliability by reference to the credibility, nature and authenticity of facts, currency of information and whether information has been corroborated (s7(3)(a)-(c)).
• Exclude specified material from consideration: information subject to a legislative restriction preventing its use in a criminal intelligence assessment, and for transport security cards, the access level signified by card colour or different type of transport security card the assessment subject holds or has applied for (s8(1)(a)-(b)).

The instrument contains no new criminal offences, civil penalties, or express enforcement mechanisms. It is an internal procedural instrument made under subsection 36B(2) of the Act (s3), and its operative content is declaratory or prescriptive of how the ACIC must conduct criminal intelligence assessments. The text provides no statutory sanction for non-compliance with the instrument itself, and it does not create private causes of action.

Notwithstanding the absence of explicit penalties in the instrument, the following enforcement-related features are present or implied by the instrument’s design:

• Internal accountability. The instrument requires that adverse criminal intelligence assessments be recorded in a statement of grounds (s7(2)(b)). That requirement creates an administrative record that can be used by internal oversight bodies within the ACIC, by Ministerial or parliamentary scrutiny, or by external reviewers with jurisdiction over the ACIC under other provisions of the Act. The instrument itself does not define the oversight pathway, but the record facilitates review and internal compliance monitoring.
• Procedural constraints linked to statutory protections. The instrument expressly requires assessors to make assessments in good faith and without bias (s7(2)(a)), and to observe procedural fairness as far as compatible with law enforcement and security protections (s7(2)(c)). A failure to follow those obligations may have consequences under the Act or general administrative law, depending on statutory remedies and review mechanisms external to the instrument. The instrument does not itself specify remedies.
• Evidentiary limitations and exclusionary rules. The instrument forbids the use of information that is subject to a legislative restriction preventing its use in a criminal intelligence assessment (s8(1)(a)). That is a binding evidentiary limitation that the ACIC must respect. Non-compliance could lead to challenged assessments or evidence being excluded in processes governed by the Act or other legislation.
• Interaction with prescribed administrative actions. Although the instrument does not itself confer penalties, assessments made in accordance with it may lead to prescribed administrative action under the Act. Those prescribed administrative actions may carry consequences for assessment subjects. The instrument shapes the pathway toward such actions by specifying permissible bases for assessment and mandatory procedural steps. The instrument does not itself specify the content, enforcement or appeal mechanisms for prescribed administrative actions.

The instrument is explicitly and repeatedly cross-referenced to other statutory instruments and provisions. Its operation must be read together with the Act and with specific transport security regulatory regimes. The explicit interactions set out in the text are as follows.

• Authority derived from the Act. The instrument is made under subsection 36B(2) of the Australian Crime Commission Act 2002 (s3). Core terms such as criminal intelligence assessment, adverse criminal intelligence assessment, prescribed administrative action and serious and organised crime are defined to have the same meaning as in the Act (s4). The instrument therefore relies on the Act for substantive definitions and for the broader legal context in which prescribed administrative actions may be authorised and implemented.
• Division 2A of Part II of the Act. Section 7(2)(c) of the instrument requires assessors to make the criminal intelligence assessment process as fair and transparent as the proper protection of law enforcement and security interests allow, taking account of the protective elements of Division 2A of Part II of the Act. The instrument therefore expressly defers to specific protective provisions in the Act when calibrating disclosure and procedural fairness. The instrument does not itself restate those protective elements; assessors must consult the Act for the detailed limits on disclosure and procedure.
• Transport security card regulations. The instrument defines transport security card with reference to existing regulatory regimes: ASIC as defined in the Aviation Transport Security Regulations 2005 and MSIC as defined in the Maritime Transport and Offshore Facilities Security Regulations 2003 (s4). Additionally, the instrument requires the ACIC not to take into account the access level signified by the colour or type of transport security card an assessment subject holds or has applied for (s8(1)(b)). For operational purposes, this creates a legal boundary between ACIC intelligence assessment practices and the design and categorisation used by the transport security regulatory frameworks.
• Australian Crime Commission Regulations 2018 and name usage. The instrument’s footnote explains that subsection 7(1A) of the Act and section 8 of the Australian Crime Commission Regulations 2018 provide that the Australian Crime Commission may also be known as the Australian Criminal Intelligence Commission and by the acronyms ACC and ACIC. The instrument adopts the acronym ACIC as permitted by subsection 4(1A) of the Act. This is a naming interaction rather than a substantive legal interplay, but it clarifies institutional identity across instruments.

The instrument contains an internal commencement and application statement and includes an explicit note about the table of commencement details, but it does not record any prior amendments or historical versions within the text provided.

What the instrument records about its own history:

• Date and signature. It was signed by Anne Brown, Acting CEO of the ACIC, following consultation with the Minister, and dated 19 July 2023 (introductory paragraph). The instrument states it was made under subsection 36B(2) of the Act (s3).
• Commencement. The instrument’s commencement table states that the whole instrument commences on the day after the instrument is registered (s2(1)). The table includes a note indicating it relates only to provisions as originally made and will not be amended in the instrument record to reflect later amendments (s2, the commencement table note). The instrument therefore provides a single commencement mechanism and a caution about future amendments not being reflected in the original table.
• No recorded amendments. The instrument text carries no amendment history entries, no schedules of prior versions, and no transitional provisions. There is no statement of repeal or replacement of prior instruments. The absence of such entries means that, based on the instrument alone, there were no amendments recorded at the time the instrument was made.

Implications of this amendment silence:

• If future amendments are made, they will not appear in the original commencement table as per the instrument’s note. Users seeking a consolidated history will need to consult the register or legislative database where amendments are recorded.
• The instrument, as enacted, is a stand-alone procedural direction and does not itself amend the Act, regulations, or the transport security regulatory instruments. Any amendment to its content would require the ACIC to re-issue or vary the instrument in accordance with the Act and the ACIC’s administrative procedures.

Because the instrument is short and prescriptive, its amendment history is likely to be limited to additions or alterations by the ACIC in future instruments made under subsection 36B(2) of the Act. The instrument itself provides the original text and a commencement rule, and contains a caution that the commencement table will not be updated to reflect subsequent changes.

The instrument does not contain or reference any litigation history. The body of the instrument provides no case names, judicial decisions, or references to litigation involving the ACIC, the assessment process defined in the Act, or this specific instrument.

What can be stated from the instrument itself:

• No judicial review findings, appeals, or challenges are recorded within the instrument text. There is no indication that the instrument was made in response to litigation or that it is a settlement outcome of legal proceedings.
• The instrument contains procedural protections and record-keeping requirements (for example, recording reasons in a statement of grounds under s7(2)(b)) that may be relevant evidence in any future litigation challenging ACIC assessments. However, the instrument does not itself record any litigation outcomes or references to judicial interpretation.
• The instrument references statutory materials (the Act, the Aviation and Maritime transport security regulations, and the Australian Crime Commission Regulations 2018) that may be involved in administrative or judicial review in other contexts. The instrument does not identify any judicial authorities construing those provisions in the context of criminal intelligence assessments.

For practitioners looking for litigation context, the absence of litigation material in the instrument means that any litigation history relevant to ACIC criminal intelligence assessments must be sought outside this instrument, in court databases, decisions under the Act, or published administrative law judgments. The instrument provides procedural steps (good faith, statement of grounds, procedural fairness balanced with Division 2A protections) that could be raised in litigation, but the instrument contains no discussion or record of cases applying those steps.

The instrument contains several operational and legal subtleties that may produce unintended effects if not carefully followed. The following are precise, source-grounded points drawn from the instrument text that practitioners and ACIC staff should note.

1. Application threshold is specific and not automatic (s5). The instrument applies only where the ACIC has intelligence or information that raises the question of whether prescribed administrative action should be taken in respect of the assessment subject. It does not apply to all criminal intelligence assessments. Misapplying the instrument to assessments that do not meet that trigger could lead to procedural inconsistencies or internal review issues.

2. Narrow focus on prevention of use of transport and offshore facilities (s6(1)(c)). One of the required considerations is the extent to which the assessment would prevent the use of aviation, maritime or offshore facilities in connection with serious crime. This creates a particular evidentiary and operational focus. Assessors must avoid treating this provision as an exclusive aim; it is one of several matters to take into account (s6(1)(a)-(c)), but it does prioritise transport-related risk in the instrument.

3. Frivolous or vexatious complaints cannot sustain adverse findings (s6(2)(b)). The instrument requires careful consideration of the origin and nature of information and explicitly exempts frivolous or vexatious complaints as sufficient grounds. Practically, assessors must document how they evaluated the complaint’s seriousness. Failure to make this assessment may open the ACIC to critiques that it relied on inadequate or vexatious material.

4. Family ties and incidental contact are not sufficient alone (s6(2)(c)). The instrument excludes passive associations based on family connections or incidental contact from being sufficient, of themselves, to conclude that an assessment subject may be involved in serious and organised crime. Assessors must therefore look for independent corroboration rather than inferring culpability by association.

5. Close or regular contact may suffice in some cases (s6(2)(d)). The instrument allows close or regular contact with suspected individuals to be sufficient in some cases. This introduces a fact-intensive evaluation that may be difficult to standardise. Assessors should record the factual basis for characterising contact as "close" or "regular", since s7(3)(c) requires consideration of corroboration and s7(2)(b) requires a statement of grounds for adverse assessments.

This section sets out a practical, source-grounded checklist for ACIC assessors and for external advisors who will interact with assessments under the instrument. It translates the instrument’s mandatory text into operational steps while remaining strictly grounded in the instrument provisions.

For ACIC assessors and managers

1. Confirm the instrument applies before using it. Verify that there is intelligence or information that raises the question of whether prescribed administrative action should be taken in respect of the assessment subject (s5). If the threshold in s5 is not met, the instrument’s requirements need not be applied.

2. Identify the nature of the proposed prescribed administrative action. Record what administrative step is being contemplated and ensure that the nature of that action is explicitly considered as part of the assessment (s6(1)(a)).

3. Assemble and evaluate relevant intelligence and information. Collect information directly, indirectly or circumstantially relevant both to the assessment subject and to the use of aviation, maritime or offshore facilities in connection with serious and organised crime (s6(2)(a), s6(1)(b) and s6(1)(c)). For each item of information, document its nature and origin and assess whether it is frivolous or vexatious (s6(2)(b)).

4. Treat associations carefully. Do not treat incidental contact or passive family associations, by themselves, as sufficient grounds to conclude that the assessment subject may commit or assist in serious and organised crime (s6(2)(c)). If relying on contact with suspected individuals, document why contact is "close" or "regular" and why it is probative (s6(2)(d)).

5. Apply procedural fairness and reliability standards. Have regard to procedural fairness and to information reliability when making the assessment (s7(1)(a)-(b)). Assess information credibility, authenticity, currency and corroboration (s7(3)(a)-(c)).

6. Make adverse assessments in good faith, without bias, and record reasons. If an assessment is adverse, prepare and retain a statement of grounds that records the reasons for the adverse assessment (s7(2)(a)-(b)). Ensure documentation captures the factual basis, the sources relied upon, and the rationale for relevance and weight.

7. Balance transparency with statutory protections. Ensure the assessment process is as fair and transparent as possible, consistent with protecting law enforcement and security interests and taking account of Division 2A of Part II of the Act (s7(2)(c)). Consult the Act to determine what disclosure is permissible in each case.