This Act lets the Australian Crime Commission (ACC) run intelligence operations and investigations in Queensland connected with serious and organised crime, and sets out how the ACC Board, CEO and examiners make decisions, summon witnesses, obtain documents and execute search warrants (see ss.5,6,8,18–21,29,34,45). Decisions about special operations require Board majorities and some judicial authorisations; individuals and organisations summoned or searched bear compliance costs and face criminal penalties for non‑compliance or unlawful disclosure (see ss.12,19,22,23,24).
This Act authorises the Australian Crime Commission (ACC) to operate in Queensland for the investigation and intelligence-gathering of serious and organised crime that is, or includes, offences against Queensland law. It imports the ACC’s federal architecture and adapts specific procedures and powers to operate in a State context. Key mechanical effects are:
Confers ACC functions in relation to State offences and relevant criminal activity and requires the ACC to report on operations and investigations to the Board (s 5).
Makes the CEO responsible for the day-to-day management, coordination and control of ACC State operations and investigations and requires a written determination naming the head of each operation/investigation after Board consent (s 6).
Establishes the Board’s role in deciding when an ACC State intelligence operation or investigation is a “special operation” or “special investigation”, and prescribes the information a written determination must include; the chair must notify the Inter-Governmental Committee within three days (s 8).
Creates a statutory examination regime, run by examiners, with compulsory powers to summon witnesses, require documents and take evidence under oath or affirmation for the purposes of special ACC operations/investigations (ss 17-21).
Provides search-warrant powers limited to items connected with special ACC operations/investigations, including procedures for telephonic applications in urgent circumstances (ss 29-30).
Enables judicially supervised measures to secure witness attendance or prevent flight, including orders for delivery and short-term retention of passports (s 28), and arrest warrants where there are reasonable grounds a person may evade attendance or has committed certain offences (s 24).
Current sections
Direct links to the current provisions in Australian Crime Commission (Queensland) Act 2003.
79
pt.1
Preliminary
Preliminary
sec.1
Short title
sec.1 Short title
This Act may be cited as the Australian Crime Commission (Queensland) Act 2003 .
sec.2
Commencement
sec.2 Commencement
This Act commences on a day to be fixed by proclamation.
sec.3
Interpretation
sec.3 Interpretation
The dictionary in schedule 2 defines particular words used in this Act.
If this Act uses a term that is used in the ACC Act , the term has the same meaning in this Act as it has in the ACC Act unless the contrary intention appears in this Act.
If the head of an ACC operation/investigation suspects that an offence (the incidental offence ) that is not a serious and organised crime may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of a serious and organised crime (whether or not the head has identified the nature of that serious and organised crime), then the incidental offence is, for so long only as the head so suspects, taken, for the purposes of this Act, to be a serious and organised crime.
A reference in this Act, other than part 2 , to a function includes a reference to a power or duty.
A note in the text of this Act is part of the Act .
(sec.3-ssec.1) The dictionary in schedule 2 defines particular words used in this Act.
(sec.3-ssec.2) If this Act uses a term that is used in the ACC Act , the term has the same meaning in this Act as it has in the ACC Act unless the contrary intention appears in this Act.
(sec.3-ssec.3) If the head of an ACC operation/investigation suspects that an offence (the incidental offence ) that is not a serious and organised crime may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of a serious and organised crime (whether or not the head has identified the nature of that serious and organised crime), then the incidental offence is, for so long only as the head so suspects, taken, for the purposes of this Act, to be a serious and organised crime.
(sec.3-ssec.4) A reference in this Act, other than part 2 , to a function includes a reference to a power or duty.
(sec.3-ssec.5) A note in the text of this Act is part of the Act .
sec.4
Act binds all persons
sec.4 Act binds all persons
This Act binds all persons including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.
Subsection (1) does not make the State, the Commonwealth or another State liable to be prosecuted for an offence.
(sec.4-ssec.1) This Act binds all persons including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.
(sec.4-ssec.2) Subsection (1) does not make the State, the Commonwealth or another State liable to be prosecuted for an offence.
pt.2
The Australian Crime Commission, the Board and the Inter-Governmental Committee
The Australian Crime Commission, the Board and the Inter-Governmental Committee
pt.2-div.1
The Australian Crime Commission
The Australian Crime Commission
sec.5
Functions of ACC
sec.5 Functions of ACC
The ACC has the following functions—
to undertake an intelligence operation in so far as the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect);
to investigate a matter relating to a relevant criminal activity, in so far as the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect);
to provide a report to the Board on the outcome of an operation mentioned in paragraph (a) or an investigation mentioned in paragraph (b) ;
the functions conferred on the ACC by other provisions of this Act or any other Act.
(a) to undertake an intelligence operation in so far as the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect);
(b) to investigate a matter relating to a relevant criminal activity, in so far as the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect);
(c) to provide a report to the Board on the outcome of an operation mentioned in paragraph (a) or an investigation mentioned in paragraph (b) ;
(d) the functions conferred on the ACC by other provisions of this Act or any other Act.
sec.6
CEO to manage ACC operations/investigations
sec.6 CEO to manage ACC operations/investigations
The CEO is to manage, coordinate and control ACC operations/investigations.
As soon as practicable after the Board consents under section 55A (3) of the ACC Act to the ACC undertaking an intelligence operation under section 5 (a) or conducting an investigation under section 5 (b) , the CEO must determine, in writing, the head of the operation or investigation.
Before the CEO determines the head of the operation or investigation, the CEO must consult the chair of the Board, and the other members of the Board the CEO thinks appropriate, in relation to the determination.
Subject to the consultation with the examiners as is appropriate and practicable, the CEO may make arrangements as to the examiner who is to be able to exercise his or her powers under this Act in relation to a special ACC operation/investigation.
(sec.6-ssec.1) The CEO is to manage, coordinate and control ACC operations/investigations.
(sec.6-ssec.2) As soon as practicable after the Board consents under section 55A (3) of the ACC Act to the ACC undertaking an intelligence operation under section 5 (a) or conducting an investigation under section 5 (b) , the CEO must determine, in writing, the head of the operation or investigation.
(sec.6-ssec.3) Before the CEO determines the head of the operation or investigation, the CEO must consult the chair of the Board, and the other members of the Board the CEO thinks appropriate, in relation to the determination.
(sec.6-ssec.4) Subject to the consultation with the examiners as is appropriate and practicable, the CEO may make arrangements as to the examiner who is to be able to exercise his or her powers under this Act in relation to a special ACC operation/investigation.
sec.7
Counsel assisting ACC
sec.7 Counsel assisting ACC
The CEO may appoint a lawyer to assist the ACC as counsel in relation to ACC operations/investigations generally or in relation to a particular matter or matters.
pt.2-div.2
The Board of the ACC
The Board of the ACC
sec.8
Functions of the Board
sec.8 Functions of the Board
The Board has the following functions—
to determine, in writing, whether an ACC State intelligence operation is a special operation or whether an ACC State investigation is a special investigation;
to determine, in writing, the class or classes of persons to participate in an ACC State intelligence operation or ACC State investigation;
to establish task forces;
the other functions conferred on the Board by other provisions of this Act.
The Board may determine, in writing, that an ACC State intelligence operation is a special operation.
Before making a determination under subsection (2) , the Board must consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective.
The Board may determine, in writing, that an ACC State investigation is a special investigation.
Before making a determination under subsection (4) , the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective.
A determination under subsection (2) or (4) must—
describe the general nature of the circumstances or allegations constituting the relevant criminal activity to which the operation or investigation relates; and
state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State but need not specify the particular offence or offences; and
set out the purpose of the operation or investigation.
The chair of the Board must, within the period of 3 days beginning on the day a determination under subsection (2) or (4) is made, give a copy of the determination to the Inter-Governmental Committee.
A determination under subsection (2) or (4) has effect immediately after it is made.
Sections 9 to 15 have effect in relation to the Board’s functions under this Act.
(sec.8-ssec.1) The Board has the following functions— to determine, in writing, whether an ACC State intelligence operation is a special operation or whether an ACC State investigation is a special investigation; to determine, in writing, the class or classes of persons to participate in an ACC State intelligence operation or ACC State investigation; to establish task forces; the other functions conferred on the Board by other provisions of this Act.
(sec.8-ssec.2) The Board may determine, in writing, that an ACC State intelligence operation is a special operation.
(sec.8-ssec.3) Before making a determination under subsection (2) , the Board must consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective.
(sec.8-ssec.4) The Board may determine, in writing, that an ACC State investigation is a special investigation.
(sec.8-ssec.5) Before making a determination under subsection (4) , the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective.
(sec.8-ssec.6) A determination under subsection (2) or (4) must— describe the general nature of the circumstances or allegations constituting the relevant criminal activity to which the operation or investigation relates; and state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State but need not specify the particular offence or offences; and set out the purpose of the operation or investigation.
(sec.8-ssec.7) The chair of the Board must, within the period of 3 days beginning on the day a determination under subsection (2) or (4) is made, give a copy of the determination to the Inter-Governmental Committee.
(sec.8-ssec.8) A determination under subsection (2) or (4) has effect immediately after it is made.
(sec.8-ssec.9) Sections 9 to 15 have effect in relation to the Board’s functions under this Act.
(a) to determine, in writing, whether an ACC State intelligence operation is a special operation or whether an ACC State investigation is a special investigation;
(b) to determine, in writing, the class or classes of persons to participate in an ACC State intelligence operation or ACC State investigation;
(c) to establish task forces;
(d) the other functions conferred on the Board by other provisions of this Act.
(a) describe the general nature of the circumstances or allegations constituting the relevant criminal activity to which the operation or investigation relates; and
(b) state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State but need not specify the particular offence or offences; and
(c) set out the purpose of the operation or investigation.
sec.9
Board meetings
sec.9 Board meetings
The chair of the Board may convene meetings of the Board.
The chair, in exercising his or her power to convene meetings, must ensure that meetings of the Board are scheduled to meet the requirements set out in section 7D of the ACC Act .
(sec.9-ssec.1) The chair of the Board may convene meetings of the Board.
(sec.9-ssec.2) The chair, in exercising his or her power to convene meetings, must ensure that meetings of the Board are scheduled to meet the requirements set out in section 7D of the ACC Act .
sec.10
Presiding at Board meetings
sec.10 Presiding at Board meetings
A meeting of the Board must be presided over by—
if the chair of the Board is present—the chair; or
otherwise—another eligible Commonwealth Board member who is present and who is nominated, in writing, by the chair to preside.
(a) if the chair of the Board is present—the chair; or
(b) otherwise—another eligible Commonwealth Board member who is present and who is nominated, in writing, by the chair to preside.
sec.11
Quorum at Board meetings
sec.11 Quorum at Board meetings
At a meeting of the Board a quorum is constituted by 9 Board members (not including the CEO).
s 11 amd 2016 No. 48 s 4
sec.12
Voting at Board meetings
sec.12 Voting at Board meetings
Subject to this section, a question arising at a meeting of the Board is to be determined by a majority of the votes of Board members present.
The person presiding at a meeting has—
a deliberative vote; and
if necessary, also a casting vote.
The CEO is not entitled to vote on any question arising at a meeting of the Board.
The Board can not determine that an ACC State intelligence operation is a special operation, or that an ACC State investigation is a special investigation, unless at least 9 Board members (including at least 2 eligible Commonwealth Board members) vote in favour of making the determination.
(sec.12-ssec.1) Subject to this section, a question arising at a meeting of the Board is to be determined by a majority of the votes of Board members present.
(sec.12-ssec.2) The person presiding at a meeting has— a deliberative vote; and if necessary, also a casting vote.
(sec.12-ssec.3) The CEO is not entitled to vote on any question arising at a meeting of the Board.
(sec.12-ssec.4) The Board can not determine that an ACC State intelligence operation is a special operation, or that an ACC State investigation is a special investigation, unless at least 9 Board members (including at least 2 eligible Commonwealth Board members) vote in favour of making the determination.
(a) a deliberative vote; and
(b) if necessary, also a casting vote.
sec.13
Conduct of Board meetings
sec.13 Conduct of Board meetings
The Board may regulate proceedings at its meetings as it considers appropriate.
The Board must ensure that minutes of its meetings are kept.
(sec.13-ssec.1) The Board may regulate proceedings at its meetings as it considers appropriate.
(sec.13-ssec.2) The Board must ensure that minutes of its meetings are kept.
sec.14
Resolutions outside of Board meetings
sec.14 Resolutions outside of Board meetings
This section applies to a resolution—
that, without being considered at a meeting of the Board, is referred to all members of the Board; and
of which—
if subparagraph (ii) does not apply—a majority of those members (not including the CEO); or
if the resolution is that the Board determine that an ACC State intelligence operation is a special operation, or that an ACC State investigation is a special investigation—at least 9 Board members (not including the CEO but including at least 2 eligible Commonwealth Board members);
indicate by telephone or other mode of communication to the chair of the Board that they are in favour.
The resolution is as valid and effectual as if it had been passed at a meeting of the Board duly convened and held.
(sec.14-ssec.1) This section applies to a resolution— that, without being considered at a meeting of the Board, is referred to all members of the Board; and of which— if subparagraph (ii) does not apply—a majority of those members (not including the CEO); or if the resolution is that the Board determine that an ACC State intelligence operation is a special operation, or that an ACC State investigation is a special investigation—at least 9 Board members (not including the CEO but including at least 2 eligible Commonwealth Board members); indicate by telephone or other mode of communication to the chair of the Board that they are in favour.
(sec.14-ssec.2) The resolution is as valid and effectual as if it had been passed at a meeting of the Board duly convened and held.
(a) that, without being considered at a meeting of the Board, is referred to all members of the Board; and
(b) of which— (i) if subparagraph (ii) does not apply—a majority of those members (not including the CEO); or (ii) if the resolution is that the Board determine that an ACC State intelligence operation is a special operation, or that an ACC State investigation is a special investigation—at least 9 Board members (not including the CEO but including at least 2 eligible Commonwealth Board members); indicate by telephone or other mode of communication to the chair of the Board that they are in favour.
(i) if subparagraph (ii) does not apply—a majority of those members (not including the CEO); or
(ii) if the resolution is that the Board determine that an ACC State intelligence operation is a special operation, or that an ACC State investigation is a special investigation—at least 9 Board members (not including the CEO but including at least 2 eligible Commonwealth Board members);
(i) if subparagraph (ii) does not apply—a majority of those members (not including the CEO); or
(ii) if the resolution is that the Board determine that an ACC State intelligence operation is a special operation, or that an ACC State investigation is a special investigation—at least 9 Board members (not including the CEO but including at least 2 eligible Commonwealth Board members);
sec.15
Board committees
sec.15 Board committees
The Board may, with the unanimous agreement of all the members of the Board (not including the CEO), establish a committee or committees to assist in carrying out the functions of the Board.
The Board may dissolve a committee at any time.
The functions of a committee are as determined by the unanimous agreement of all the members of the Board (not including the CEO).
However, the Board can not determine that a committee has the function of determining whether an ACC State intelligence operation is a special operation or whether an ACC State investigation is a special investigation.
In performing its functions, a committee must comply with any directions given to the committee by the Board.
A question arising at a meeting of a committee is to be determined by a majority of the votes of committee members present.
However, the CEO is not entitled to vote on any question arising at a meeting of a committee of which he or she is a member.
A committee must inform the other members of the Board of its decisions.
A committee may regulate proceedings at its meetings as it considers appropriate.
A committee must ensure that minutes of its meetings are kept.
(sec.15-ssec.1) The Board may, with the unanimous agreement of all the members of the Board (not including the CEO), establish a committee or committees to assist in carrying out the functions of the Board.
(sec.15-ssec.2) The Board may dissolve a committee at any time.
(sec.15-ssec.3) The functions of a committee are as determined by the unanimous agreement of all the members of the Board (not including the CEO).
(sec.15-ssec.4) However, the Board can not determine that a committee has the function of determining whether an ACC State intelligence operation is a special operation or whether an ACC State investigation is a special investigation.
(sec.15-ssec.5) In performing its functions, a committee must comply with any directions given to the committee by the Board.
(sec.15-ssec.6) A question arising at a meeting of a committee is to be determined by a majority of the votes of committee members present.
(sec.15-ssec.7) However, the CEO is not entitled to vote on any question arising at a meeting of a committee of which he or she is a member.
(sec.15-ssec.8) A committee must inform the other members of the Board of its decisions.
(sec.15-ssec.9) A committee may regulate proceedings at its meetings as it considers appropriate.
(sec.15-ssec.10) A committee must ensure that minutes of its meetings are kept.
pt.2-div.3
The Inter-Governmental Committee
The Inter-Governmental Committee
sec.16
Functions of Committee
sec.16 Functions of Committee
Within the period of 30 days beginning on the day the Committee is given a copy of a determination (a special determination ) under section 8 (2) or (4) , the Committee may by resolution, with the agreement of the member of the Committee representing the Commonwealth and at least 5 other members of the Committee, request the chair of the Board to give further information to the Committee in relation to the determination.
Subject to subsection (3) , the chair of the Board must comply with the request.
If the chair of the Board considers that disclosure of information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the chair must not give the Committee the information.
If the chair of the Board does not give the Committee information on the ground that the chair considers that disclosure of the information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the Committee may refer the request to the State Minister.
If the Committee refers the request to the State Minister, he or she—
must determine in writing whether disclosure of the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies; and
must provide copies of that determination to the chair of the Board and the Committee; and
must not disclose his or her reasons for determining the question of whether the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies in the way stated in the determination.
Within the period of 30 days beginning on the day the Committee makes a request under subsection (1) in relation to a special determination, the Committee may by resolution, with the agreement of the member of the Committee representing the Commonwealth and at least 5 other members of the Committee, revoke the determination.
The Committee must notify the chair of the Board and the CEO of the revocation.
The revocation takes effect when the CEO is so notified.
To remove any doubt, it is declared that the revoking of the determination does not affect the validity of any act done in connection with the ACC operation/investigation concerned before the CEO is so notified.
The Committee does not have a duty to consider whether to exercise the power under subsection (1) or (6) for any special determination, whether the Committee is requested to do so by any person, or in any other circumstances.
(sec.16-ssec.1) Within the period of 30 days beginning on the day the Committee is given a copy of a determination (a special determination ) under section 8 (2) or (4) , the Committee may by resolution, with the agreement of the member of the Committee representing the Commonwealth and at least 5 other members of the Committee, request the chair of the Board to give further information to the Committee in relation to the determination.
(sec.16-ssec.2) Subject to subsection (3) , the chair of the Board must comply with the request.
(sec.16-ssec.3) If the chair of the Board considers that disclosure of information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the chair must not give the Committee the information.
(sec.16-ssec.4) If the chair of the Board does not give the Committee information on the ground that the chair considers that disclosure of the information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the Committee may refer the request to the State Minister.
(sec.16-ssec.5) If the Committee refers the request to the State Minister, he or she— must determine in writing whether disclosure of the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies; and must provide copies of that determination to the chair of the Board and the Committee; and must not disclose his or her reasons for determining the question of whether the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies in the way stated in the determination.
(sec.16-ssec.6) Within the period of 30 days beginning on the day the Committee makes a request under subsection (1) in relation to a special determination, the Committee may by resolution, with the agreement of the member of the Committee representing the Commonwealth and at least 5 other members of the Committee, revoke the determination.
(sec.16-ssec.7) The Committee must notify the chair of the Board and the CEO of the revocation.
(sec.16-ssec.8) The revocation takes effect when the CEO is so notified.
(sec.16-ssec.9) To remove any doubt, it is declared that the revoking of the determination does not affect the validity of any act done in connection with the ACC operation/investigation concerned before the CEO is so notified.
(sec.16-ssec.10) The Committee does not have a duty to consider whether to exercise the power under subsection (1) or (6) for any special determination, whether the Committee is requested to do so by any person, or in any other circumstances.
(a) must determine in writing whether disclosure of the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies; and
(b) must provide copies of that determination to the chair of the Board and the Committee; and
(c) must not disclose his or her reasons for determining the question of whether the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies in the way stated in the determination.
pt.3
Examinations
Examinations
sec.17
Examinations
sec.17 Examinations
An examiner may conduct an examination for the purposes of a special ACC operation/investigation.
sec.18
Conduct of examination
sec.18 Conduct of examination
An examiner may regulate the conduct of proceedings at an examination as the examiner thinks fit.
At an examination before an examiner—
a person giving evidence may be represented by a lawyer; and
if, because of the existence of special circumstances, the examiner consents to a person who is not giving evidence being represented by a lawyer—the person may be so represented.
An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.
Nothing in a direction given by the examiner under subsection (3) prevents the presence, when evidence is being taken at an examination before the examiner, of—
a person representing the person giving evidence; or
a person representing, under subsection (2) , a person who, because of a direction given by the examiner under subsection (3) , is entitled to be present.
If an examination before an examiner is being held, a person (other than a member of the staff of the ACC approved by the examiner) must not be present at the examination unless the person is entitled to be present because of a direction given by the examiner under subsection (3) or because of subsection (4) .
Maximum penalty—30 penalty units or 1 year’s imprisonment.
At an examination before an examiner the following persons may, so far as the examiner thinks appropriate, examine or cross-examine any witness on any matter that the examiner considers relevant to the ACC operation/investigation—
counsel assisting the examiner generally or in relation to the matter to which the ACC operation/investigation relates;
any person authorised by the examiner to appear before the examiner at the examination;
any lawyer representing a person at the examination in accordance with subsection (2) .
If a person (other than a member of the staff of the ACC) is present at an examination before an examiner while another person (the witness ) is giving evidence at the examination, the examiner must—
inform the witness that the person is present; and
give the witness an opportunity to comment on the presence of the person.
To remove any doubt, it is declared that a person does not cease to be entitled to be present at an examination before an examiner, or part of an examination before an examiner, if—
the examiner fails to comply with subsection (7) ; or
a witness comments adversely on the presence of the person under subsection (7) (b) .
An examiner may direct that the following must not be published, or must not be published except in the way, and to the persons, that the examiner specifies—
any evidence given before the examiner;
the contents of any document, or a description of any thing, produced to the examiner;
any information that might enable a person who has given evidence before the examiner to be identified;
the fact that any person has given or may be about to give evidence at an examination.
The examiner must give a direction under subsection (9) if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
Subject to subsection (12) , the CEO may, in writing, vary or revoke a direction under subsection (9) .
The CEO must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.
If—
a person has been charged with an offence before a Federal Court or before a court of the State; and
the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9) , be made available to the person or to a lawyer representing the person;
the court may give to the examiner or to the CEO a certificate to that effect.
If a court gives a certificate to the examiner or CEO under subsection (13) , the examiner or the CEO must make the evidence available to the court.
If—
the examiner or the CEO makes evidence available to a court under subsection (14) ; and
the court, after examining the evidence, is satisfied that the interests of justice so require;
the court may make the evidence available to the person charged with the offence concerned or to a lawyer representing the person.
A person must not make a publication in contravention of a direction given under subsection (9) .
Maximum penalty—30 penalty units or 1 year’s imprisonment.
At the conclusion of an examination held by an examiner, the examiner must give the head of the special ACC operation/investigation—
a record of the proceedings of the examination; and
any documents or other things given to the examiner at, or in connection with, the examination.
(sec.18-ssec.1) An examiner may regulate the conduct of proceedings at an examination as the examiner thinks fit.
(sec.18-ssec.2) At an examination before an examiner— a person giving evidence may be represented by a lawyer; and if, because of the existence of special circumstances, the examiner consents to a person who is not giving evidence being represented by a lawyer—the person may be so represented.
(sec.18-ssec.3) An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.
(sec.18-ssec.4) Nothing in a direction given by the examiner under subsection (3) prevents the presence, when evidence is being taken at an examination before the examiner, of— a person representing the person giving evidence; or a person representing, under subsection (2) , a person who, because of a direction given by the examiner under subsection (3) , is entitled to be present.
(sec.18-ssec.5) If an examination before an examiner is being held, a person (other than a member of the staff of the ACC approved by the examiner) must not be present at the examination unless the person is entitled to be present because of a direction given by the examiner under subsection (3) or because of subsection (4) . Maximum penalty—30 penalty units or 1 year’s imprisonment.
(sec.18-ssec.6) At an examination before an examiner the following persons may, so far as the examiner thinks appropriate, examine or cross-examine any witness on any matter that the examiner considers relevant to the ACC operation/investigation— counsel assisting the examiner generally or in relation to the matter to which the ACC operation/investigation relates; any person authorised by the examiner to appear before the examiner at the examination; any lawyer representing a person at the examination in accordance with subsection (2) .
(sec.18-ssec.7) If a person (other than a member of the staff of the ACC) is present at an examination before an examiner while another person (the witness ) is giving evidence at the examination, the examiner must— inform the witness that the person is present; and give the witness an opportunity to comment on the presence of the person.
(sec.18-ssec.8) To remove any doubt, it is declared that a person does not cease to be entitled to be present at an examination before an examiner, or part of an examination before an examiner, if— the examiner fails to comply with subsection (7) ; or a witness comments adversely on the presence of the person under subsection (7) (b) .
(sec.18-ssec.9) An examiner may direct that the following must not be published, or must not be published except in the way, and to the persons, that the examiner specifies— any evidence given before the examiner; the contents of any document, or a description of any thing, produced to the examiner; any information that might enable a person who has given evidence before the examiner to be identified; the fact that any person has given or may be about to give evidence at an examination.
(sec.18-ssec.10) The examiner must give a direction under subsection (9) if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
(sec.18-ssec.11) Subject to subsection (12) , the CEO may, in writing, vary or revoke a direction under subsection (9) .
(sec.18-ssec.12) The CEO must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.
(sec.18-ssec.13) If— a person has been charged with an offence before a Federal Court or before a court of the State; and the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9) , be made available to the person or to a lawyer representing the person; the court may give to the examiner or to the CEO a certificate to that effect.
(sec.18-ssec.14) If a court gives a certificate to the examiner or CEO under subsection (13) , the examiner or the CEO must make the evidence available to the court.
(sec.18-ssec.15) If— the examiner or the CEO makes evidence available to a court under subsection (14) ; and the court, after examining the evidence, is satisfied that the interests of justice so require; the court may make the evidence available to the person charged with the offence concerned or to a lawyer representing the person.
(sec.18-ssec.16) A person must not make a publication in contravention of a direction given under subsection (9) . Maximum penalty—30 penalty units or 1 year’s imprisonment.
(sec.18-ssec.17) At the conclusion of an examination held by an examiner, the examiner must give the head of the special ACC operation/investigation— a record of the proceedings of the examination; and any documents or other things given to the examiner at, or in connection with, the examination.
(a) a person giving evidence may be represented by a lawyer; and
(b) if, because of the existence of special circumstances, the examiner consents to a person who is not giving evidence being represented by a lawyer—the person may be so represented.
(a) a person representing the person giving evidence; or
(b) a person representing, under subsection (2) , a person who, because of a direction given by the examiner under subsection (3) , is entitled to be present.
(a) counsel assisting the examiner generally or in relation to the matter to which the ACC operation/investigation relates;
(b) any person authorised by the examiner to appear before the examiner at the examination;
(c) any lawyer representing a person at the examination in accordance with subsection (2) .
(a) inform the witness that the person is present; and
(b) give the witness an opportunity to comment on the presence of the person.
(a) the examiner fails to comply with subsection (7) ; or
(b) a witness comments adversely on the presence of the person under subsection (7) (b) .
(a) any evidence given before the examiner;
(b) the contents of any document, or a description of any thing, produced to the examiner;
(c) any information that might enable a person who has given evidence before the examiner to be identified;
(d) the fact that any person has given or may be about to give evidence at an examination.
(a) a person has been charged with an offence before a Federal Court or before a court of the State; and
(b) the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9) , be made available to the person or to a lawyer representing the person;
(a) the examiner or the CEO makes evidence available to a court under subsection (14) ; and
(b) the court, after examining the evidence, is satisfied that the interests of justice so require;
(a) a record of the proceedings of the examination; and
(b) any documents or other things given to the examiner at, or in connection with, the examination.
sec.19
Power to summon witnesses and take evidence
sec.19 Power to summon witnesses and take evidence
An examiner may summon a person to appear before the examiner at an examination to give evidence and to produce the documents or other things, if any, referred to in the summons.
Before issuing a summons under subsection (1) , the examiner must be satisfied that it is reasonable in all the circumstances to do so.
The examiner must also record in writing the reasons for the issue of the summons.
A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the State ACC intelligence operation is a special operation or that the State ACC investigation is a special investigation.
A summons under subsection (1) requiring a person to appear before an examiner at an examination must, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the examiner intends to question the person.
Nothing in subsection (5) prevents the examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.
The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.
An examiner may, at an examination, take evidence on oath or affirmation and for that purpose—
the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and
the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.
In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO.
The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.
(sec.19-ssec.1) An examiner may summon a person to appear before the examiner at an examination to give evidence and to produce the documents or other things, if any, referred to in the summons.
(sec.19-ssec.2) Before issuing a summons under subsection (1) , the examiner must be satisfied that it is reasonable in all the circumstances to do so.
(sec.19-ssec.3) The examiner must also record in writing the reasons for the issue of the summons.
(sec.19-ssec.4) A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the State ACC intelligence operation is a special operation or that the State ACC investigation is a special investigation.
(sec.19-ssec.5) A summons under subsection (1) requiring a person to appear before an examiner at an examination must, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the examiner intends to question the person.
(sec.19-ssec.6) Nothing in subsection (5) prevents the examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.
(sec.19-ssec.7) The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.
(sec.19-ssec.8) An examiner may, at an examination, take evidence on oath or affirmation and for that purpose— the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.
(sec.19-ssec.9) In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO.
(sec.19-ssec.10) The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.
(a) the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and
(b) the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.
sec.20
Power to obtain documents
sec.20 Power to obtain documents
An examiner may, by notice in writing served on a person, require the person—
to attend, at a time and place specified in the notice, before a person specified in the notice, being the examiner or a member of the staff of the ACC; and
to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special ACC operation/investigation.
Before issuing a notice under subsection (1) , the examiner must be satisfied that it is reasonable in all the circumstances to do so.
The examiner must record in writing the reasons for the issue of the notice.
A notice may be issued under this section in relation to a special ACC operation/investigation, whether or not an examination before an examiner is being held for the purposes of the operation or investigation.
A person must not refuse or fail to comply with a notice served on the person under this section.
Maximum penalty—300 penalty units or 5 years imprisonment.
The provisions of section 23 (3) to (9) apply in relation to a person who is required to produce a document or thing by a notice served on him or her under this section in the same way as they apply in relation to a person who is required to produce a document or thing at an examination before an examiner.
(sec.20-ssec.1) An examiner may, by notice in writing served on a person, require the person— to attend, at a time and place specified in the notice, before a person specified in the notice, being the examiner or a member of the staff of the ACC; and to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special ACC operation/investigation.
(sec.20-ssec.2) Before issuing a notice under subsection (1) , the examiner must be satisfied that it is reasonable in all the circumstances to do so.
(sec.20-ssec.3) The examiner must record in writing the reasons for the issue of the notice.
(sec.20-ssec.4) A notice may be issued under this section in relation to a special ACC operation/investigation, whether or not an examination before an examiner is being held for the purposes of the operation or investigation.
(sec.20-ssec.5) A person must not refuse or fail to comply with a notice served on the person under this section. Maximum penalty—300 penalty units or 5 years imprisonment.
(sec.20-ssec.6) The provisions of section 23 (3) to (9) apply in relation to a person who is required to produce a document or thing by a notice served on him or her under this section in the same way as they apply in relation to a person who is required to produce a document or thing at an examination before an examiner.
(a) to attend, at a time and place specified in the notice, before a person specified in the notice, being the examiner or a member of the staff of the ACC; and
(b) to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special ACC operation/investigation.
sec.21
Disclosure of summons or notice may be prohibited
sec.21 Disclosure of summons or notice may be prohibited
The examiner issuing a summons under section 19 or a notice under section 20 must, or may, as provided in subsection (2) , include in it a notation to the effect that disclosure of information about the summons or notice, or any official matter connected with it, is prohibited except in the circumstances, if any, specified in the notation.
A notation must not be included in the summons or notice except as follows—
the examiner must include the notation if satisfied that failure to do so would reasonably be expected to prejudice—
the safety or reputation of a person; or
the fair trial of a person who has been or may be charged with an offence; or
the effectiveness of an operation or investigation;
the examiner may include the notation if satisfied that failure to do so might prejudice—
the safety or reputation of a person; or
the fair trial of a person who has been or may be charged with an offence; or
the effectiveness of an operation or investigation;
the examiner may include the notation if satisfied that failure to do so might otherwise be contrary to the public interest.
If a notation is included in the summons or notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 22 on the person who was served with, or otherwise given, the summons or notice.
A notation that is included under this section in any summons or notice relating to the operation or investigation is cancelled by this subsection if, after the ACC has concluded the operation or investigation concerned—
no evidence of an offence has been obtained as described in section 34 (1) ; or
evidence of an offence or offences has been assembled and given as required by section 34 (1) and the CEO has been advised that no person will be prosecuted; or
evidence of an offence or offences committed by only 1 person has been assembled and given as required by section 34 (1) and criminal proceedings have begun against that person; or
evidence of an offence or offences committed by 2 or more persons has been assembled and given as required by section 34 (1) and—
criminal proceedings have begun against all those persons; or
criminal proceedings have begun against 1 or more of those persons and the CEO has been advised that no other of those persons will be prosecuted.
If a notation is cancelled by subsection (4) , the CEO must serve a written notice of that fact on each person who was served with, or otherwise given, the summons or notice containing the notation.
In this section—
official matter has the same meaning as in section 22 .
(sec.21-ssec.1) The examiner issuing a summons under section 19 or a notice under section 20 must, or may, as provided in subsection (2) , include in it a notation to the effect that disclosure of information about the summons or notice, or any official matter connected with it, is prohibited except in the circumstances, if any, specified in the notation.
(sec.21-ssec.2) A notation must not be included in the summons or notice except as follows— the examiner must include the notation if satisfied that failure to do so would reasonably be expected to prejudice— the safety or reputation of a person; or the fair trial of a person who has been or may be charged with an offence; or the effectiveness of an operation or investigation; the examiner may include the notation if satisfied that failure to do so might prejudice— the safety or reputation of a person; or the fair trial of a person who has been or may be charged with an offence; or the effectiveness of an operation or investigation; the examiner may include the notation if satisfied that failure to do so might otherwise be contrary to the public interest.
(sec.21-ssec.3) If a notation is included in the summons or notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 22 on the person who was served with, or otherwise given, the summons or notice.
(sec.21-ssec.4) A notation that is included under this section in any summons or notice relating to the operation or investigation is cancelled by this subsection if, after the ACC has concluded the operation or investigation concerned— no evidence of an offence has been obtained as described in section 34 (1) ; or evidence of an offence or offences has been assembled and given as required by section 34 (1) and the CEO has been advised that no person will be prosecuted; or evidence of an offence or offences committed by only 1 person has been assembled and given as required by section 34 (1) and criminal proceedings have begun against that person; or evidence of an offence or offences committed by 2 or more persons has been assembled and given as required by section 34 (1) and— criminal proceedings have begun against all those persons; or criminal proceedings have begun against 1 or more of those persons and the CEO has been advised that no other of those persons will be prosecuted.
(sec.21-ssec.5) If a notation is cancelled by subsection (4) , the CEO must serve a written notice of that fact on each person who was served with, or otherwise given, the summons or notice containing the notation.
(sec.21-ssec.6) In this section— official matter has the same meaning as in section 22 .
(a) the examiner must include the notation if satisfied that failure to do so would reasonably be expected to prejudice— (i) the safety or reputation of a person; or (ii) the fair trial of a person who has been or may be charged with an offence; or (iii) the effectiveness of an operation or investigation;
(i) the safety or reputation of a person; or
(ii) the fair trial of a person who has been or may be charged with an offence; or
(iii) the effectiveness of an operation or investigation;
(b) the examiner may include the notation if satisfied that failure to do so might prejudice— (i) the safety or reputation of a person; or (ii) the fair trial of a person who has been or may be charged with an offence; or (iii) the effectiveness of an operation or investigation;
(i) the safety or reputation of a person; or
(ii) the fair trial of a person who has been or may be charged with an offence; or
(iii) the effectiveness of an operation or investigation;
(c) the examiner may include the notation if satisfied that failure to do so might otherwise be contrary to the public interest.
(i) the safety or reputation of a person; or
(ii) the fair trial of a person who has been or may be charged with an offence; or
(iii) the effectiveness of an operation or investigation;
(i) the safety or reputation of a person; or
(ii) the fair trial of a person who has been or may be charged with an offence; or
(iii) the effectiveness of an operation or investigation;
(a) no evidence of an offence has been obtained as described in section 34 (1) ; or
(b) evidence of an offence or offences has been assembled and given as required by section 34 (1) and the CEO has been advised that no person will be prosecuted; or
(c) evidence of an offence or offences committed by only 1 person has been assembled and given as required by section 34 (1) and criminal proceedings have begun against that person; or
(d) evidence of an offence or offences committed by 2 or more persons has been assembled and given as required by section 34 (1) and— (i) criminal proceedings have begun against all those persons; or (ii) criminal proceedings have begun against 1 or more of those persons and the CEO has been advised that no other of those persons will be prosecuted.
(i) criminal proceedings have begun against all those persons; or
(ii) criminal proceedings have begun against 1 or more of those persons and the CEO has been advised that no other of those persons will be prosecuted.
(i) criminal proceedings have begun against all those persons; or
(ii) criminal proceedings have begun against 1 or more of those persons and the CEO has been advised that no other of those persons will be prosecuted.
sec.22
Offences of disclosure
sec.22 Offences of disclosure
A person who is served with, or otherwise given, a summons or notice containing a notation made under section 21 must not disclose—
the existence of the summons or notice or any information about it; or
the existence of, or any information about, any official matter connected with the summons or notice.
Maximum penalty—30 penalty units or 1 year’s imprisonment.
Subsection (1) does not prevent the person from making a disclosure—
in accordance with the circumstances, if any, specified in the notation; or
to a lawyer for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or
if the person is a body corporate—to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or
if the person is a lawyer—for the purpose of obtaining the agreement of another person under section 23 (3) to the lawyer answering a question or producing a document at an examination before an examiner.
If a disclosure is made to a person as permitted by subsection (2) or (4) , the following provisions apply—
while he or she is a person of a kind to whom a disclosure is so permitted to be made, he or she must not disclose the existence of, or any information about, the summons or notice, or any official matter connected with it, except as permitted by subsection (4) ;
while he or she is no longer a person of a kind to whom a disclosure is so permitted to be made, he or she must not, in any circumstances, make a record of, or disclose the existence of, the summons, notice or matter, or disclose any information about any of them.
Maximum penalty—30 penalty units or 1 year’s imprisonment.
A person to whom information has been disclosed, as permitted by subsection (2) or this subsection, may disclose that information—
if the person is an officer or agent of a body corporate referred to in subsection (2) (c) —
to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or
to a lawyer for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or
if the person is a lawyer—for the purpose of giving legal advice, or making representations, relating to the summons, notice or matter.
This section ceases to apply to a summons or notice after the sooner of—
the cancellation of the notation contained in the summons or notice by section 21 (4) ; or
the elapse of 5 years after the issue of the summons or notice.
A reference in this section to disclosing something’s existence includes disclosing information from which a person could reasonably be expected to infer its existence.
In this section—
official matter means any of the following (whether past, present or contingent)—
the determination referred to in section 19 (4) ;
an ACC operation/investigation;
an examination held by an examiner;
court proceedings.
(sec.22-ssec.1) A person who is served with, or otherwise given, a summons or notice containing a notation made under section 21 must not disclose— the existence of the summons or notice or any information about it; or the existence of, or any information about, any official matter connected with the summons or notice. Maximum penalty—30 penalty units or 1 year’s imprisonment.
(sec.22-ssec.2) Subsection (1) does not prevent the person from making a disclosure— in accordance with the circumstances, if any, specified in the notation; or to a lawyer for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or if the person is a body corporate—to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or if the person is a lawyer—for the purpose of obtaining the agreement of another person under section 23 (3) to the lawyer answering a question or producing a document at an examination before an examiner.
(sec.22-ssec.3) If a disclosure is made to a person as permitted by subsection (2) or (4) , the following provisions apply— while he or she is a person of a kind to whom a disclosure is so permitted to be made, he or she must not disclose the existence of, or any information about, the summons or notice, or any official matter connected with it, except as permitted by subsection (4) ; while he or she is no longer a person of a kind to whom a disclosure is so permitted to be made, he or she must not, in any circumstances, make a record of, or disclose the existence of, the summons, notice or matter, or disclose any information about any of them. Maximum penalty—30 penalty units or 1 year’s imprisonment.
(sec.22-ssec.4) A person to whom information has been disclosed, as permitted by subsection (2) or this subsection, may disclose that information— if the person is an officer or agent of a body corporate referred to in subsection (2) (c) — to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or to a lawyer for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or if the person is a lawyer—for the purpose of giving legal advice, or making representations, relating to the summons, notice or matter.
(sec.22-ssec.5) This section ceases to apply to a summons or notice after the sooner of— the cancellation of the notation contained in the summons or notice by section 21 (4) ; or the elapse of 5 years after the issue of the summons or notice.
(sec.22-ssec.6) A reference in this section to disclosing something’s existence includes disclosing information from which a person could reasonably be expected to infer its existence.
(sec.22-ssec.7) In this section— official matter means any of the following (whether past, present or contingent)— the determination referred to in section 19 (4) ; an ACC operation/investigation; an examination held by an examiner; court proceedings.
(a) the existence of the summons or notice or any information about it; or
(b) the existence of, or any information about, any official matter connected with the summons or notice.
(a) in accordance with the circumstances, if any, specified in the notation; or
(b) to a lawyer for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or
(c) if the person is a body corporate—to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or
(d) if the person is a lawyer—for the purpose of obtaining the agreement of another person under section 23 (3) to the lawyer answering a question or producing a document at an examination before an examiner.
(a) while he or she is a person of a kind to whom a disclosure is so permitted to be made, he or she must not disclose the existence of, or any information about, the summons or notice, or any official matter connected with it, except as permitted by subsection (4) ;
(b) while he or she is no longer a person of a kind to whom a disclosure is so permitted to be made, he or she must not, in any circumstances, make a record of, or disclose the existence of, the summons, notice or matter, or disclose any information about any of them.
(a) if the person is an officer or agent of a body corporate referred to in subsection (2) (c) — (i) to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or (ii) to a lawyer for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or
(i) to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or
(ii) to a lawyer for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or
(b) if the person is a lawyer—for the purpose of giving legal advice, or making representations, relating to the summons, notice or matter.
(i) to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or
(ii) to a lawyer for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or
(a) the cancellation of the notation contained in the summons or notice by section 21 (4) ; or
(b) the elapse of 5 years after the issue of the summons or notice.
(a) the determination referred to in section 19 (4) ;
(b) an ACC operation/investigation;
(c) an examination held by an examiner;
(d) court proceedings.
sec.23
Failure of witnesses to attend and answer questions
sec.23 Failure of witnesses to attend and answer questions
A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner must not—
fail to attend as required by the summons; or
fail to attend from day to day unless excused, or released from further attendance, by the examiner.
Maximum penalty—300 penalty units or 5 years imprisonment.
A person appearing as a witness at an examination before an examiner must not—
when required under section 19 either to take an oath or make an affirmation—refuse or fail to comply with the requirement; or
refuse or fail to answer a question that he or she is required to answer by the examiner; or
refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.
Maximum penalty—300 penalty units or 5 years imprisonment.
Subsection (4) applies if—
a lawyer is required to answer a question or produce a document at an examination before an examiner; and
the answer to the question would disclose, or the document contains, a privileged communication made by or to the lawyer in his or her capacity as a lawyer.
The lawyer is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the lawyer complying with the requirement.
If the lawyer refuses to comply with the requirement, he or she must, if so required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made.
Maximum penalty—300 penalty units or 5 years imprisonment.
Subsection (8) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner.
Subsection (8) only applies if—
a person appearing as a witness at an examination before an examiner—
answers a question that he or she is required to answer by the examiner; or
produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and
for the production of a document that is, or forms part of, a record of an existing or past business, the document—
sets out details of earnings received by the person from his or her employment; and
does not set out any other information; and
before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.
The answer, or the document or thing, is not admissible in evidence against the person in a criminal proceeding, or a proceeding for the imposition of a penalty, other than—
confiscation proceedings; or
a proceeding in relation to—
in the case of an answer—the falsity of the answer; or
in the case of the production of a document—the falsity of any statement contained in the document.
Subsection (4) does not affect the law relating to legal professional privilege.
(sec.23-ssec.1) A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner must not— fail to attend as required by the summons; or fail to attend from day to day unless excused, or released from further attendance, by the examiner. Maximum penalty—300 penalty units or 5 years imprisonment.
(sec.23-ssec.2) A person appearing as a witness at an examination before an examiner must not— when required under section 19 either to take an oath or make an affirmation—refuse or fail to comply with the requirement; or refuse or fail to answer a question that he or she is required to answer by the examiner; or refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed. Maximum penalty—300 penalty units or 5 years imprisonment.
(sec.23-ssec.3) Subsection (4) applies if— a lawyer is required to answer a question or produce a document at an examination before an examiner; and the answer to the question would disclose, or the document contains, a privileged communication made by or to the lawyer in his or her capacity as a lawyer.
(sec.23-ssec.4) The lawyer is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the lawyer complying with the requirement.
(sec.23-ssec.5) If the lawyer refuses to comply with the requirement, he or she must, if so required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made. Maximum penalty—300 penalty units or 5 years imprisonment.
(sec.23-ssec.6) Subsection (8) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner.
(sec.23-ssec.7) Subsection (8) only applies if— a person appearing as a witness at an examination before an examiner— answers a question that he or she is required to answer by the examiner; or produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and for the production of a document that is, or forms part of, a record of an existing or past business, the document— sets out details of earnings received by the person from his or her employment; and does not set out any other information; and before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.
(sec.23-ssec.8) The answer, or the document or thing, is not admissible in evidence against the person in a criminal proceeding, or a proceeding for the imposition of a penalty, other than— confiscation proceedings; or a proceeding in relation to— in the case of an answer—the falsity of the answer; or in the case of the production of a document—the falsity of any statement contained in the document.
(sec.23-ssec.9) Subsection (4) does not affect the law relating to legal professional privilege.
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day unless excused, or released from further attendance, by the examiner.
(a) when required under section 19 either to take an oath or make an affirmation—refuse or fail to comply with the requirement; or
(b) refuse or fail to answer a question that he or she is required to answer by the examiner; or
(c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.
(a) a lawyer is required to answer a question or produce a document at an examination before an examiner; and
(b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the lawyer in his or her capacity as a lawyer.
(a) a person appearing as a witness at an examination before an examiner— (i) answers a question that he or she is required to answer by the examiner; or (ii) produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and
(i) answers a question that he or she is required to answer by the examiner; or
(ii) produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and
(b) for the production of a document that is, or forms part of, a record of an existing or past business, the document— (i) sets out details of earnings received by the person from his or her employment; and (ii) does not set out any other information; and
(i) sets out details of earnings received by the person from his or her employment; and
(ii) does not set out any other information; and
(c) before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.
(i) answers a question that he or she is required to answer by the examiner; or
(ii) produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and
(i) sets out details of earnings received by the person from his or her employment; and
(ii) does not set out any other information; and
(a) confiscation proceedings; or
(b) a proceeding in relation to— (i) in the case of an answer—the falsity of the answer; or (ii) in the case of the production of a document—the falsity of any statement contained in the document.
(i) in the case of an answer—the falsity of the answer; or
(ii) in the case of the production of a document—the falsity of any statement contained in the document.
(i) in the case of an answer—the falsity of the answer; or
(ii) in the case of the production of a document—the falsity of any statement contained in the document.
sec.24
Warrant for arrest of witness
sec.24 Warrant for arrest of witness
On application by an examiner, a judge of the Federal Court or the Supreme Court may issue a warrant for the apprehension of a person if the judge is satisfied by evidence on oath that there are reasonable grounds to believe—
that the person has been ordered, under section 28 , to deliver his or her passport to the examiner, whether or not the person has complied with the order, but is nevertheless likely to leave Australia for the purpose of avoiding giving evidence before the examiner; or
that a summons has been issued under section 19 (1) in relation to the person, and the person—
has absconded or is likely to abscond; or
is otherwise attempting, or is otherwise likely to attempt, to evade service of the summons; or
that the person has committed an offence under section 23 (1) or is likely to do so.
The warrant may be executed by any person to whom it is addressed and the person executing it has power to break into and enter any premises, vessel, aircraft or vehicle for the purpose of executing it.
A member of the Australian Federal Police can not execute the warrant unless he or she is also a member of the staff of the ACC.
The warrant may be executed even if the warrant is not at the time in the possession of the person executing it.
A person executing the warrant may only use the reasonable force that is necessary for the execution.
If a person is apprehended under the warrant, he or she must be brought, as soon as practicable, before a judge of the Federal Court or the Supreme Court.
The judge may—
admit the person to bail, with the security the judge thinks fit, on the conditions he or she thinks necessary to ensure the appearance of the person as a witness before the examiner; or
order the continued detention of the person for the purposes of ensuring his or her appearance as a witness before the examiner; or
order the release of the person.
If a person is under detention under this section, he or she must—
within 14 days after he or she was brought, or last brought, before a judge of the Federal Court or the Supreme Court under this section; or
within the shorter or longer time as a judge has fixed on the last previous appearance of the person before a judge under this section;
be again brought before a judge.
The judge may then exercise any of the powers of a judge under subsection (7) .
In this section—
Australia includes the external Territories.
(sec.24-ssec.1) On application by an examiner, a judge of the Federal Court or the Supreme Court may issue a warrant for the apprehension of a person if the judge is satisfied by evidence on oath that there are reasonable grounds to believe— that the person has been ordered, under section 28 , to deliver his or her passport to the examiner, whether or not the person has complied with the order, but is nevertheless likely to leave Australia for the purpose of avoiding giving evidence before the examiner; or that a summons has been issued under section 19 (1) in relation to the person, and the person— has absconded or is likely to abscond; or is otherwise attempting, or is otherwise likely to attempt, to evade service of the summons; or that the person has committed an offence under section 23 (1) or is likely to do so.
(sec.24-ssec.2) The warrant may be executed by any person to whom it is addressed and the person executing it has power to break into and enter any premises, vessel, aircraft or vehicle for the purpose of executing it.
(sec.24-ssec.3) A member of the Australian Federal Police can not execute the warrant unless he or she is also a member of the staff of the ACC.
(sec.24-ssec.4) The warrant may be executed even if the warrant is not at the time in the possession of the person executing it.
(sec.24-ssec.5) A person executing the warrant may only use the reasonable force that is necessary for the execution.
(sec.24-ssec.6) If a person is apprehended under the warrant, he or she must be brought, as soon as practicable, before a judge of the Federal Court or the Supreme Court.
(sec.24-ssec.7) The judge may— admit the person to bail, with the security the judge thinks fit, on the conditions he or she thinks necessary to ensure the appearance of the person as a witness before the examiner; or order the continued detention of the person for the purposes of ensuring his or her appearance as a witness before the examiner; or order the release of the person.
(sec.24-ssec.8) If a person is under detention under this section, he or she must— within 14 days after he or she was brought, or last brought, before a judge of the Federal Court or the Supreme Court under this section; or within the shorter or longer time as a judge has fixed on the last previous appearance of the person before a judge under this section; be again brought before a judge.
(sec.24-ssec.9) The judge may then exercise any of the powers of a judge under subsection (7) .
(sec.24-ssec.10) In this section— Australia includes the external Territories.
(a) that the person has been ordered, under section 28 , to deliver his or her passport to the examiner, whether or not the person has complied with the order, but is nevertheless likely to leave Australia for the purpose of avoiding giving evidence before the examiner; or
(b) that a summons has been issued under section 19 (1) in relation to the person, and the person— (i) has absconded or is likely to abscond; or (ii) is otherwise attempting, or is otherwise likely to attempt, to evade service of the summons; or
(i) has absconded or is likely to abscond; or
(ii) is otherwise attempting, or is otherwise likely to attempt, to evade service of the summons; or
(c) that the person has committed an offence under section 23 (1) or is likely to do so.
(i) has absconded or is likely to abscond; or
(ii) is otherwise attempting, or is otherwise likely to attempt, to evade service of the summons; or
(a) admit the person to bail, with the security the judge thinks fit, on the conditions he or she thinks necessary to ensure the appearance of the person as a witness before the examiner; or
(b) order the continued detention of the person for the purposes of ensuring his or her appearance as a witness before the examiner; or
(c) order the release of the person.
(a) within 14 days after he or she was brought, or last brought, before a judge of the Federal Court or the Supreme Court under this section; or
(b) within the shorter or longer time as a judge has fixed on the last previous appearance of the person before a judge under this section;
sec.25
False or misleading evidence
sec.25 False or misleading evidence
A person must not, at an examination before an examiner, give evidence that the person knows is false or misleading in a material particular.
Maximum penalty—300 penalty units or 5 years imprisonment.
sec.26
Protection of witnesses from harm or intimidation
sec.26 Protection of witnesses from harm or intimidation
This section applies if it appears to an examiner that, because of the fact that a person—
is to appear, is appearing or has appeared at an examination before the examiner to give evidence or to produce a document or thing; or
proposes to give or has given information, or proposes to produce or has produced a document or thing, to the ACC otherwise than at an examination before the examiner;
the safety of the person may be prejudiced or the person may be subjected to intimidation or harassment.
The examiner may make the arrangements (including arrangements with the State Minister or with members of the Australian Federal Police or of the Queensland Police Service) that are necessary to avoid prejudice to the safety of the person, or to protect the person from intimidation or harassment.
(sec.26-ssec.1) This section applies if it appears to an examiner that, because of the fact that a person— is to appear, is appearing or has appeared at an examination before the examiner to give evidence or to produce a document or thing; or proposes to give or has given information, or proposes to produce or has produced a document or thing, to the ACC otherwise than at an examination before the examiner; the safety of the person may be prejudiced or the person may be subjected to intimidation or harassment.
(sec.26-ssec.2) The examiner may make the arrangements (including arrangements with the State Minister or with members of the Australian Federal Police or of the Queensland Police Service) that are necessary to avoid prejudice to the safety of the person, or to protect the person from intimidation or harassment.
(a) is to appear, is appearing or has appeared at an examination before the examiner to give evidence or to produce a document or thing; or
(b) proposes to give or has given information, or proposes to produce or has produced a document or thing, to the ACC otherwise than at an examination before the examiner;
sec.27
Legal protection of examiners, counsel and witnesses
sec.27 Legal protection of examiners, counsel and witnesses
An examiner has, in the performance of his or her functions or the exercise of his or her powers as an examiner in relation to an examination before the examiner, the same protection and immunity as a justice of the High Court.
A lawyer assisting the ACC or an examiner or representing a person at an examination before an examiner has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
Subject to this Act, a person summoned to attend or appearing before an examiner as a witness has the same protection as a witness in proceedings in the High Court.
(sec.27-ssec.1) An examiner has, in the performance of his or her functions or the exercise of his or her powers as an examiner in relation to an examination before the examiner, the same protection and immunity as a justice of the High Court.
(sec.27-ssec.2) A lawyer assisting the ACC or an examiner or representing a person at an examination before an examiner has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
(sec.27-ssec.3) Subject to this Act, a person summoned to attend or appearing before an examiner as a witness has the same protection as a witness in proceedings in the High Court.
sec.28
Order for delivery to examiner of passport of witness
sec.28 Order for delivery to examiner of passport of witness
Subsection (2) applies if, on application by an examiner, a judge of the Federal Court sitting in chambers is satisfied by evidence on oath that—
in connection with a special ACC operation/investigation, a summons has been issued under this Act requiring a person to appear before an examiner at an examination (whether or not the summons has been served), or a person has appeared before an examiner at an examination, to give evidence or to produce documents or other things; and
there are reasonable grounds for believing that the person may be able to give to the examiner evidence or further evidence that is, or to produce to the examiner documents or other things or further documents or other things that are, relevant to the special ACC operation/investigation and could be of particular significance to the special ACC operation/investigation; and
there are reasonable grounds for suspecting that the person intends to leave Australia and has in his or her possession, custody or control a passport issued to him or her.
The judge may make an order requiring the person to appear before a judge of the Federal Court on a date, and at a time and place, specified in the order to show cause why he or she should not be ordered to deliver the passport to the examiner.
If a person appears before a judge of the Federal Court under an order made under subsection (2) , the judge may, if he or she thinks fit, make an order—
requiring the person to deliver to the examiner any passport issued to him or her that is in his or her possession, custody or control; and
authorising the examiner to retain the passport until the expiration of the period, not exceeding one month, specified in the order.
A judge of the Federal Court may, on application by the examiner, extend for a further period (not exceeding 1 month) or further periods (not exceeding 1 month in each case) the period for which the examiner is authorised to retain a passport under an order made under subsection (3) , but so that the total period for which the examiner is authorised to retain the passport does not exceed 3 months.
A judge of the Federal Court may, at any time while the examiner is authorised under an order made under this section to retain a passport issued to a person, on application made by the person, revoke the order and, if the order is revoked, the examiner must immediately return the passport to the person.
In this section—
Australia includes the external Territories.
(sec.28-ssec.1) Subsection (2) applies if, on application by an examiner, a judge of the Federal Court sitting in chambers is satisfied by evidence on oath that— in connection with a special ACC operation/investigation, a summons has been issued under this Act requiring a person to appear before an examiner at an examination (whether or not the summons has been served), or a person has appeared before an examiner at an examination, to give evidence or to produce documents or other things; and there are reasonable grounds for believing that the person may be able to give to the examiner evidence or further evidence that is, or to produce to the examiner documents or other things or further documents or other things that are, relevant to the special ACC operation/investigation and could be of particular significance to the special ACC operation/investigation; and there are reasonable grounds for suspecting that the person intends to leave Australia and has in his or her possession, custody or control a passport issued to him or her.
(sec.28-ssec.2) The judge may make an order requiring the person to appear before a judge of the Federal Court on a date, and at a time and place, specified in the order to show cause why he or she should not be ordered to deliver the passport to the examiner.
(sec.28-ssec.3) If a person appears before a judge of the Federal Court under an order made under subsection (2) , the judge may, if he or she thinks fit, make an order— requiring the person to deliver to the examiner any passport issued to him or her that is in his or her possession, custody or control; and authorising the examiner to retain the passport until the expiration of the period, not exceeding one month, specified in the order.
(sec.28-ssec.4) A judge of the Federal Court may, on application by the examiner, extend for a further period (not exceeding 1 month) or further periods (not exceeding 1 month in each case) the period for which the examiner is authorised to retain a passport under an order made under subsection (3) , but so that the total period for which the examiner is authorised to retain the passport does not exceed 3 months.
(sec.28-ssec.5) A judge of the Federal Court may, at any time while the examiner is authorised under an order made under this section to retain a passport issued to a person, on application made by the person, revoke the order and, if the order is revoked, the examiner must immediately return the passport to the person.
(sec.28-ssec.6) In this section— Australia includes the external Territories.
(a) in connection with a special ACC operation/investigation, a summons has been issued under this Act requiring a person to appear before an examiner at an examination (whether or not the summons has been served), or a person has appeared before an examiner at an examination, to give evidence or to produce documents or other things; and
(b) there are reasonable grounds for believing that the person may be able to give to the examiner evidence or further evidence that is, or to produce to the examiner documents or other things or further documents or other things that are, relevant to the special ACC operation/investigation and could be of particular significance to the special ACC operation/investigation; and
(c) there are reasonable grounds for suspecting that the person intends to leave Australia and has in his or her possession, custody or control a passport issued to him or her.
(a) requiring the person to deliver to the examiner any passport issued to him or her that is in his or her possession, custody or control; and
(b) authorising the examiner to retain the passport until the expiration of the period, not exceeding one month, specified in the order.
pt.4
Search warrants
Search warrants
sec.29
Search warrants
sec.29 Search warrants
An eligible person may apply to an issuing officer for the issue of a warrant under subsection (2) if—
the eligible person has reasonable grounds for suspecting that, on a particular day (the relevant day ), being the day on which, or a particular day within 1 month after the day on which, the application is made, there may be, on any land or on or in any premises, vessel, aircraft or vehicle, a thing of a particular kind connected with a special ACC operation/investigation (a thing of the relevant kind ); and
the eligible person believes on reasonable grounds that, if a summons were issued for the production of the thing, the thing might be concealed, lost, mutilated or destroyed.
If an application under subsection (1) is made, the issuing officer may issue a warrant authorising a person named in the warrant (the authorised person ), with the assistance the authorised person thinks necessary and if necessary by force—
to enter the land or on or into the premises, vessel, aircraft or vehicle; and
to search the land, premises, vessel, aircraft or vehicle for a thing of the relevant kind; and
to seize any thing of the relevant kind found on the land or on or in the premises, vessel, aircraft or vehicle; and
deliver a thing so seized to any person participating in the special ACC operation/investigation.
A member of the Australian Federal Police can not be an authorised person unless he or she is also a member of the staff of the ACC.
An issuing officer must not issue a warrant under subsection (2) unless—
an affidavit has been given to him or her setting out the grounds on which the issue of the warrant is being sought; and
the applicant, or some other person, has given to the issuing officer, either orally or by affidavit, the further information, if any, the issuing officer requires concerning the grounds on which the issue of the warrant is being sought; and
the issuing officer is satisfied that there are reasonable grounds for issuing the warrant.
If an issuing officer issues a warrant under subsection (2) , he or she must state on the affidavit given to him or her as mentioned in subsection (4) (a) which of the grounds specified in that affidavit he or she has relied on to justify the issue of the warrant and particulars of any other grounds relied on by him or her to justify the issue of the warrant.
A warrant issued under this section must—
include a statement of the purpose for which the warrant is issued, which must include a reference to the special ACC operation/investigation and with which the thing of the relevant kind is connected; and
state whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and
include a description of the kind of thing authorised to be seized; and
specify a date, not being later than 1 month after the date of issue of the warrant, on which the warrant ceases to have effect.
A warrant issued under this section may be executed, in accordance with its terms, at any time during the period commencing on the relevant day and ending on the date specified in the warrant as the date on which the warrant ceases to have effect.
A person executing a warrant issued under this section may only use the reasonable force necessary for the execution.
Subsection (10) applies if, in the course of searching, under a warrant issued under this section, for a thing of the relevant kind, the person executing the warrant—
finds a thing that he or she believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an offence against a law of the Commonwealth or of a State, or of a Territory; and
believes on reasonable grounds that it is necessary to seize the thing to prevent its concealment, loss, mutilation or destruction, or its use in committing the offence.
The person may seize the thing and, if he or she does so, the thing is to be taken, for the purposes of this Act, to have been seized under the warrant.
If a thing is seized under a warrant issued under this section—
the head of the special ACC operation/investigation may retain the thing if, and for so long as, retention of the thing by the head of the special ACC operation/investigation is reasonably necessary for the purposes of the special ACC operation/investigation to which the thing is relevant; and
if the retention of the thing by the head of the special ACC operation/investigation is not, or ceases to be, reasonably necessary for the purposes mentioned in paragraph (a) , a person participating in the special ACC operation/investigation must cause the thing to be delivered to—
if the thing may be used in evidence in proceedings of a kind referred to in subsection (15) —the authority or person responsible for taking the proceedings; or
if subparagraph (i) does not apply—the person who appears to the person participating in the special ACC operation/investigation to be entitled to the possession of the thing;
unless the CEO has given the thing to the Attorney-General of the Commonwealth or of a State, or to a law enforcement agency, or to another person or authority, under section 34 (1) (a) , (b) or (c) .
A person participating in the special ACC operation/investigation may, instead of delivering a thing under subsection (11) (b) (ii) , deliver the thing to the Attorney-General of the Commonwealth or of a State, or to a law enforcement agency, for the purpose of assisting in the investigation of criminal offences, if the person participating in the special ACC operation/investigation is satisfied that the thing is likely to be useful for that purpose.
Nothing in this section affects a right of a person to apply for, or the power of a person to issue, a warrant, being a right or power existing otherwise than by virtue of this section.
Subsection (10) does not limit a power under the Police Powers and Responsibilities Act 2000 , section 196 .
Without limiting subsection (1) (a) , a reference in this section to a thing connected with a special ACC operation/investigation, includes a reference to a thing that may be used in evidence in proceedings for the taking, by or on behalf of the State, the Commonwealth, another State or a Territory, of civil remedies for a matter connected with, or arising out of, an offence to which the special ACC operation/investigation relates.
In this section—
thing includes a document.
s 29 amd 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84 , 86 )
(sec.29-ssec.1) An eligible person may apply to an issuing officer for the issue of a warrant under subsection (2) if— the eligible person has reasonable grounds for suspecting that, on a particular day (the relevant day ), being the day on which, or a particular day within 1 month after the day on which, the application is made, there may be, on any land or on or in any premises, vessel, aircraft or vehicle, a thing of a particular kind connected with a special ACC operation/investigation (a thing of the relevant kind ); and the eligible person believes on reasonable grounds that, if a summons were issued for the production of the thing, the thing might be concealed, lost, mutilated or destroyed.
(sec.29-ssec.2) If an application under subsection (1) is made, the issuing officer may issue a warrant authorising a person named in the warrant (the authorised person ), with the assistance the authorised person thinks necessary and if necessary by force— to enter the land or on or into the premises, vessel, aircraft or vehicle; and to search the land, premises, vessel, aircraft or vehicle for a thing of the relevant kind; and to seize any thing of the relevant kind found on the land or on or in the premises, vessel, aircraft or vehicle; and deliver a thing so seized to any person participating in the special ACC operation/investigation.
(sec.29-ssec.3) A member of the Australian Federal Police can not be an authorised person unless he or she is also a member of the staff of the ACC.
(sec.29-ssec.4) An issuing officer must not issue a warrant under subsection (2) unless— an affidavit has been given to him or her setting out the grounds on which the issue of the warrant is being sought; and the applicant, or some other person, has given to the issuing officer, either orally or by affidavit, the further information, if any, the issuing officer requires concerning the grounds on which the issue of the warrant is being sought; and the issuing officer is satisfied that there are reasonable grounds for issuing the warrant.
(sec.29-ssec.5) If an issuing officer issues a warrant under subsection (2) , he or she must state on the affidavit given to him or her as mentioned in subsection (4) (a) which of the grounds specified in that affidavit he or she has relied on to justify the issue of the warrant and particulars of any other grounds relied on by him or her to justify the issue of the warrant.
(sec.29-ssec.6) A warrant issued under this section must— include a statement of the purpose for which the warrant is issued, which must include a reference to the special ACC operation/investigation and with which the thing of the relevant kind is connected; and state whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and include a description of the kind of thing authorised to be seized; and specify a date, not being later than 1 month after the date of issue of the warrant, on which the warrant ceases to have effect.
(sec.29-ssec.7) A warrant issued under this section may be executed, in accordance with its terms, at any time during the period commencing on the relevant day and ending on the date specified in the warrant as the date on which the warrant ceases to have effect.
(sec.29-ssec.8) A person executing a warrant issued under this section may only use the reasonable force necessary for the execution.
(sec.29-ssec.9) Subsection (10) applies if, in the course of searching, under a warrant issued under this section, for a thing of the relevant kind, the person executing the warrant— finds a thing that he or she believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an offence against a law of the Commonwealth or of a State, or of a Territory; and believes on reasonable grounds that it is necessary to seize the thing to prevent its concealment, loss, mutilation or destruction, or its use in committing the offence.
(sec.29-ssec.10) The person may seize the thing and, if he or she does so, the thing is to be taken, for the purposes of this Act, to have been seized under the warrant.
(sec.29-ssec.11) If a thing is seized under a warrant issued under this section— the head of the special ACC operation/investigation may retain the thing if, and for so long as, retention of the thing by the head of the special ACC operation/investigation is reasonably necessary for the purposes of the special ACC operation/investigation to which the thing is relevant; and if the retention of the thing by the head of the special ACC operation/investigation is not, or ceases to be, reasonably necessary for the purposes mentioned in paragraph (a) , a person participating in the special ACC operation/investigation must cause the thing to be delivered to— if the thing may be used in evidence in proceedings of a kind referred to in subsection (15) —the authority or person responsible for taking the proceedings; or if subparagraph (i) does not apply—the person who appears to the person participating in the special ACC operation/investigation to be entitled to the possession of the thing; unless the CEO has given the thing to the Attorney-General of the Commonwealth or of a State, or to a law enforcement agency, or to another person or authority, under section 34 (1) (a) , (b) or (c) .
(sec.29-ssec.12) A person participating in the special ACC operation/investigation may, instead of delivering a thing under subsection (11) (b) (ii) , deliver the thing to the Attorney-General of the Commonwealth or of a State, or to a law enforcement agency, for the purpose of assisting in the investigation of criminal offences, if the person participating in the special ACC operation/investigation is satisfied that the thing is likely to be useful for that purpose.
(sec.29-ssec.13) Nothing in this section affects a right of a person to apply for, or the power of a person to issue, a warrant, being a right or power existing otherwise than by virtue of this section.
(sec.29-ssec.14) Subsection (10) does not limit a power under the Police Powers and Responsibilities Act 2000 , section 196 .
(sec.29-ssec.15) Without limiting subsection (1) (a) , a reference in this section to a thing connected with a special ACC operation/investigation, includes a reference to a thing that may be used in evidence in proceedings for the taking, by or on behalf of the State, the Commonwealth, another State or a Territory, of civil remedies for a matter connected with, or arising out of, an offence to which the special ACC operation/investigation relates.
(sec.29-ssec.16) In this section— thing includes a document.
(a) the eligible person has reasonable grounds for suspecting that, on a particular day (the relevant day ), being the day on which, or a particular day within 1 month after the day on which, the application is made, there may be, on any land or on or in any premises, vessel, aircraft or vehicle, a thing of a particular kind connected with a special ACC operation/investigation (a thing of the relevant kind ); and
(b) the eligible person believes on reasonable grounds that, if a summons were issued for the production of the thing, the thing might be concealed, lost, mutilated or destroyed.
(a) to enter the land or on or into the premises, vessel, aircraft or vehicle; and
(b) to search the land, premises, vessel, aircraft or vehicle for a thing of the relevant kind; and
(c) to seize any thing of the relevant kind found on the land or on or in the premises, vessel, aircraft or vehicle; and
(d) deliver a thing so seized to any person participating in the special ACC operation/investigation.
(a) an affidavit has been given to him or her setting out the grounds on which the issue of the warrant is being sought; and
(b) the applicant, or some other person, has given to the issuing officer, either orally or by affidavit, the further information, if any, the issuing officer requires concerning the grounds on which the issue of the warrant is being sought; and
(c) the issuing officer is satisfied that there are reasonable grounds for issuing the warrant.
(a) include a statement of the purpose for which the warrant is issued, which must include a reference to the special ACC operation/investigation and with which the thing of the relevant kind is connected; and
(b) state whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(c) include a description of the kind of thing authorised to be seized; and
(d) specify a date, not being later than 1 month after the date of issue of the warrant, on which the warrant ceases to have effect.
(a) finds a thing that he or she believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an offence against a law of the Commonwealth or of a State, or of a Territory; and
(b) believes on reasonable grounds that it is necessary to seize the thing to prevent its concealment, loss, mutilation or destruction, or its use in committing the offence.
(a) the head of the special ACC operation/investigation may retain the thing if, and for so long as, retention of the thing by the head of the special ACC operation/investigation is reasonably necessary for the purposes of the special ACC operation/investigation to which the thing is relevant; and
(b) if the retention of the thing by the head of the special ACC operation/investigation is not, or ceases to be, reasonably necessary for the purposes mentioned in paragraph (a) , a person participating in the special ACC operation/investigation must cause the thing to be delivered to— (i) if the thing may be used in evidence in proceedings of a kind referred to in subsection (15) —the authority or person responsible for taking the proceedings; or (ii) if subparagraph (i) does not apply—the person who appears to the person participating in the special ACC operation/investigation to be entitled to the possession of the thing; unless the CEO has given the thing to the Attorney-General of the Commonwealth or of a State, or to a law enforcement agency, or to another person or authority, under section 34 (1) (a) , (b) or (c) .
(i) if the thing may be used in evidence in proceedings of a kind referred to in subsection (15) —the authority or person responsible for taking the proceedings; or
(ii) if subparagraph (i) does not apply—the person who appears to the person participating in the special ACC operation/investigation to be entitled to the possession of the thing;
(i) if the thing may be used in evidence in proceedings of a kind referred to in subsection (15) —the authority or person responsible for taking the proceedings; or
(ii) if subparagraph (i) does not apply—the person who appears to the person participating in the special ACC operation/investigation to be entitled to the possession of the thing;
sec.30
Application by telephone for search warrants
sec.30 Application by telephone for search warrants
If, because of circumstances of urgency, an eligible person considers it necessary to do so, the eligible person may make application by telephone for a warrant under section 29 .
Before so making application, the eligible person must prepare an affidavit that sets out the grounds on which the issue of the warrant is being sought, but may, if it is necessary to do so, make the application before the affidavit has been sworn.
If an issuing officer issues a warrant under section 29 on an application made by telephone, he or she must—
complete and sign the warrant; and
inform the eligible person who made the application of the terms of the warrant and the date on which and the time at which it was signed; and
record on the warrant his or her reasons for issuing the warrant; and
send a copy of the warrant to the CEO.
If a warrant is issued under section 29 on an application made by telephone—
a member of the staff of the ACC or a member of the Queensland Police Service may complete a form of warrant in the terms indicated by the issuing officer under subsection (3) ; and
if a form of warrant is so completed, the member must write on it the name of the issuing officer who issued the warrant and the date on which and the time at which it was signed.
If a person completes a form of warrant under subsection (4) , the person must, not later than the day next following the date of expiry of the warrant, send to the issuing officer who signed the warrant the form of warrant completed by him or her and the affidavit duly sworn in connection with the warrant.
On receipt of the documents referred to in subsection (5) the issuing officer must attach them to the warrant signed by him or her and deal with the documents in the way in which he or she would have dealt with the affidavit if the application for the warrant had been made to him or her under section 29 .
A form of warrant duly completed under subsection (4) is to be taken to be a warrant issued under section 29 .
(sec.30-ssec.1) If, because of circumstances of urgency, an eligible person considers it necessary to do so, the eligible person may make application by telephone for a warrant under section 29 .
(sec.30-ssec.2) Before so making application, the eligible person must prepare an affidavit that sets out the grounds on which the issue of the warrant is being sought, but may, if it is necessary to do so, make the application before the affidavit has been sworn.
(sec.30-ssec.3) If an issuing officer issues a warrant under section 29 on an application made by telephone, he or she must— complete and sign the warrant; and inform the eligible person who made the application of the terms of the warrant and the date on which and the time at which it was signed; and record on the warrant his or her reasons for issuing the warrant; and send a copy of the warrant to the CEO.
(sec.30-ssec.4) If a warrant is issued under section 29 on an application made by telephone— a member of the staff of the ACC or a member of the Queensland Police Service may complete a form of warrant in the terms indicated by the issuing officer under subsection (3) ; and if a form of warrant is so completed, the member must write on it the name of the issuing officer who issued the warrant and the date on which and the time at which it was signed.
(sec.30-ssec.5) If a person completes a form of warrant under subsection (4) , the person must, not later than the day next following the date of expiry of the warrant, send to the issuing officer who signed the warrant the form of warrant completed by him or her and the affidavit duly sworn in connection with the warrant.
(sec.30-ssec.6) On receipt of the documents referred to in subsection (5) the issuing officer must attach them to the warrant signed by him or her and deal with the documents in the way in which he or she would have dealt with the affidavit if the application for the warrant had been made to him or her under section 29 .
(sec.30-ssec.7) A form of warrant duly completed under subsection (4) is to be taken to be a warrant issued under section 29 .
(a) complete and sign the warrant; and
(b) inform the eligible person who made the application of the terms of the warrant and the date on which and the time at which it was signed; and
(c) record on the warrant his or her reasons for issuing the warrant; and
(d) send a copy of the warrant to the CEO.
(a) a member of the staff of the ACC or a member of the Queensland Police Service may complete a form of warrant in the terms indicated by the issuing officer under subsection (3) ; and
(b) if a form of warrant is so completed, the member must write on it the name of the issuing officer who issued the warrant and the date on which and the time at which it was signed.
pt.5
Performance of functions and exercise of powers
Performance of functions and exercise of powers
sec.31
Consent of Board may be needed before functions can be performed
sec.31 Consent of Board may be needed before functions can be performed
The conferral of a function on a Commonwealth body or person by this Act is subject to any provision of the ACC Act that requires the consent of the Board before the function can be performed.
sec.32
Functions not affected by State laws
sec.32 Functions not affected by State laws
A Commonwealth body or person is not precluded by any law of the State from performing a function conferred by this Act.
sec.33
Extent to which functions are conferred
sec.33 Extent to which functions are conferred
This Act does not purport to confer a duty on a Commonwealth body or person to perform a function, or to exercise a power, if the conferral of the duty would be beyond the legislative power of the Parliament of the State.
This section does not limit the operation of section 35 or the Acts Interpretation Act 1954 , section 9 .
(sec.33-ssec.1) This Act does not purport to confer a duty on a Commonwealth body or person to perform a function, or to exercise a power, if the conferral of the duty would be beyond the legislative power of the Parliament of the State.
(sec.33-ssec.2) This section does not limit the operation of section 35 or the Acts Interpretation Act 1954 , section 9 .
sec.34
Performance of functions
sec.34 Performance of functions
If the ACC, in carrying out an ACC operation/investigation, obtains evidence of an offence against a law of the Commonwealth or of a State or Territory, being evidence that would be admissible in a prosecution for the offence, the CEO must assemble the evidence and give it to—
the Attorney-General of the Commonwealth or the State, as the case requires; or
the relevant law enforcement agency; or
any person or authority (other than a law enforcement agency) who is authorised by or under a law of the Commonwealth or of the State or Territory to prosecute the offence.
If the ACC, in carrying out an ACC operation/investigation, obtains evidence that would be admissible in confiscation proceedings, the CEO may assemble the evidence and give it to—
the Attorney-General of the Commonwealth or the relevant State, as the case requires; or
a relevant law enforcement agency; or
any person or authority (other than a law enforcement agency) who is authorised to commence the confiscation proceedings.
If, as a result of the performance of any of the ACC’s functions, the Board considers that 1 of the following recommendations should be made to the Commonwealth Minister or to the appropriate State Minister of a participating State, the Board may make the recommendation to the Commonwealth Minister or appropriate State Minister—
for reform of the law relating to relevant offences, including—
evidence and procedure applicable to the trials of relevant offences; and
relevant offences in relation to, or involving, corporations; and
taxation, banking and financial frauds; and
reception by Australian courts of evidence obtained in foreign countries as to relevant offences; and
maintenance and preservation of taxation, banking and financial records;
for reform of administrative practices;
for reform of administration of the courts in relation to trials of relevant offences.
If the ACC has obtained particular information or intelligence in the course of performing 1 or more of its functions, nothing in this Act is to be taken to prevent the ACC from making use of the information or intelligence in the performance of any of its other functions.
(sec.34-ssec.1) If the ACC, in carrying out an ACC operation/investigation, obtains evidence of an offence against a law of the Commonwealth or of a State or Territory, being evidence that would be admissible in a prosecution for the offence, the CEO must assemble the evidence and give it to— the Attorney-General of the Commonwealth or the State, as the case requires; or the relevant law enforcement agency; or any person or authority (other than a law enforcement agency) who is authorised by or under a law of the Commonwealth or of the State or Territory to prosecute the offence.
(sec.34-ssec.2) If the ACC, in carrying out an ACC operation/investigation, obtains evidence that would be admissible in confiscation proceedings, the CEO may assemble the evidence and give it to— the Attorney-General of the Commonwealth or the relevant State, as the case requires; or a relevant law enforcement agency; or any person or authority (other than a law enforcement agency) who is authorised to commence the confiscation proceedings.
(sec.34-ssec.3) If, as a result of the performance of any of the ACC’s functions, the Board considers that 1 of the following recommendations should be made to the Commonwealth Minister or to the appropriate State Minister of a participating State, the Board may make the recommendation to the Commonwealth Minister or appropriate State Minister— for reform of the law relating to relevant offences, including— evidence and procedure applicable to the trials of relevant offences; and relevant offences in relation to, or involving, corporations; and taxation, banking and financial frauds; and reception by Australian courts of evidence obtained in foreign countries as to relevant offences; and maintenance and preservation of taxation, banking and financial records; for reform of administrative practices; for reform of administration of the courts in relation to trials of relevant offences.
(sec.34-ssec.4) If the ACC has obtained particular information or intelligence in the course of performing 1 or more of its functions, nothing in this Act is to be taken to prevent the ACC from making use of the information or intelligence in the performance of any of its other functions.
(a) the Attorney-General of the Commonwealth or the State, as the case requires; or
(b) the relevant law enforcement agency; or
(c) any person or authority (other than a law enforcement agency) who is authorised by or under a law of the Commonwealth or of the State or Territory to prosecute the offence.
(a) the Attorney-General of the Commonwealth or the relevant State, as the case requires; or
(b) a relevant law enforcement agency; or
(c) any person or authority (other than a law enforcement agency) who is authorised to commence the confiscation proceedings.
(a) for reform of the law relating to relevant offences, including— (i) evidence and procedure applicable to the trials of relevant offences; and (ii) relevant offences in relation to, or involving, corporations; and (iii) taxation, banking and financial frauds; and (iv) reception by Australian courts of evidence obtained in foreign countries as to relevant offences; and (v) maintenance and preservation of taxation, banking and financial records;
(i) evidence and procedure applicable to the trials of relevant offences; and
(ii) relevant offences in relation to, or involving, corporations; and
(iii) taxation, banking and financial frauds; and
(iv) reception by Australian courts of evidence obtained in foreign countries as to relevant offences; and
(v) maintenance and preservation of taxation, banking and financial records;
(b) for reform of administrative practices;
(c) for reform of administration of the courts in relation to trials of relevant offences.
(i) evidence and procedure applicable to the trials of relevant offences; and
(ii) relevant offences in relation to, or involving, corporations; and
(iii) taxation, banking and financial frauds; and
(iv) reception by Australian courts of evidence obtained in foreign countries as to relevant offences; and
(v) maintenance and preservation of taxation, banking and financial records;
sec.35
Functions of federal judicial officers
sec.35 Functions of federal judicial officers
A function conferred on a federal judicial officer by this Act is conferred on the federal judicial officer in a personal capacity and not as a court or a member of a court.
The federal judicial officer need not accept the function conferred.
Anything done or made by a federal judicial officer under this Act has effect only by virtue of this Act and is not to be taken by implication to be done or made by a court.
A federal judicial officer performing a function under this Act has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the federal judicial officer is a member).
In this section—
federal judicial officer means a judge of the Federal Court or a Federal Magistrate.
(sec.35-ssec.1) A function conferred on a federal judicial officer by this Act is conferred on the federal judicial officer in a personal capacity and not as a court or a member of a court.
(sec.35-ssec.2) The federal judicial officer need not accept the function conferred.
(sec.35-ssec.3) Anything done or made by a federal judicial officer under this Act has effect only by virtue of this Act and is not to be taken by implication to be done or made by a court.
(sec.35-ssec.4) A federal judicial officer performing a function under this Act has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the federal judicial officer is a member).
(sec.35-ssec.5) In this section— federal judicial officer means a judge of the Federal Court or a Federal Magistrate.
sec.36
Limitation on challenge to Board determination
sec.36 Limitation on challenge to Board determination
If—
an ACC State intelligence operation is determined by the Board to be a special operation; or
an ACC State investigation is determined by the Board to be a special investigation;
then, except in a proceeding instituted by the Attorney-General of the Commonwealth or of a State, any act or thing done by the ACC because of that determination must not be challenged, reviewed, quashed or called in question in any court of the State on the ground that the determination was not lawfully made.
(a) an ACC State intelligence operation is determined by the Board to be a special operation; or
(b) an ACC State investigation is determined by the Board to be a special investigation;
sec.37
Cooperation with law enforcement agencies and coordination with overseas authorities
sec.37 Cooperation with law enforcement agencies and coordination with overseas authorities
In performing its functions under this Act, the ACC must, so far as is practicable, work in cooperation with law enforcement agencies.
In performing its functions under this Act, the ACC may coordinate its activities with the activities of authorities and persons in other countries performing functions similar to functions of the ACC.
(sec.37-ssec.1) In performing its functions under this Act, the ACC must, so far as is practicable, work in cooperation with law enforcement agencies.
(sec.37-ssec.2) In performing its functions under this Act, the ACC may coordinate its activities with the activities of authorities and persons in other countries performing functions similar to functions of the ACC.
sec.38
Incidental powers of ACC
sec.38 Incidental powers of ACC
The ACC has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its functions under this Act, and any specific powers conferred on the ACC by this Act are not to be taken to limit by implication the generality of this section.
pt.6
General
General
sec.39
Double jeopardy
sec.39 Double jeopardy
A person is not liable to be punished for an act or omission that is an offence under this Act if—
the act or omission is also an offence under the ACC Act ; and
the person has been punished for the offence under the ACC Act .
(a) the act or omission is also an offence under the ACC Act ; and
(b) the person has been punished for the offence under the ACC Act .
sec.40
Proceedings for an offence
sec.40 Proceedings for an offence
Subject to subsection (2) , a proceeding for an offence against this Act must be taken in a summary way under the Justices Act 1886 within the later of the following—
1 year after the offence is committed;
1 year after the commission of the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence.
A proceeding for an indictable offence may, at the election of the prosecution, be taken—
by way of summary proceedings under subsection (1) ; or
on indictment.
A proceeding against a person for an indictable offence must be before a magistrate if it is a proceeding—
for the summary conviction of the person; or
for an examination of witnesses in relation to the charge.
If a proceeding for an indictable offence is brought before a justice who is not a magistrate, jurisdiction is limited to taking or making a procedural action or order as defined under the Justices of the Peace and Commissioners for Declarations Act 1991 .
If the magistrate hearing a charge of an indictable offence considers the charge should be prosecuted on indictment, the magistrate—
must not decide the charge as a summary offence; and
must proceed by way of a committal proceeding.
If a magistrate acts under subsection (5) —
any plea of the person charged, made at the start of the proceeding, must be disregarded; and
any evidence brought in the proceeding before the magistrate decided to act under subsection (5) is taken to be evidence in the proceeding for the committal of the person for trial or sentence; and
before committing the person for trial or sentence, the magistrate must make a statement to the person under the Justices Act 1886 , section 104 (2) (b) .
The maximum penalty that may be imposed on a summary conviction of an indictable offence is 30 penalty units or 1 year’s imprisonment.
In this section—
indictable offence means an offence to which section 41 applies.
(sec.40-ssec.1) Subject to subsection (2) , a proceeding for an offence against this Act must be taken in a summary way under the Justices Act 1886 within the later of the following— 1 year after the offence is committed; 1 year after the commission of the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence.
(sec.40-ssec.2) A proceeding for an indictable offence may, at the election of the prosecution, be taken— by way of summary proceedings under subsection (1) ; or on indictment.
(sec.40-ssec.3) A proceeding against a person for an indictable offence must be before a magistrate if it is a proceeding— for the summary conviction of the person; or for an examination of witnesses in relation to the charge.
(sec.40-ssec.4) If a proceeding for an indictable offence is brought before a justice who is not a magistrate, jurisdiction is limited to taking or making a procedural action or order as defined under the Justices of the Peace and Commissioners for Declarations Act 1991 .
(sec.40-ssec.5) If the magistrate hearing a charge of an indictable offence considers the charge should be prosecuted on indictment, the magistrate— must not decide the charge as a summary offence; and must proceed by way of a committal proceeding.
(sec.40-ssec.6) If a magistrate acts under subsection (5) — any plea of the person charged, made at the start of the proceeding, must be disregarded; and any evidence brought in the proceeding before the magistrate decided to act under subsection (5) is taken to be evidence in the proceeding for the committal of the person for trial or sentence; and before committing the person for trial or sentence, the magistrate must make a statement to the person under the Justices Act 1886 , section 104 (2) (b) .
(sec.40-ssec.7) The maximum penalty that may be imposed on a summary conviction of an indictable offence is 30 penalty units or 1 year’s imprisonment.
(sec.40-ssec.8) In this section— indictable offence means an offence to which section 41 applies.
(a) 1 year after the offence is committed;
(b) 1 year after the commission of the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence.
(a) by way of summary proceedings under subsection (1) ; or
(b) on indictment.
(a) for the summary conviction of the person; or
(b) for an examination of witnesses in relation to the charge.
(a) must not decide the charge as a summary offence; and
(b) must proceed by way of a committal proceeding.
(a) any plea of the person charged, made at the start of the proceeding, must be disregarded; and
(b) any evidence brought in the proceeding before the magistrate decided to act under subsection (5) is taken to be evidence in the proceeding for the committal of the person for trial or sentence; and
(c) before committing the person for trial or sentence, the magistrate must make a statement to the person under the Justices Act 1886 , section 104 (2) (b) .
sec.41
Indictable offences
sec.41 Indictable offences
An offence against this Act punishable by at least 5 years imprisonment is a crime.
sec.42
Arrangements for Board to obtain information or intelligence
sec.42 Arrangements for Board to obtain information or intelligence
The State Minister may make an arrangement with the Commonwealth Minister for the Board to be given by the State, or an authority of the State, information or intelligence relating to relevant criminal activities.
sec.43
Administrative arrangements with the Commonwealth
sec.43 Administrative arrangements with the Commonwealth
The State Minister may make an arrangement with the Commonwealth Minister under which the State will, as agreed on under the arrangement, make available a person who is an officer or employee of the State or of an authority of the State or a member of the Queensland Police Service to perform services for the ACC.
sec.44
Judges to perform functions under the ACC Act
sec.44 Judges to perform functions under the ACC Act
A Supreme Court judge may perform functions conferred on the judge by section 22 , 23 or 31 of the ACC Act .
sec.45
Providing reports and information
sec.45 Providing reports and information
The chair of the Board must keep the Commonwealth Minister informed of the general conduct of the ACC in the performance of the ACC’s functions under this Act.
If the Commonwealth Minister requests the chair of the Board to give to him or her information about a specific matter relating to the ACC’s conduct in the performance of its functions under this Act, the chair must comply with the request.
Subject to subsection (4) , if the State Minister requests the chair of the Board to give to him or her information about a specific matter relating to the ACC’s conduct in the performance of its functions under this Act, the chair must comply with the request.
If the chair of the Board considers that disclosure of information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the chair must not provide the information under subsection (3) .
Subject to subsection (7) , the chair of the Board—
must, when requested by the Inter-Governmental Committee to give information to the Committee about a specific matter relating to an ACC operation/investigation that the ACC has conducted or is conducting, comply with the request; and
must when requested by the Inter-Governmental Committee to do so, and may at the other times the chair of the Board thinks appropriate, inform the Committee about the general conduct of the ACC in the performance of the ACC’s functions under this Act.
Subject to subsection (7) , the chair of the Board must give to the Inter-Governmental Committee, for transmission to the Governments represented on the Committee, a report of the findings of any special ACC operation/investigation conducted by the ACC.
The chair of the Board—
must not give to the Inter-Governmental Committee any matter the disclosure of which to members of the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies ( relevant matter ); and
if the findings of the ACC in an investigation include any relevant matter, must prepare a separate report in relation to the relevant matter and give that report to the State Minister.
The chair of the Board may include in a report given under subsection (6) a recommendation that the report be laid before the Legislative Assembly.
The CEO may give to a relevant authority any information that has come into the ACC’s possession under this Act and that is relevant to the activities of that agency or authority if—
it appears to the CEO to be appropriate to do so; and
to do so would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply.
The CEO may, whenever it appears to the CEO to be appropriate to do so, give to authorities and persons responsible for taking civil remedies by or on behalf of the Commonwealth, a State or a Territory, any information that has come into the ACC’s possession under this Act and that may be relevant for the purposes of so taking the remedies for matters connected with, or arising out of, offences against—
the laws of the Commonwealth; or
the laws of a State; or
the laws of a Territory.
If any information relating to the performance of the functions of an authority of the Commonwealth or a State or the Administration of a Territory comes into the ACC’s possession under this Act, the CEO may, if he or she considers it desirable to do so—
give that information to the authority or Administration; and
make any recommendations to the authority or Administration as to the performance of its functions that the CEO considers appropriate.
A report under this Act that sets out any finding that an offence has been committed, or makes any recommendation for the institution of a prosecution for an offence, must not be made available to the public unless the finding or recommendation is expressed to be based on evidence that would be admissible in the prosecution of a person for that offence.
The CEO may, whenever it appears to the CEO to be appropriate to do so, give to the Australian Security Intelligence Organisation any information that has come into the ACC’s possession under this Act and that is relevant to security as defined in section 4 of the Australian Security Intelligence Organisation Act 1979 (Cwlth) .
In this section—
relevant authority means—
a law enforcement agency; or
a foreign law enforcement agency; or
an authority of the Commonwealth, a State or a Territory prescribed under a regulation.
(sec.45-ssec.1) The chair of the Board must keep the Commonwealth Minister informed of the general conduct of the ACC in the performance of the ACC’s functions under this Act.
(sec.45-ssec.2) If the Commonwealth Minister requests the chair of the Board to give to him or her information about a specific matter relating to the ACC’s conduct in the performance of its functions under this Act, the chair must comply with the request.
(sec.45-ssec.3) Subject to subsection (4) , if the State Minister requests the chair of the Board to give to him or her information about a specific matter relating to the ACC’s conduct in the performance of its functions under this Act, the chair must comply with the request.
(sec.45-ssec.4) If the chair of the Board considers that disclosure of information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the chair must not provide the information under subsection (3) .
(sec.45-ssec.5) Subject to subsection (7) , the chair of the Board— must, when requested by the Inter-Governmental Committee to give information to the Committee about a specific matter relating to an ACC operation/investigation that the ACC has conducted or is conducting, comply with the request; and must when requested by the Inter-Governmental Committee to do so, and may at the other times the chair of the Board thinks appropriate, inform the Committee about the general conduct of the ACC in the performance of the ACC’s functions under this Act.
(sec.45-ssec.6) Subject to subsection (7) , the chair of the Board must give to the Inter-Governmental Committee, for transmission to the Governments represented on the Committee, a report of the findings of any special ACC operation/investigation conducted by the ACC.
(sec.45-ssec.7) The chair of the Board— must not give to the Inter-Governmental Committee any matter the disclosure of which to members of the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies ( relevant matter ); and if the findings of the ACC in an investigation include any relevant matter, must prepare a separate report in relation to the relevant matter and give that report to the State Minister.
(sec.45-ssec.8) The chair of the Board may include in a report given under subsection (6) a recommendation that the report be laid before the Legislative Assembly.
(sec.45-ssec.9) The CEO may give to a relevant authority any information that has come into the ACC’s possession under this Act and that is relevant to the activities of that agency or authority if— it appears to the CEO to be appropriate to do so; and to do so would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply.
(sec.45-ssec.10) The CEO may, whenever it appears to the CEO to be appropriate to do so, give to authorities and persons responsible for taking civil remedies by or on behalf of the Commonwealth, a State or a Territory, any information that has come into the ACC’s possession under this Act and that may be relevant for the purposes of so taking the remedies for matters connected with, or arising out of, offences against— the laws of the Commonwealth; or the laws of a State; or the laws of a Territory.
(sec.45-ssec.11) If any information relating to the performance of the functions of an authority of the Commonwealth or a State or the Administration of a Territory comes into the ACC’s possession under this Act, the CEO may, if he or she considers it desirable to do so— give that information to the authority or Administration; and make any recommendations to the authority or Administration as to the performance of its functions that the CEO considers appropriate.
(sec.45-ssec.12) A report under this Act that sets out any finding that an offence has been committed, or makes any recommendation for the institution of a prosecution for an offence, must not be made available to the public unless the finding or recommendation is expressed to be based on evidence that would be admissible in the prosecution of a person for that offence.
(sec.45-ssec.13) The CEO may, whenever it appears to the CEO to be appropriate to do so, give to the Australian Security Intelligence Organisation any information that has come into the ACC’s possession under this Act and that is relevant to security as defined in section 4 of the Australian Security Intelligence Organisation Act 1979 (Cwlth) .
(sec.45-ssec.14) In this section— relevant authority means— a law enforcement agency; or a foreign law enforcement agency; or an authority of the Commonwealth, a State or a Territory prescribed under a regulation.
(a) must, when requested by the Inter-Governmental Committee to give information to the Committee about a specific matter relating to an ACC operation/investigation that the ACC has conducted or is conducting, comply with the request; and
(b) must when requested by the Inter-Governmental Committee to do so, and may at the other times the chair of the Board thinks appropriate, inform the Committee about the general conduct of the ACC in the performance of the ACC’s functions under this Act.
(a) must not give to the Inter-Governmental Committee any matter the disclosure of which to members of the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies ( relevant matter ); and
(b) if the findings of the ACC in an investigation include any relevant matter, must prepare a separate report in relation to the relevant matter and give that report to the State Minister.
(a) it appears to the CEO to be appropriate to do so; and
(b) to do so would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply.
(a) the laws of the Commonwealth; or
(b) the laws of a State; or
(c) the laws of a Territory.
(a) give that information to the authority or Administration; and
(b) make any recommendations to the authority or Administration as to the performance of its functions that the CEO considers appropriate.
(a) a law enforcement agency; or
(b) a foreign law enforcement agency; or
(c) an authority of the Commonwealth, a State or a Territory prescribed under a regulation.
sec.46
Secrecy
sec.46 Secrecy
This section applies to—
the CEO; and
a member of the Board; and
a member of the staff of the ACC; and
an examiner.
A person to whom this section applies must not, either directly or indirectly, except for the purposes of a relevant Act or otherwise in connection with the performance of his or her functions under a relevant Act, and either while he or she is or after he or she ceases to be a person to whom this section applies—
make a record of any relevant information; or
divulge or communicate to any person any relevant information.
Maximum penalty—75 penalty units or 1 year’s imprisonment.
A person to whom this section applies can not be required to produce in any court a relevant document, or to divulge or communicate to a court a relevant matter or thing, except if the ACC, or the CEO, the acting CEO, a member of the Board or an examiner in his or her official capacity, is a party to the relevant proceeding or it is necessary to do so—
for the purpose of carrying into effect the provisions of a relevant Act; or
for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the ACC in the performance of its functions.
In this section—
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
member of the staff of the ACC means—
a person referred to in the definition member of the staff of the ACC in section 4 (1) of the ACC Act ; or
a person who assists, or performs services for or on behalf of, a lawyer appointed under section 7 in the performance of the lawyer’s functions as counsel to the ACC.
produce includes permit access to.
relevant Act means the ACC Act , this Act or any corresponding Act of another State.
relevant document means a document that has come into a person’s custody or control in the course of, or because of, the performance of the person’s functions under this Act.
relevant information means information acquired by a person because of, or in the course of, the performance of the person’s functions under this Act.
relevant matter or thing means a matter or thing that has come to a person’s notice in the performance of the person’s functions under this Act.
(sec.46-ssec.1) This section applies to— the CEO; and a member of the Board; and a member of the staff of the ACC; and an examiner.
(sec.46-ssec.2) A person to whom this section applies must not, either directly or indirectly, except for the purposes of a relevant Act or otherwise in connection with the performance of his or her functions under a relevant Act, and either while he or she is or after he or she ceases to be a person to whom this section applies— make a record of any relevant information; or divulge or communicate to any person any relevant information. Maximum penalty—75 penalty units or 1 year’s imprisonment.
(sec.46-ssec.3) A person to whom this section applies can not be required to produce in any court a relevant document, or to divulge or communicate to a court a relevant matter or thing, except if the ACC, or the CEO, the acting CEO, a member of the Board or an examiner in his or her official capacity, is a party to the relevant proceeding or it is necessary to do so— for the purpose of carrying into effect the provisions of a relevant Act; or for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the ACC in the performance of its functions.
(sec.46-ssec.4) In this section— court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. member of the staff of the ACC means— a person referred to in the definition member of the staff of the ACC in section 4 (1) of the ACC Act ; or a person who assists, or performs services for or on behalf of, a lawyer appointed under section 7 in the performance of the lawyer’s functions as counsel to the ACC. produce includes permit access to. relevant Act means the ACC Act , this Act or any corresponding Act of another State. relevant document means a document that has come into a person’s custody or control in the course of, or because of, the performance of the person’s functions under this Act. relevant information means information acquired by a person because of, or in the course of, the performance of the person’s functions under this Act. relevant matter or thing means a matter or thing that has come to a person’s notice in the performance of the person’s functions under this Act.
(a) the CEO; and
(b) a member of the Board; and
(c) a member of the staff of the ACC; and
(d) an examiner.
(a) make a record of any relevant information; or
(b) divulge or communicate to any person any relevant information.
(a) for the purpose of carrying into effect the provisions of a relevant Act; or
(b) for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the ACC in the performance of its functions.
(a) a person referred to in the definition member of the staff of the ACC in section 4 (1) of the ACC Act ; or
(b) a person who assists, or performs services for or on behalf of, a lawyer appointed under section 7 in the performance of the lawyer’s functions as counsel to the ACC.
sec.47
Delegation
sec.47 Delegation
The CEO may, by writing, delegate to a member of the staff of the ACC who is an SES employee, or an acting SES employee, all or any of the CEO’s functions under this Act.
sec.48
Liability for damages
sec.48 Liability for damages
A member of the Board is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in performance or purported performance of any function conferred or expressed to be conferred by or under this Act.
sec.49
Obstructing, hindering or disrupting the ACC or an examiner
sec.49 Obstructing, hindering or disrupting the ACC or an examiner
A person must not—
obstruct or hinder—
the ACC in the performance of its functions; or
an examiner in the performance of his or her functions as an examiner; or
disrupt an examination before an examiner.
Maximum penalty—300 penalty units or 5 years imprisonment.
(a) obstruct or hinder— (i) the ACC in the performance of its functions; or (ii) an examiner in the performance of his or her functions as an examiner; or
(i) the ACC in the performance of its functions; or
(ii) an examiner in the performance of his or her functions as an examiner; or
(b) disrupt an examination before an examiner.
(i) the ACC in the performance of its functions; or
(ii) an examiner in the performance of his or her functions as an examiner; or
sec.50
Public meetings and bulletins
sec.50 Public meetings and bulletins
The Board may hold meetings in public to inform the public about, or receive submissions in relation to, the performance of the ACC’s functions, including its functions under this Act.
The Board may publish bulletins to inform the public about the performance of the ACC’s functions, including its functions under this Act.
The Board must not—
divulge in the course of a meeting held under subsection (1) ; or
include in a bulletin published under subsection (2) ;
any matter the disclosure of which to members of the public could prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.
(sec.50-ssec.1) The Board may hold meetings in public to inform the public about, or receive submissions in relation to, the performance of the ACC’s functions, including its functions under this Act.
(sec.50-ssec.2) The Board may publish bulletins to inform the public about the performance of the ACC’s functions, including its functions under this Act.
(sec.50-ssec.3) The Board must not— divulge in the course of a meeting held under subsection (1) ; or include in a bulletin published under subsection (2) ; any matter the disclosure of which to members of the public could prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.
(a) divulge in the course of a meeting held under subsection (1) ; or
(b) include in a bulletin published under subsection (2) ;
More sections below
Source text: opening excerpt
Sourced from Queensland Legislation (legislation.qld.gov.au), CC BY 4.0.
pt.1 Preliminary
Preliminary
sec.1 Short title
sec.1 Short title
This Act may be cited as the Australian Crime Commission (Queensland) Act 2003 .
sec.2 Commencement
sec.2 Commencement
This Act commences on a day to be fixed by proclamation.
sec.3 Interpretation
sec.3 Interpretation
The dictionary in schedule 2 defines particular words used in this Act.
If this Act uses a term that is used in the ACC Act , the term has the same meaning in this Act as it has in the ACC Act unless the contrary intention appears in this Act.
If the head of an ACC operation/investigation suspects that an offence (the incidental offence ) that is not a serious and organised crime may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of a serious and organised crime (whether or not the head has identified the nature of that serious and organised crime), then the incidental offence is, for so long only as the head so suspects, taken, for the purposes of this Act, to be a serious and organised crime.
A reference in this Act, other than part 2 , to a function includes a reference to a power or duty.
A note in the text of this Act is part of the Act .
(sec.3-ssec.1) The dictionary in schedule 2 defines particular words used in this Act.
(sec.3-ssec.2) If this Act uses a term that is used in the ACC Act , the term has the same meaning in this Act as it has in the ACC Act unless the contrary intention appears in this Act.
(sec.3-ssec.3) If the head of an ACC operation/investigation suspects that an offence (the incidental offence ) that is not a serious and organised crime may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of a serious and organised crime (whether or not the head has identified the nature of that serious and organised crime), then the incidental offence is, for so long only as the head so suspects, taken, for the purposes of this Act, to be a serious and organised crime.
(sec.3-ssec.4) A reference in this Act, other than part 2 , to a function includes a reference to a power or duty.
(sec.3-ssec.5) A note in the text of this Act is part of the Act .
sec.4 Act binds all persons
sec.4 Act binds all persons
This Act binds all persons including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.
Subsection (1) does not make the State, the Commonwealth or another State liable to be prosecuted for an offence.
(sec.4-ssec.1) This Act binds all persons including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.
(sec.4-ssec.2) Subsection (1) does not make the State, the Commonwealth or another State liable to be prosecuted for an offence.
Sets out detailed non-disclosure and secrecy mechanisms: examiners may prohibit publication of evidence, documents, identifying information and the fact a person has given evidence (s 18(9)-(12)); summonses and notices may contain notations prohibiting disclosure and those notations trigger statutory nondisclosure offences (ss 21-22); senior ACC personnel and others are subject to broad secrecy obligations with significant penalties (s 46).
Requires the CEO to assemble and give admissible evidence obtained by ACC operations to the Attorney-General, law enforcement agencies or other authorised prosecuting authorities (s 34).
Limits judicial review of Board determinations that an ACC State operation/investigation is “special”, except where proceedings are instituted by the Commonwealth or State Attorney-General (s 36).
Provides reporting, inter-governmental oversight and information-sharing rules, including duties to inform the Commonwealth Minister and to furnish reports to the Inter-Governmental Committee; the annual report must include descriptions of special investigations and patterns or trends observed (ss 45, 51).
Transitions functions, evidence and arrangements from the repealed National Crime Authority (State Provisions) Act 1985 to the ACC regime (Pt 7, ss 54-66).
Mechanically, the Act builds a hybrid enforcement instrument: it imports ACC-style compulsory evidence-gathering and secrecy protections into a State-operational context; it allocates decision-making between the ACC Board and the CEO; and it embeds statutory constraints on disclosure, judicial challenge and the handling of evidentiary products (notably ss 18, 21-22, 34, 36, 46). The Act’s commencement is by proclamation (s 2).
The Act’s official rationale (found in the text and structure) is to enable the ACC to pursue serious and organised crime that involves State offences, to provide mechanisms for evidence assembly and sharing, and to preserve operational secrecy where necessary. The Act implements these aims through mandatory procedures (Board determinations, CEO delegations, examiner powers), criminal penalties to secure compliance, and limited avenues for judicial review (s 36). The next sections test those mechanics against costs, incentives, decision rights and compliance burdens identified in the Act itself.
Main concepts
The Act centres on a small set of legal constructs. Understanding them is crucial to applying the statute.
ACC operation/investigation and “special” determinations: The ACC conducts intelligence operations and investigations in relation to serious and organised crime that include State offences (s 5). The Board decides, in writing, whether an ACC State intelligence operation is a “special operation” or an ACC State investigation is a “special investigation” (s 8(1)-(2), (4)). A special determination must describe the general nature of circumstances or allegations, state that the crime includes offences against State law without specifying particulars, and set out the purpose (s 8(6)). The determination takes immediate effect and the chair must notify the Inter-Governmental Committee within three days (s 8(7)-(8)). Section 36 restricts court challenges to acts done because of such determinations, except where the Attorney-General institutes proceedings (s 36).
Governance roles: The ACC Board (functions at s 8 and meeting rules ss 9-15) and the CEO (duties at s 6 and delegation power at s 47) divide strategic decision-making and operational control. The CEO appoints counsel assisting the ACC (s 7), determines the head of each operation/investigation after Board consent (s 6(2)), and may delegate functions to senior SES staff (s 47).
Examiners and examinations: Examiners conduct private, statutory examinations for special ACC operations/investigations (ss 17-18). Examiners may regulate examination conduct, permit legal representation under specified circumstances (s 18(2)), and give directions limiting publication and attendance (s 18(3), (9)). Examiners can summon witnesses (s 19) and require production of documents by notice (s 20). The Act prescribes penalties for unauthorised attendance or publication (s 18(5), (16)), refusal to attend or answer (s 23), and false evidence (s 25).
Compulsory process, remedies and safeguards: The statutory summons must be reasonable and accompanied by the Board determination (s 19(1), (4)). Notices to produce documents carry heavy penalties for non-compliance (s 20(5)). Use immunity and limits on admissibility of compelled answers or documents are set out (s 23(8)-(9)). Courts may certify to allow disclosure of otherwise-protected testimony in the interests of justice (s 18(13)-(15)). Issuing officers must be satisfied on affidavit before issuing search warrants and must record grounds relied on (s 29(4)-(5)). The Act permits telephonic warrant applications when urgent, with follow-up procedural requirements (s 30).
Secrecy and nondisclosure: The Act provides layered secrecy tools. Examiners may direct suppression of evidence or identifying information (s 18(9)-(11)). Examiners may annotate summonses/notices to prohibit disclosure (s 21). Persons served with such annotated documents are criminally prohibited from disclosing the existence of the document or connected official matters, subject to enumerated limited exceptions (s 22). Senior ACC personnel and examiners are subject to a separate statutory secrecy obligation with a substantial penalty (s 46).
Information handling and inter-governmental interface: The CEO must assemble and give admissible evidence to prosecuting authorities (s 34(1)). The Board may recommend law, administrative or court-administration reforms to Ministers (s 34(3)). The Inter-Governmental Committee may request further information about a special determination within 30 days and may revoke determinations under strict voting rules (s 16). Reporting duties to the Commonwealth Minister, State Minister and Inter-Governmental Committee are articulated (s 45). Annual reporting contents are prescribed (s 51).
Transitional continuity with the NCA: The Act repeals the National Crime Authority (State Provisions) Act 1985 (s 54) and carries forward certain investigations, evidence and arrangements established by the NCA into the ACC regime (Pt 7, ss 56-66).
These concepts interact to create a regime where the Board’s high-threshold, written special determinations trigger a tranche of compulsory investigatory tools, overseen operationally by the CEO, with secrecy protections and reporting obligations that channel information to prosecution and to inter-governmental bodies (ss 5-8, 6, 18, 21-22, 34, 45).
Who it affects
The Act assigns roles and obligations across multiple institutional and private actors. The parties materially affected (and how the Act changes their legal position) are:
ACC senior personnel: The CEO is given explicit operational control and management responsibilities for ACC operations/investigations in Queensland, must determine heads of operations in writing following the Board’s consent and may delegate to senior SES staff (ss 6, 47). The CEO also has powers to vary examiner publication directions except where variation would prejudice safety or fair trial (s 18(11)-(12)). ACC staff are within the secrecy obligations of s 46.
The ACC Board and its members: The Board determines whether an operation or investigation is “special”, classifies persons to participate, establishes task forces, and must comply with meeting and voting rules (ss 8, 11-15). The Board’s chair has notification obligations to the Inter-Governmental Committee (s 8(7)). Board decisions on special determination have immediate effect and are, except as limited by s 36, insulated from State judicial challenge.
Examiners and counsel: Examiners wield compulsory powers to summon witnesses, require documents, take sworn evidence, and to restrict publication (ss 17-21, 18(9)). Counsel assisting the ACC may be appointed by the CEO (s 7) and enjoy professional protections under s 27.
Witnesses and persons summoned/notified: Individuals and corporate bodies who are summoned or served notices face statutory obligations to attend, give evidence, produce documents and to obey nondisclosure notations where included. Penalties for non-compliance are significant (ss 19-23). The Act constrains disclosure even to third parties except in narrow circumstances (s 22).
Lawyers: Witnesses may be represented by lawyers (s 18(2)). Lawyers have limited functions and duties when required to answer questions that would disclose privileged communications; the lawyer may refuse absent client consent but then must disclose the client name and address if required (s 23(4)-(5)). Lawyers assisting ACC or examiners receive statutory protections and immunities (s 27).
Law enforcement agencies and prosecuting authorities: The CEO must assemble and give admissible evidence obtained by the ACC to relevant prosecuting authorities or law enforcement agencies (s 34(1)-(2)). The CEO may share information with law enforcement agencies and foreign authorities where appropriate (s 37, s 45(9)-(13)).
Courts and judicial officers: Federal Court and State Supreme Court judges can issue warrants for witness apprehension (s 24) and orders for passport delivery and retention (s 28). The Act requires certain judicial oversight for detention and bail decisions (s 24(6)-(8)) and provides that functions conferred on federal judicial officers are personal and not as a court (s 35). The Act restricts State courts from entertaining challenges to Board determinations except where initiated by an Attorney-General (s 36).
State executive and inter-governmental bodies: The Inter-Governmental Committee receives determinations and has 30 days to request further information or revoke a determination subject to voting rules and Commonwealth agreement (s 16). The State Minister may make arrangements to supply information or staff to the Board or ACC (ss 42-43). The Chair must keep the Commonwealth Minister and, on request, the State Minister informed (s 45).
Private entities and business records custodians: Notices under s 20 and warrants under s 29 may compel production of documents or seizure of physical or documentary materials connected with a special operation/investigation. Corporate officers may be permitted to receive information to ensure compliance, but are subject to nondisclosure constraints (s 22(2)(c)). The Act explicitly treats documents that record earnings and are limited in content differently in admissibility rules (s 23(7)).
Persons previously under the National Crime Authority regime: Transitional provisions carry over NCA investigations, nondisclosure statements, seized items and arrangements into the ACC framework (Pt 7, ss 56-66), affecting persons involved in those historic matters.
The Act changes behaviour by creating compulsory production and attendance powers, criminal penalties for non-compliance or disclosure, secrecy duties on ACC personnel and participants, and inter-governmental reporting rules. The concentrated decision rights sit with the Board (special determinations) and the CEO (operation management and evidence assembly), while the burdens (attendance, production, nondisclosure penalties) fall on private witnesses, corporate officers and lawyers responding to ACC process.
Key duties and rights
This section catalogues the operative duties, statutory rights and procedural protections created by the Act, with section references.
Duties of the ACC and its governance
Perform functions in relation to State offences: ACC’s functions include undertaking intelligence operations and investigations where the serious and organised crime includes State offences and reporting to the Board on outcomes (s 5).
CEO management duty: The CEO must manage, coordinate and control ACC operations/investigations and determine in writing the head of each operation after Board consent (s 6(1)-(2)); the CEO must consult the chair and other Board members as appropriate (s 6(3)).
Board determinations and reporting: The Board must determine in writing whether an ACC State operation or investigation is “special”, describe the general nature of the activity, the purpose and state that it includes State offences (s 8(2), (6)-(8)). The chair must give the Inter-Governmental Committee a copy within three days (s 8(7)).
Compulsory process and examination regime
Examiners’ authority: Examiners may conduct examinations for special operations/investigations and regulate proceedings (ss 17-18(1), (3)). Examiners may summon witnesses under s 19 and require documents under s 20.
Reasonableness and recording: Before issuing a summons or notice the examiner must be satisfied it is reasonable and record reasons in writing (s 19(2)-(3); s 20(2)-(3)).
Right to legal representation and private hearings: Persons giving evidence may be represented by a lawyer (s 18(2)). Examinations are to be held in private and examiners may limit attendance (s 18(3)-(4)).
Limits on publication: Examiners must prohibit publication where necessary to protect safety, reputation, or fair trial (s 18(9)-(12)).
Witness and document obligations
Mandatory attendance and production: A person summoned must attend and produce documents; refusal attracts heavy penalties including up to 5 years imprisonment or 300 penalty units in several circumstances (s 19(1); s 20(5); s 23(1)-(2)).
Oath or affirmation: Examiners may require witnesses to take oath or affirmation; authorised ACC persons may administer them (s 19(8)).
Admissibility limitations and use immunity: Answers or produced documents compelled at examination are generally not admissible against the witness in criminal proceedings or penalty proceedings, subject to carve-outs for confiscation proceedings and proceedings about falsity (s 23(8)-(9)). Legal professional privilege remains unaffected (s 23(9)).
Secrecy and nondisclosure
Annotated summons and notices: Examiners must or may include notations prohibiting disclosure if failure would or might prejudice safety, fair trial, or operational effectiveness, or be contrary to the public interest (s 21(1)-(3)).
Statutory nondisclosure offence: Persons served with annotated documents must not disclose existence or information about the summons/notice or connected official matters; penalties up to 1 year imprisonment or 30 penalty units apply (s 22(1), (6)). Limited exceptions permit disclosure to lawyers for advice, corporate officers for compliance, and to others as specified (s 22(2)-(4)).
ACC staff and related persons’ secrecy obligations: The CEO, Board members, ACC staff and examiners must not make records of or divulge “relevant information” beyond the purposes of the Act or related Acts; severe penalties apply (s 46(1)-(2)). They cannot be compelled to produce relevant documents in court except in narrow circumstances (s 46(3)).
Judicial and enforcement duties and powers
Evidence assembly and disclosure duty: If the ACC obtains admissible evidence of an offence, the CEO must assemble and give it to the Attorney-General, relevant law enforcement agency or authorised prosecuting person/authority (s 34(1)). The CEO may also assemble and provide evidence for confiscation proceedings (s 34(2)).
Judicial support for coercive steps: Federal Court or Supreme Court judges may issue arrest warrants for witness apprehension, and judges may make orders for passport delivery and retention where flight is suspected (ss 24, 28). Warrants allow reasonable force and entry where necessary (s 24(2), (5)).
Limits on judicial review: Actions taken by the ACC because of a Board determination that an operation/investigation is special cannot be challenged, reviewed or quashed in State courts on the ground the determination was unlawfully made, except in proceedings instituted by a Commonwealth or State Attorney-General (s 36).
Administrative reporting and cooperation duties
Ministerial and inter-government reporting: The chair must keep the Commonwealth Minister informed and comply with requests for specific information; the chair must also, subject to safety and operational concerns, provide information and reports to the Inter-Governmental Committee and State Minister as set out (s 45).
Cooperation with law enforcement and overseas authorities: The ACC must, so far as is practicable, work in cooperation with law enforcement agencies and may coordinate with overseas authorities performing similar functions (s 37).
Annual reporting obligations: Annual reports must include details of special investigations, observed criminal patterns or trends, information given to law enforcement and the extent to which investigations led to prosecutions or confiscation proceedings (s 51).
These duties and rights allocate decision authority to the Board, CEO, examiners and courts, while imposing compliance burdens and criminal sanctions on witnesses, persons receiving annotated process and ACC personnel. The Act embeds procedural safeguards (reasonableness, recording of reasons, judicial oversight for certain coercive steps and limited admissibility of compelled testimony), balanced against secrecy protections and limits on review (ss 19-20, 24, 28, 23(8), 18(9)-(12), 36, 46).
Penalties and enforcement
The Act pairs coercive investigatory powers with a range of penalties and enforcement mechanisms. These are concentrated in the examination and nondisclosure regimes and in provisions preventing obstruction.
Key criminal penalties
Non‑attendance and non‑production: A person served with a prescribed summons who fails to attend or fails to continue attendance is liable to a maximum penalty of 300 penalty units or five years imprisonment (s 23(1)). A witness who refuses to take an oath/affirmation, refuses to answer a question, or refuses to produce a required document faces the same maximum (s 23(2)). Notices to produce documents under s 20 carry a maximum penalty of the same magnitude for refusal to comply (s 20(5)).
Obstructing or disrupting the ACC: Any person who obstructs or hinders the ACC in its functions, obstructs or hinders an examiner in the exercise of examiner functions, or disrupts an examination is liable to 300 penalty units or five years imprisonment (s 49).
Publication and disclosure offences: Unauthorised presence at an examination is penalised (s 18(5) provides maximum 30 penalty units or one year’s imprisonment for presence where not entitled). Making publications in contravention of examiner directions under s 18(9) is also penalised (s 18(16): 30 penalty units or one year’s imprisonment). The statutory nondisclosure offence for persons served with annotated summonses/notices carries the same maximum (s 22(1) and s 22(3)).
False or misleading evidence: A person must not knowingly give false or misleading evidence at an examination; the maximum penalty is 300 penalty units or five years imprisonment (s 25).
Secrecy obligations for ACC-related persons: The CEO, Board members, staff and examiners face a maximum penalty of 75 penalty units or one year imprisonment for recording or divulging relevant information outside permitted purposes (s 46(2)). There is also protection that such persons cannot be required to produce relevant documents in court except in narrow circumstances (s 46(3)).
Enforcement mechanisms and judicial involvement
Arrest warrants and detention: On application by an examiner, a Federal Court judge or a State Supreme Court judge may issue a warrant for apprehension where there are reasonable grounds to believe a person has been ordered to deliver a passport and is likely to leave Australia to avoid giving evidence, has absconded or is likely to abscond after a summons, or has committed an offence under s 23(1) or likely to do so (s 24(1)). Execution includes authority to break and enter premises and use reasonable force (s 24(2), (5)). Apprehended persons must be brought promptly before a judge, who has discretionary bail, detention or release powers (s 24(6)-(7)). Persons detained must be brought before a judge again within 14 days or in accordance with any judge’s prior order (s 24(8)-(9)).
Passport orders: A judge of the Federal Court sitting in chambers may make an order to have a person show cause why the person should not deliver their passport to an examiner where reasonable grounds exist that the person may leave Australia and holds a passport relevant to a special operation/investigation (s 28(2)-(3)). Retention may be authorised for up to one month with extensions up to a total of three months (s 28(3)-(4)). The person may apply to revoke at any time and the judge may revoke the order (s 28(5)).
Search and seizure: Issuing officers may issue search warrants for things connected with special operations/investigations if satisfied of reasonable grounds (s 29(1)-(4)). Warrants must be supported by affidavit and state the grounds relied on (s 29(4)-(6)). Seizure of discovered evidence that appears to be admissible in prosecutions is authorised if necessary to prevent concealment, loss, mutilation, destruction or use in offending; such seized items are treated as seized under the warrant (s 29(10)-(11)). Head of the operation may retain seized things while reasonably necessary, and must deliver items to prosecuting authorities or entitled persons when retention ceases, subject to s 34 transfers (s 29(11)-(12)).
Procedural safeguards: Issuing officers must be satisfied and record reasons for warrants and summonses (ss 19(2)-(3), 29(4)-(5)). Examiners must be satisfied that inclusion of nondisclosure notation is necessary in specified circumstances and must provide a statement of rights and obligations under s 22 to the person (s 21(1)-(3)). Courts can issue certificates enabling disclosure of examiner-directed protected evidence in the interests of justice (s 18(13)-(15)). The Act provides that the CEO must assemble and give evidence obtained by the ACC to prosecuting authorities (s 34(1)).
Penalties calibrated to compliance goals
The Act calibrates penalties to the gravity of non‑compliance: refusal to obey compulsory process and giving false evidence attract the highest penalties (up to 5 years), reflecting the Legislature’s emphasis on securing witness cooperation and document production in special operations (ss 20-23, 25, 49). Publication and disclosure offences carry lesser but still significant penalties (up to one year) to protect witnesses and operational integrity (ss 18(16), 22(1)).
Practical enforcement notes embedded in the statute
Reasonableness requirement and written reasons: Examiners must be satisfied that issuing a summons or notice is reasonable and must record reasons in writing (ss 19(2)-(3), 20(2)-(3)). Issuing officers for warrants require affidavit support and must state grounds relied upon (s 29(4)-(6)). These formalities create procedural hooks that can be relevant in evaluating whether coercive process was lawfully invoked, although s 36 limits State court challenges to Board determinations (s 36).
Interaction with other statutory powers: Seizures under s 29 do not limit powers under the Police Powers and Responsibilities Act 2000, s 196 (s 29(14)). The Act also allows the CEO to share relevant information where appropriate, within legal constraints (s 45(9)-(13)).
The Act thus constructs an enforcement architecture combining compulsory investigatory tools, heavy criminal penalties for obstruction or falsehood, judicially supervised coercive steps where necessary, and procedural constraints intended to ensure reasoned exercise of intrusive powers (s 19, s 29, s 24, s 28). The statutory bar on State-court challenges to Board determinations (s 36) narrows judicial remedies in a way that is important for practitioners to note.
How it interacts with other laws
The Act is designed to operate in an interlocking regulatory environment. The text explicitly ties the Act to Commonwealth and State instruments and sets boundaries on interaction.
Relationship to the ACC Act and federal law
Definitions and terminology are pulled from the ACC Act: s 3(2) provides that if the Act uses a term appearing in the ACC Act, that term has the same meaning unless a contrary intention appears. The ACC’s consent procedures under the ACC Act remain relevant; for example, the CEO must determine heads of operations as soon as practicable after the Board consents under s 55A(3) of the ACC Act to undertake an operation (s 6(2)). Section 31 explicitly states that the conferral of a function on a Commonwealth body or person by this Act is subject to any provision of the ACC Act that requires Board consent (s 31).
State binding and constitutional limits
The Act binds all persons including the State and, as far as parliamentary power permits, the Commonwealth and other States, but does not make those entities liable to be prosecuted (s 4). Section 33 clarifies the Act does not purport to confer a duty upon a Commonwealth body or person if such a duty would be beyond the State Parliament’s legislative power; this preserves constitutional limits (s 33).
Interaction with criminal procedure and evidence regimes
The Act requires the CEO to assemble and give admissible evidence to prosecuting authorities (s 34(1)). Use immunity is restricted: compelled answers or produced documents at examinations are generally inadmissible in criminal proceedings against the witness, with carve-outs for confiscation proceedings and falsity proceedings (s 23(8)-(9)). Courts may, via certificate, order release of examiner-directed protected evidence in the interests of justice (s 18(13)-(15)).
Overlap with State policing powers
The Act expressly states that s 29(10) does not limit powers under the Police Powers and Responsibilities Act 2000, s 196 (s 29(14)). This recognises and preserves parallel police powers over seizure and search, rather than attempting to displace them.
Judicial functions and exercise by judges or federal judicial officers
Federal judicial officers and judges of the Supreme Court are given personal functions under the Act (s 35). Judges of the Federal Court and Supreme Court may issue warrants under ss 24 and 28. The Act clarifies these functions are personal and not taken to be done by the court (s 35(1), (3)), and that a federal judicial officer has immunity equivalent to performing judicial functions (s 35(4)).
Interaction with State administrative and criminal laws
Proceedings for offences against the Act must generally be taken in a summary way under the Justices Act 1886 within specified time limits, or, for indictable offences, at the prosecution’s election on indictment (s 40). The Act sets maximum penalties which interact with other penalty regimes in State law (s 41, s 40(7)). Section 34(3) authorises the Board to recommend reform to Commonwealth or State law in specified areas, connecting the Act to broader law-reform processes (s 34(3)).
Transitional continuity with the National Crime Authority regime
The Act repeals the NCA (State Provisions) Act 1985 (s 54) but carries over specific investigations, nondisclosure statements, seized things and administrative arrangements into the ACC framework (Pt 7, ss 56-66). For example, investigations commenced under the NCA and not completed before 1 January 2003 are taken to be special investigations under the ACC Board (s 56). Section 62 makes existing NCA nondisclosure statements operate as notations under s 21 and makes s 21(4)-(5) apply as if the NCA statements were notations (s 62).
Regulatory and reporting links
The Board must ensure the scheduling of its meetings meets ACC Act s 7D requirements (s 9(2)). The chair has duties to inform the Commonwealth Minister and, subject to limitations, the State Minister and the Inter-Governmental Committee about ACC conduct (s 45). Annual reports by the chair under the ACC Act are required to include specified State-focused content; the State Minister must lay these before the Legislative Assembly (s 51).
Limitations on review and separation of powers
Section 36 limits challenges in State courts to acts done by the ACC because of Board determinations that an operation/investigation is special, except where the Attorney‑General institutes proceedings. This statutory bar interacts with judicial review doctrines and limits one procedural avenue for contesting determinations under the Act.
In short, the Act is integrative: it imports ACC foci and federal definitions, overlays State procedural interfaces (courts, Justices Act timelines), preserves other statutory powers (police powers), and ensures that evidence and investigations can be passed to prosecutorial bodies while imposing secrecy constraints. Practitioners must navigate the Act alongside the ACC Act, State criminal procedure and evidence rules, and any residual NCA instruments the Act preserves.
Amendment history
The Act text provided includes embedded amendment notations and transitional provisions. The source itself records specific amendments to particular subsections and the expiry of one transitional section; do not infer further history beyond what the Act text shows.
s 11: The quorum provision (s 11) bears an amendment note: "s 11 amd 2016 No. 48 s 4", indicating an amendment occurred under Statute No. 48 of 2016, s 4, to s 11 (the text currently sets a quorum at nine Board members (not including the CEO)).
s 29: The search-warrant section includes amendment notes referencing earlier Acts: "s 29 amd 2000 No. 5 s 810 sch 4 (amd 2006 No. 26 ss 84, 86)". This indicates s 29 underwent amendments under Statute No. 5 of 2000 and further amendments under Statute No. 26 of 2006, ss 84 and 86. The text of s 29 reflects those changes (including references to Police Powers and Responsibilities Act 2000, s 196).
s 62: The transitional provision addressing disclosure of summonses or notices contains "s 62 amd 2006 No. 26 s 119 sch 2", showing an amendment effected by Statute No. 26 of 2006.
s 67: The transitional regulation-making power (s 67) displays "s 67 exp 7 November 2005 (see s 67(4))", which records an expiry of that section on 7 November 2005.
Multiple sections include internal repetitions and consolidated text that show prior enactments have been reorganised and some provisions carried forward from the NCA (State Provisions) Act via the transitional Part 7 (ss 54-66).
The Act’s commencement is subject to proclamation (s 2), and the repeal of the National Crime Authority (State Provisions) Act 1985 (s 54) and transitional provisions (Pt 7) show legislative redesign of state-level NCA functions into the ACC scheme. The source-provided amendment notes above are the only explicit amendment history items in the text. Any further amendment history, repeals or consequential changes outside the text cannot be stated from this source.
Litigation history
The Act text supplied does not cite any judicial decisions, nor does it record case law construing its provisions. The statute names no cases. The Act does, however, create procedures and rights that are likely focal points for litigation (for example, challenges to the use of compulsory powers, admissibility issues, and secrecy directions), and it contains a statutory bar on State court challenges to Board determinations that an operation/investigation is "special" except where proceedings are instituted by the Commonwealth or State Attorney-General (s 36). That provision narrows the avenues through which parties might seek judicial review of determinations in State courts.
Because the statute itself contains no case citations and the source provided does not include any reported decisions, no litigation history can be recited from the Act alone. For practitioners, the statute’s phrasing,particularly limits on review (s 36), secrecy obligations (s 46), and the procedural outline for issuing compulsory process (ss 19-20, 29),identifies potential litigation pressure points (judicial certificates under s 18(13)-(15), challenges to sufficiency of affidavit grounds for warrants under s 29(4)-(5), admissibility disputes linked to s 23) that would most likely generate case law. However, any description of actual litigation outcomes or judicial interpretations would require external sources not present in the Act text and therefore cannot be provided here.
Gotchas
The Act contains several features that produce practical and legal traps. Below are concrete mechanics to watch for, all grounded in the statutory text.
Board thresholds and immediate effect of special determinations
The Board cannot declare an ACC State intelligence operation or investigation "special" unless at least nine Board members (excluding the CEO but including at least two eligible Commonwealth Board members) vote in favour (s 12(4)). Once made, the determination takes effect immediately and must be provided to the Inter-Governmental Committee within three days (s 8(6)-(8)). This creates a high procedural hurdle for special determinations, but once met the determination triggers the full suite of coercive powers and limits on review (s 36). Practitioners should note both the high voting threshold and the immediate legal consequences.
Restricted avenues to challenge Board determinations
Acts done by the ACC because of a Board special determination are protected from being challenged, reviewed, quashed or called into question in any State court on the ground the determination was not lawfully made, except where proceedings are instituted by the Commonwealth or State Attorney-General (s 36). This significantly limits private parties’ ability to obtain State-court review of the lawfulness of a special determination.
Broad secrecy obligations with wide reach and penalties
The CEO, Board members, ACC staff and examiners are subject to broad secrecy duties forbidding records or disclosure of “relevant information” except for purposes of this Act or related Acts; the penalty is 75 penalty units or one year’s imprisonment (s 46(2)). Such obligations remain in force post-employment and extend to former NCA officials under transitional provisions (s 65). This restricts internal and external disclosure in ways that may complicate counsel’s ability to obtain or use ACC-related material, and also limits compellability in court except in narrow circumstances (s 46(3)).
Nondisclosure notations and criminalisation of disclosure
A summons or notice may carry a nondisclosure notation where the examiner is satisfied that failure to include it would reasonably be expected to prejudice safety, reputation, fair trial, or operational effectiveness (s 21(2)). Persons served with such annotated documents face criminal prohibition on disclosure of the existence of the document or connected official matters (s 22(1)), with limited exceptions (s 22(2)). Annotated notations are cancelled only under prescribed circumstances after an operation concludes, or by elapse of five years (s 21(4)-(5); s 22(5)). Organisations must therefore handle such documents with particular care.
Compelled production with limited admissibility
Answers compelled at examination and documents produced under summons are protected from admissibility in criminal proceedings against the witness, subject to carve-outs for confiscation proceedings and falsity proceedings (s 23(8)-(9)). This means compelled production may not be usable against the producing witness in many contexts, but may be used in confiscation or perjury/falsity cases. Practitioners must plan evidentiary strategy accordingly.
Serious penalties and broad enforcement powers
The Act prescribes up to five years imprisonment for refusal to obey summonses, to produce documents, for false evidence, and for obstructing the ACC or an examiner (ss 23(1)-(2), 25, 49). Arrest warrants and passport retention orders are available under court supervision (ss 24, 28). The combination of criminal penalties and judicially-authorised coercion raises high stakes for non-compliance.
Procedural formalities that affect validity
Examiners must be satisfied that issuing a summons or notice is reasonable and must record reasons in writing (ss 19(2)-(3), 20(2)-(3)). Issuing officers require affidavit material and must record grounds relied on when issuing warrants (s 29(4)-(6)). Failure to observe these formalities can be a focal point in litigation, but s 36 limits State-court challenges to Board determinations, leaving narrow pathways to attack other processes.
CEO’s dual roles and discretion
The CEO must both manage operations and control some publication directions (s 6, s 18(11)-(12)). The CEO can vary examiner directions unless variation would prejudice safety or fair trial (s 18(11)-(12)). This places discretion in the CEO’s hands in ways that may affect both operational secrecy and the rights of witnesses.
Transitional carry-overs require attention
Nondisclosure statements from the NCA era may carry forward as notations under s 21, and NCA investigations may be treated as special investigations (ss 56, 62). Practitioners handling legacy matters should check transitional instruments carefully.
Interaction with other enforcement powers
The Act does not oust other statutory powers (s 29(14)). Police powers under State law and other federal statutes remain relevant; coordinated execution of warrants and seizures requires attention to which statutory authority is being exercised.
These “gotchas” reflect the Act’s design: high-threshold Board decisions unlock a concentrated package of coercive powers and secrecy protections, then allocate operational discretion to the CEO and examiners, backed by significant criminal penalties. Compliance requires procedural discipline (written reasons, affidavit support), careful handling of nondisclosure notations, and strategic legal advice for witnesses and organisations that receive ACC process.
How to comply
This section provides concrete, source-grounded steps and checklists for those likely to face ACC process, for ACC institutional actors, and for advising clients.
For persons and entities served with a summons or notice (ss 19-20, 21-23)
Immediately check for a copy of the Board determination: A summons requiring attendance before an examiner must be accompanied by a copy of the Board determination that the operation/investigation is special (s 19(4)). Verify the determination and record receipt.
Read any nondisclosure notation and the accompanying written statement of rights and obligations: If the examiner includes a notation under s 21(1)-(3), a statement setting out rights and obligations under s 22 must accompany it. Note the specific permitted disclosure exceptions (s 22(2)).
Obtain legal advice promptly: The Act permits disclosure to a lawyer for the purpose of obtaining legal advice regarding the summons or notice (s 22(2)(b)). Use this route if you need to assess privileges or compliance obligations.
Preserve documents and avoid unauthorised disclosure: Non-compliance with production obligations attracts severe penalties (s 20(5); s 23(1)-(2)). At the same time, unauthorised disclosure of annotated documents or connected official matters is a criminal offence (s 22(1)). Limit disclosure to the narrow exceptions in s 22(2) and s 22(4) and maintain strict records of any permitted communications.
Prepare for attendance in private and bring appropriate counsel: Examinations are to be held in private and witnesses may be represented by lawyers (s 18(2)-(3)). If a lawyer is to be present but the lawyer’s client privilege prevents disclosure of communications, note that the lawyer may be required to give the examiner the client’s name and address (s 23(5)).
Evaluate use immunities and evidentiary limits: Compelled answers and documents are generally inadmissible against the witness in criminal proceedings, with carve-outs (s 23(8)-(9)). If considering whether to claim self-incrimination, understand these limits and the exceptions (confiscation proceedings, falsity proceedings).
For corporates and officers
Limit internal disclosure to officers/agents required to ensure compliance: A corporate recipient may disclose the summons or notice to an officer or agent for the purpose of ensuring compliance but must ensure those persons do not further disclose except as permitted (s 22(2)(c), s 22(3)-(4)). Keep tightly controlled internal distribution lists and log access.
Preserve relevant records and comply with notices to produce: Notices under s 20 require attendance and production of specified documents. Before deletion or destruction, consider the examiner’s notice; for items seized under s 29, retention by the ACC head may be lawful while reasonably necessary for the operation (s 29(11)).
For lawyers advising witnesses
Advise on scope of privilege: Legal professional privilege is expressly preserved (s 23(9)). If a lawyer is required to answer or produce privileged communications, the lawyer may refuse unless the client consents (s 23(4)). If the lawyer refuses, the lawyer may need to provide the name and address of the person to whom or by whom the communication was made (s 23(5)).
Plan for confidentiality constraints: Lawyers receiving annotated documents must not disclose the existence of the document or connected official matters except as permitted (s 22(3)-(4)). Counsel should advise clients and limit written records that could breach s 22(3) obligations after they cease to be permitted recipients.
Prepare for potential court certificate applications: If a witness is charged and a court considers in the interests of justice that particular evidence given before an examiner should be made available, the court may issue a certificate and the examiner/CEO must then make the evidence available to the court (s 18(13)-(15)). Counsel should monitor related criminal proceedings.
For public authorities and law enforcement
Manage transfers of evidence correctly: The CEO must assemble and give admissible evidence obtained by ACC operations to prosecuting authorities or law enforcement agencies (s 34(1)-(2)). Ensure secure chains of custody and formal transfer mechanisms, and that receiving agencies respect any publication or secrecy directions.
Coordinate with the ACC and respect inter-agency reporting: The ACC must, so far as practicable, work in cooperation with law enforcement agencies and may coordinate with overseas authorities (s 37). Establish points of contact and processes for information exchange consistent with the CEO’s discretion under s 45.
For ACC Board and CEO actors
Observe voting and quorum rules strictly: Board determinations require specified majorities and quorum rules (ss 11-12). Document votes and ensure the presence of the minimum number of eligible Commonwealth Board members where required (s 12(4)).
Record reasons and procedural steps: Examiners and issuing officers must record reasons in writing before issuing summonses or notices and issuing officers must state which grounds they relied on when granting warrants (ss 19(2)-(3), 20(2)-(3), 29(4)-(6)). Maintain clear contemporaneous records to support later use and to comply with s 30 telephonic warrant follow-up requirements.
Manage publication directions with caution: Examiners’ directions restricting publication must be issued where failure to do so would prejudice safety, reputation or fair trial (s 18(10)-(11)). The CEO may, in writing, vary or revoke such directions but must not do so where variation would prejudice safety or fair trial (s 18(11)-(12)). Keep written internal protocols for assessing publication risks.
Comply with inter-governmental information requests and reporting obligations: The chair must report to the Commonwealth Minister and, subject to safety considerations, to the State Minister and Inter-Governmental Committee per s 45. Annual reports must include specified contents (s 51). Ensure that reports omit identifying material that could prejudice safety, reputation or fair trial.
General practical compliance steps
Immediately log receipt of any ACC process (summons, notice, warrant): note dates, grounds, accompanying Board determination (s 19(4)), any notations and the written statement of rights.
Restrict access to documents and communications that could identify an examination participant or reveal official matters; label documents according to nondisclosure obligations and maintain chain-of-custody logs for produced items (ss 21-22, 18(9)).
Obtain and preserve legal advice and internal communications relating to compliance; however, be mindful of s 22(3) constraints on making records once no longer permitted to hold or disclose them.
Where possible, negotiate timing and manner of production to preserve privilege and limit operational prejudice, and use counsel to pursue narrow, legally required disclosure only.
If seeking to challenge an issuing officer’s warrant, examine whether the required affidavit and recorded grounds are present and adequate (s 29(4)-(6)), remembering the statutory constraints on challenging Board determinations in State courts (s 36).
These compliance steps are drawn directly from the statutory mechanics. They translate the Act’s obligations into operational checklists for witnesses, lawyers, agencies and ACC personnel and are tailored to the Act’s mix of compulsory powers, secrecy obligations and judicial oversight.
Part pt.2The Australian Crime Commission, the Board and the Inter-Governmental Committee
pt.2 The Australian Crime Commission, the Board and the Inter-Governmental Committee
The Australian Crime Commission, the Board and the Inter-Governmental Committee
pt.2-div.1 The Australian Crime Commission
The Australian Crime Commission
sec.5 Functions of ACC
sec.5 Functions of ACC
The ACC has the following functions—
to undertake an intelligence operation in so far as the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect);
to investigate a matter relating to a relevant criminal activity, in so far as the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect);
to provide a report to the Board on the outcome of an operation mentioned in paragraph (a) or an investigation mentioned in paragraph (b) ;
the functions conferred on the ACC by other provisions of this Act or any other Act.
(a) to undertake an intelligence operation in so far as the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect);
(b) to investigate a matter relating to a relevant criminal activity, in so far as the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect);
(c) to provide a report to the Board on the outcome of an operation mentioned in paragraph (a) or an investigation mentioned in paragraph (b) ;
(d) the functions conferred on the ACC by other provisions of this Act or any other Act.
sec.6 CEO to manage ACC operations/investigations
sec.6 CEO to manage ACC operations/investigations
The CEO is to manage, coordinate and control ACC operations/investigations.
As soon as practicable after the Board consents under section 55A (3) of the ACC Act to the ACC undertaking an intelligence operation under section 5 (a) or conducting an investigation under section 5 (b) , the CEO must determine, in writing, the head of the operation or investigation.
Before the CEO determines the head of the operation or investigation, the CEO must consult the chair of the Board, and the other members of the Board the CEO thinks appropriate, in relation to the determination.
Subject to the consultation with the examiners as is appropriate and practicable, the CEO may make arrangements as to the examiner who is to be able to exercise his or her powers under this Act in relation to a special ACC operation/investigation.
(sec.6-ssec.1) The CEO is to manage, coordinate and control ACC operations/investigations.
(sec.6-ssec.2) As soon as practicable after the Board consents under section 55A (3) of the ACC Act to the ACC undertaking an intelligence operation under section 5 (a) or conducting an investigation under section 5 (b) , the CEO must determine, in writing, the head of the operation or investigation.
(sec.6-ssec.3) Before the CEO determines the head of the operation or investigation, the CEO must consult the chair of the Board, and the other members of the Board the CEO thinks appropriate, in relation to the determination.
(sec.6-ssec.4) Subject to the consultation with the examiners as is appropriate and practicable, the CEO may make arrangements as to the examiner who is to be able to exercise his or her powers under this Act in relation to a special ACC operation/investigation.
sec.7 Counsel assisting ACC
sec.7 Counsel assisting ACC
The CEO may appoint a lawyer to assist the ACC as counsel in relation to ACC operations/investigations generally or in relation to a particular matter or matters.
pt.2-div.2 The Board of the ACC
The Board of the ACC
sec.8 Functions of the Board
sec.8 Functions of the Board
The Board has the following functions—
to determine, in writing, whether an ACC State intelligence operation is a special operation or whether an ACC State investigation is a special investigation;
to determine, in writing, the class or classes of persons to participate in an ACC State intelligence operation or ACC State investigation;
to establish task forces;
the other functions conferred on the Board by other provisions of this Act.
The Board may determine, in writing, that an ACC State intelligence operation is a special operation.
Before making a determination under subsection (2) , the Board must consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective.
The Board may determine, in writing, that an ACC State investigation is a special investigation.
Before making a determination under subsection (4) , the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective.
A determination under subsection (2) or (4) must—
describe the general nature of the circumstances or allegations constituting the relevant criminal activity to which the operation or investigation relates; and
state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State but need not specify the particular offence or offences; and
set out the purpose of the operation or investigation.
The chair of the Board must, within the period of 3 days beginning on the day a determination under subsection (2) or (4) is made, give a copy of the determination to the Inter-Governmental Committee.
A determination under subsection (2) or (4) has effect immediately after it is made.
Sections 9 to 15 have effect in relation to the Board’s functions under this Act.
(sec.8-ssec.1) The Board has the following functions— to determine, in writing, whether an ACC State intelligence operation is a special operation or whether an ACC State investigation is a special investigation; to determine, in writing, the class or classes of persons to participate in an ACC State intelligence operation or ACC State investigation; to establish task forces; the other functions conferred on the Board by other provisions of this Act.
(sec.8-ssec.2) The Board may determine, in writing, that an ACC State intelligence operation is a special operation.
(sec.8-ssec.3) Before making a determination under subsection (2) , the Board must consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective.
(sec.8-ssec.4) The Board may determine, in writing, that an ACC State investigation is a special investigation.
(sec.8-ssec.5) Before making a determination under subsection (4) , the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective.
(sec.8-ssec.6) A determination under subsection (2) or (4) must— describe the general nature of the circumstances or allegations constituting the relevant criminal activity to which the operation or investigation relates; and state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State but need not specify the particular offence or offences; and set out the purpose of the operation or investigation.
(sec.8-ssec.7) The chair of the Board must, within the period of 3 days beginning on the day a determination under subsection (2) or (4) is made, give a copy of the determination to the Inter-Governmental Committee.
(sec.8-ssec.8) A determination under subsection (2) or (4) has effect immediately after it is made.
(sec.8-ssec.9) Sections 9 to 15 have effect in relation to the Board’s functions under this Act.
(a) to determine, in writing, whether an ACC State intelligence operation is a special operation or whether an ACC State investigation is a special investigation;
(b) to determine, in writing, the class or classes of persons to participate in an ACC State intelligence operation or ACC State investigation;
(c) to establish task forces;
(d) the other functions conferred on the Board by other provisions of this Act.
(a) describe the general nature of the circumstances or allegations constituting the relevant criminal activity to which the operation or investigation relates; and
(b) state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the State but need not specify the particular offence or offences; and
(c) set out the purpose of the operation or investigation.
sec.9 Board meetings
sec.9 Board meetings
The chair of the Board may convene meetings of the Board.
The chair, in exercising his or her power to convene meetings, must ensure that meetings of the Board are scheduled to meet the requirements set out in section 7D of the ACC Act .
(sec.9-ssec.1) The chair of the Board may convene meetings of the Board.
(sec.9-ssec.2) The chair, in exercising his or her power to convene meetings, must ensure that meetings of the Board are scheduled to meet the requirements set out in section 7D of the ACC Act .
sec.10 Presiding at Board meetings
sec.10 Presiding at Board meetings
A meeting of the Board must be presided over by—
if the chair of the Board is present—the chair; or
otherwise—another eligible Commonwealth Board member who is present and who is nominated, in writing, by the chair to preside.
(a) if the chair of the Board is present—the chair; or
(b) otherwise—another eligible Commonwealth Board member who is present and who is nominated, in writing, by the chair to preside.
sec.11 Quorum at Board meetings
sec.11 Quorum at Board meetings
At a meeting of the Board a quorum is constituted by 9 Board members (not including the CEO).
s 11 amd 2016 No. 48 s 4
sec.12 Voting at Board meetings
sec.12 Voting at Board meetings
Subject to this section, a question arising at a meeting of the Board is to be determined by a majority of the votes of Board members present.
The person presiding at a meeting has—
a deliberative vote; and
if necessary, also a casting vote.
The CEO is not entitled to vote on any question arising at a meeting of the Board.
The Board can not determine that an ACC State intelligence operation is a special operation, or that an ACC State investigation is a special investigation, unless at least 9 Board members (including at least 2 eligible Commonwealth Board members) vote in favour of making the determination.
(sec.12-ssec.1) Subject to this section, a question arising at a meeting of the Board is to be determined by a majority of the votes of Board members present.
(sec.12-ssec.2) The person presiding at a meeting has— a deliberative vote; and if necessary, also a casting vote.
(sec.12-ssec.3) The CEO is not entitled to vote on any question arising at a meeting of the Board.
(sec.12-ssec.4) The Board can not determine that an ACC State intelligence operation is a special operation, or that an ACC State investigation is a special investigation, unless at least 9 Board members (including at least 2 eligible Commonwealth Board members) vote in favour of making the determination.
(a) a deliberative vote; and
(b) if necessary, also a casting vote.
sec.13 Conduct of Board meetings
sec.13 Conduct of Board meetings
The Board may regulate proceedings at its meetings as it considers appropriate.
The Board must ensure that minutes of its meetings are kept.
(sec.13-ssec.1) The Board may regulate proceedings at its meetings as it considers appropriate.
(sec.13-ssec.2) The Board must ensure that minutes of its meetings are kept.
sec.14 Resolutions outside of Board meetings
sec.14 Resolutions outside of Board meetings
This section applies to a resolution—
that, without being considered at a meeting of the Board, is referred to all members of the Board; and
of which—
if subparagraph (ii) does not apply—a majority of those members (not including the CEO); or
if the resolution is that the Board determine that an ACC State intelligence operation is a special operation, or that an ACC State investigation is a special investigation—at least 9 Board members (not including the CEO but including at least 2 eligible Commonwealth Board members);
indicate by telephone or other mode of communication to the chair of the Board that they are in favour.
The resolution is as valid and effectual as if it had been passed at a meeting of the Board duly convened and held.
(sec.14-ssec.1) This section applies to a resolution— that, without being considered at a meeting of the Board, is referred to all members of the Board; and of which—
This is an opening excerpt, not the complete document.