Australian Crime Commission Regulations 2018

The Regulations primarily affect the operation of the Australian Criminal Intelligence Commission and its examination and intelligence functions. Practical impacts extend to:

Witnesses and examined persons: Sections 9 and 11 directly affect persons who receive notices or summonses under the ACC Act. Such persons are entitled to expenses as prescribed, including reasonable travel and accommodation costs for out-of-town appearances, and lost wages or a fixed hourly rate for other expenses.

Bodies on the prescribed lists: Bodies listed in Schedules 1, 7, 8, and 9 may receive information from the ACIC that they would not otherwise lawfully receive. Their inclusion in the Schedules is itself a regulatory decision with significant intelligence and law enforcement implications.

State and territory agencies: State agencies whose enabling laws are listed in Schedules 4, 5, and 6 may have those laws applied in the context of ACIC operations and examinations, potentially extending ACIC powers or enabling state law enforcement agencies to participate in ACIC operations.

Practitioners in criminal and administrative law: The Regulations are referenced in contempt of examination, judicial review, and criminal proceedings involving ACIC examinations. The name and acronym provisions in section 8 have been cited in proceedings to confirm the ACIC's identity and authority.

The Regulations impose obligations principally on the ACIC and on persons involved in examinations:

Service of summonses (section 12): The ACIC must serve summonses in accordance with the detailed rules in section 12. Personal delivery is the primary method for natural persons. A body corporate summons may be delivered to an officer at the body's registered or principal office or sent by post. Electronic service is available where the person has nominated an electronic address, or where Federal Court Rules 2011 service rules permit it. Where ordinary service fails, an examiner may seek judicial directions for alternative service, but only on a written application satisfying the conditions in section 12(5).

Witness expenses (sections 9 and 11): The ACIC must pay prescribed expenses to witnesses and persons appearing under section 21A notices. Expert witnesses are entitled to the rate in the Royal Commissions Regulations 2019; other witnesses to lost wages or a statutory hourly rate. All witnesses are entitled to reasonable travel and overnight accommodation costs.

The Regulations confer powers principally on the ACIC as a whole:

CEO accreditation of bodies (section 6(1)(a)): The CEO may approve bodies as accredited bodies under subsection 46A(5) of the Act, making them bodies that collect national policing information without the need for amendment to Schedule 1. This gives the CEO operational flexibility to expand the information-sharing network without regulatory amendment.

Judicial directions for service (section 12(2)(d) and (5)): A Judge (of the Federal Court, the Federal Circuit and Family Court Division 2, or a state or territory court) may direct alternative methods of service where ordinary service has failed or is unlikely to succeed, and where the alternative method is likely to bring the summons to the person's attention.

The Regulations do not themselves create criminal offences or civil penalties. Enforcement of ACC examinations, including the obligation to attend and answer questions, is governed by the Act rather than the Regulations. The cases linked to this instrument (Australian Crime Commission v DTO21 [2022] FCA 288 and Anderson v EVA20 [2021] FCA 457) both involve contempt proceedings for refusal to answer questions at ACIC examinations, but these proceedings are brought under section 34A of the Act, not the Regulations.

Service timelines (section 12): No fixed minimum service period before the examination date is prescribed by these Regulations; that is set by the summons itself as issued under section 28 of the Act. The service procedures in section 12 govern the method but not the notice period.

Warrant forms (sections 10 and 13): Search warrants issued under section 22 of the Act may (not must) be in Form 1 of Schedule 3. Arrest warrants under section 31 may (not must) be in Form 2 of Schedule 3. The "may" formulation means the forms are optional approved templates rather than mandatory forms.

Electronic service: Electronic service is available immediately if the person has nominated an electronic address. Federal Court Rules 2011 alternative service methods are also directly available where those rules apply to the relevant summons type.

Australian Crime Commission Act 2002 (Cth): The parent Act is the source of every enabling power exercised by these Regulations. All operational provisions cross-reference specific sections of the Act.

Criminal Code (Cth): Section 7 prescribes Divisions 272 and 273 offences (child exploitation) as serious and organised crime offences for the definition in the Act. This extends the ACIC's operational mandate to child exploitation investigations.

Royal Commissions Regulations 2019 (Cth): The witness expense scale in section 11 cross-references subparagraphs 6(1)(a)(i) and 6(1)(a)(ii) of those Regulations for the expert witness rate and general witness rate respectively. Changes to the Royal Commissions Regulations automatically affect ACC witness expense entitlements.

Federal Court Rules 2011 (Cth): Rules 10.02, 10.03, 10.04, 10.05, 10.09, and 10.22 of the Federal Court Rules are incorporated into section 12(4)(b) for the purposes of electronic and alternative service of summonses.

State and territory laws listed in Schedules 4, 5, and 6: These are the laws of NSW, Victoria, Queensland, Western Australia, South Australia, Tasmania, the ACT, and the Northern Territory that may, when activated through ACIC operations, confer powers on the ACC, on partner agencies, or on Federal Court judges. The Schedule 4 tables alone span more than 800,000 characters of the instrument, reflecting the breadth of state law engagement in ACIC operations.

The ACIC name is regulatory, not primary legislation: The ACIC's operating name "Australian Criminal Intelligence Commission" comes from regulation 8 of these Regulations, not from the Australian Crime Commission Act. The Act still refers to the body as the "ACC". In litigation, the identity of the ACIC as the ACC has been confirmed by the courts (see DTO21 [2022] FCA 288 at [1]; FAN19 [2021] FCA 100 at [9]), but practitioners should be aware that a challenge to a regulation 8 instrument could theoretically affect the ACIC's authority to act in its current name.

CEO accreditation bypass (section 6(1)(a)): The CEO can expand the list of bodies authorised to collect national policing information without legislative amendment by approving bodies as accredited bodies under subsection 46A(5) of the Act. This is a significant delegated power that can expand the information-sharing regime without parliamentary scrutiny of the particular expansion.

Witness expense rates are by cross-reference: The expert witness rate in section 11, item 1, is not set in dollars in these Regulations but by cross-reference to the Royal Commissions Regulations 2019. If those Regulations change, the ACC witness rate changes automatically. Practitioners advising witnesses about their expense entitlements should check the current Royal Commissions Regulations.

Section 7: Division 272/273 as serious and organised crime: The inclusion of child exploitation offences (Divisions 272 and 273 of the Criminal Code) as prescribed serious and organised crime offences means the ACIC has coercive examination powers available in child exploitation investigations, not just organised crime investigations in the traditional sense. This is a broad and sometimes underappreciated aspect of the ACIC's operational mandate.

Example 1: Witness appearing under a section 21A notice A witness receives a notice under section 21A of the Act requiring attendance at an ACIC examination in a city 600 kilometres from their usual residence. Under section 9, the ACIC must pay a reasonable travel allowance covering return travel and, because the witness must stay overnight, reasonable meals and accommodation. If the witness is employed and loses wages because of the attendance, the ACIC must also pay the lost wages. If the witness is not employed in a remunerated role, the ACIC must pay $25 per hour of the appearance.

Example 2: Serving a summons on a body corporate An ACIC examiner issues a summons to a company under section 28 of the Act. Under section 12(3), the ACIC may serve the summons by delivering a copy to an officer of the company at its head office or registered office, or by sending it to any postal address of the company by registered post or certified mail. If the company's legal team has provided a nominated electronic address, service may also be effected electronically under section 12(4)(a).

Example 3: Confirming the ACIC's identity in proceedings In proceedings for contempt of an ACIC examination, a respondent questions whether the "Australian Criminal Intelligence Commission" is the same entity as the "Australian Crime Commission" that is created by the Act. The ACIC relies on section 8 of these Regulations, made under subsection 7(1A) of the Act, which specifies "Australian Criminal Intelligence Commission" as a name by which the ACC may also be known. This was confirmed in Australian Crime Commission v DTO21 [2022] FCA 288, where the court noted at paragraph [1] that "By operation of s 7(1A) of the ACC Act and s 8 of the Australian Crime Commission Regulations 2018 (Cth), the ACC is also known as the Australian Criminal Intelligence Commission (ACIC)."

Example 4: WAPOL officer participation in an ACIC examination A state police officer asks to attend an ACIC examination to assist the examiner. The relevant state law (Western Australia Police Act or similar) conferring powers on persons assisting ACIC operations must be listed in Schedule 5 of these Regulations for the purposes of subsection 55A(4)(b)(ii) of the Act. If the relevant law is listed, the officer may be authorised to be present under section 25A(3) of the Act. The FAN19 case [2021] FCA 100 involved exactly this situation in the context of the High Risk and Emerging Drugs operation.