Australian Crime Commission (South Australia) Act 2004

The central organising concept is the definition of “serious and organised crime” in s 3(1). It means an offence that involves two or more offenders and substantial planning and organisation; ordinarily involves sophisticated methods and techniques; is ordinarily committed in conjunction with other like offences; is an offence of a kind prescribed by regulations or an offence that involves any of eighteen listed categories (including theft, fraud, tax evasion, money laundering, illegal drug dealings, extortion, violence, bribery, cybercrime and matters of the same general nature); and is punishable by imprisonment for three years or more. It expressly excludes offences committed in the course of a genuine industrial dispute unless part of a course of activity involving other serious and organised crime, and excludes offences where prosecution is time-barred (s 3(1), paras (f) and (g)). A critical extension is in s 3(3): if the head of an ACC operation or investigation suspects that an offence that is not a serious and organised crime may be directly or indirectly connected with a course of activity involving a serious and organised crime, that incidental offence is taken for the purposes of the Act to be a serious and organised crime for as long as the head so suspects. This allows the ACC to pursue related offences that might not independently meet the definition.

The Act distinguishes between “ACC State intelligence operations” and “ACC State investigations” (s 3). An intelligence operation is primarily directed towards collection, correlation, analysis or dissemination of criminal information and intelligence relating to relevant criminal activity, but may involve investigation of matters relating to that activity. An investigation is a direct investigation into a matter. Both become “special” when the Board makes a written determination under s 8(2) or (3). For a special operation or investigation, the ACC can use examination powers under Part 3 and search warrant powers under Part 4. Before making a determination, the Board must consider whether methods not involving the Act’s powers (for operations) or ordinary police methods (for investigations) have been or are likely to be effective (s 8(2)-(3)). The determination must describe the general nature of the circumstances, state that the serious and organised crime is an offence against State law (but need not specify the particular offence), and set out the purpose (s 8(4)). The determination has effect immediately (s 8(6)).

Other key concepts include “examiner” (an officer who conducts examinations), “issuing officer” (a Judge of the Federal Court, a State judge, or a Federal Magistrate for search warrants), “in contempt of the ACC” (defined in s 26A to cover refusal to take oath, answer questions, produce documents, giving false evidence, obstructing, disrupting or threatening), and “eligible person” for search warrants (a member of the ACC staff or a State police officer). The Act also uses terms from the Commonwealth ACC Act (s 3(2)) and provides that references to functions include powers and duties (s 3(4)). The double jeopardy provision in s 39 prevents double punishment for the same act under both this Act and the ACC Act, and prevents both contempt proceedings and prosecution for the same act.

The Act directly affects several categories of persons and bodies. First, Commonwealth bodies and persons (defined in s 3) are the primary actors: the ACC, the Board, the Chair of the Board, Board members, the Inter-Governmental Committee, the CEO, ACC staff, legal practitioners appointed as counsel, examiners, Judges of the Federal Court and Federal Magistrates. These persons are given functions and powers under the Act, and are also subject to duties (for example, the secrecy duty in s 44 applies to the CEO, Board members, ACC staff and examiners). The CEO is specifically tasked with managing operations and assembling evidence (ss 6, 34). Examiners have the power to summon witnesses, issue notices to produce documents, and conduct examinations (ss 17-20). The Board must make special determinations and may establish committees (ss 8, 15). The Inter-Governmental Committee has oversight and revocation powers (s 16). State Ministers are affected: the State Minister administering this Act may make arrangements with the Commonwealth Minister for information sharing (s 40) and for secondment of State officers to the ACC (s 41). The State Minister also receives reports and must table annual reports in Parliament (s 49(5)). State judges may perform functions under the ACC Act (s 42). Issuing officers (including State judges) must consider applications for search warrants (ss 29, 30).

Second, private individuals and organisations are significantly affected when they become subject to ACC investigations. Persons who are summoned to appear at an examination under s 19, or who receive a notice to produce documents under s 20, must comply or face criminal penalties. Those persons may include targets of investigations, witnesses, employees of entities under investigation, or anyone who may have relevant information. Legal practitioners representing witnesses have rights to appear (s 18(2)) but also duties, including the obligation under s 23(3) to disclose the name and address of the client if they refuse to answer or produce on grounds of legal professional privilege. Individuals who are present at examinations must comply with directions as to who may be present (s 18(3)-(5)). The Act also protects persons who may be at risk of harm or intimidation: an examiner may make arrangements to protect them (s 26). Affected persons include those whose property may be seized under a search warrant (s 29), and those whose passports may be ordered to be delivered up (s 28). Law enforcement agencies of the State and Commonwealth are affected as recipients of evidence assembled by the CEO (s 34) and as bodies with which the ACC must cooperate (s 37). Finally, any person who may be prosecuted for an offence under the Act (e.g., for failing to comply, giving false evidence, or breaching secrecy) is directly affected.

The Act imposes several key duties and confers correlative rights. The most important duty for witnesses and document holders is the obligation to comply with a summons to appear and give evidence (s 23(1)-(2)) and to comply with a notice to produce documents (s 20(4)). Failure is an offence punishable by up to five years imprisonment (ss 20(5), 23(6)). A witness must take an oath or affirmation when required (s 19(6)). A witness must also answer questions put by the examiner (s 23(2)(b)), subject to two critical protections. First, legal professional privilege is preserved: a legal practitioner is entitled to refuse to answer or produce a document if it would disclose a privileged communication, but must, if required, give the examiner the name and address of the client who holds the privilege (s 23(3)). Second, a limited use immunity applies under s 23(4)-(5): if a witness claims that an answer or production might tend to incriminate or expose them to a penalty, the answer or document is not admissible in criminal or penalty proceedings (other than confiscation proceedings or proceedings for falsity). This immunity only applies if the document in question is a business record of the person’s employment earnings and sets out no other information. In all other cases, the privilege against self-incrimination is not otherwise protected, meaning a witness can be compelled to answer even self-incriminating questions. The examiner must also be satisfied it is reasonable to issue a summons or notice and must record reasons (ss 19(2), 20(2)). A witness has a right to be represented by a legal practitioner at the examination (s 18(2)(a)), and a person not giving evidence may be represented with the examiner’s consent (s 18(2)(b)). The witness must be informed of other persons present and given an opportunity to comment (s 18(7)). The examiner must give non-publication directions if failure to do so might prejudice safety, reputation, or fair trial (s 18(9)). Those directions may be varied or revoked by the CEO only if the variation would not cause such prejudice (s 18(10)-(11)). The Act also imposes a duty on the CEO to assemble evidence of an offence obtained by the ACC and give it to the appropriate Attorney-General, law enforcement agency, or prosecuting authority (s 34(1)). That duty is mandatory. For confiscation proceedings evidence, the CEO may assemble and give it (s 34(2)). The Chair of the Board has duties to keep the Commonwealth Minister informed and to comply with requests for information from the Inter-Governmental Committee, subject to a public interest override (s 43). The secrecy duty under s 44 applies to the CEO, Board members, ACC staff and examiners: they must not make records or divulge information acquired in the course of their functions except for the purposes of a relevant Act. This duty continues after they cease to hold office. They also cannot be required to produce documents in court except where the ACC or relevant office-holder is a party or it is necessary for carrying out the Act or for a prosecution resulting from an ACC operation (s 44(3)).

The Act creates a range of criminal offences with specified maximum penalties. The most serious offences carry a maximum penalty of $22,000 or imprisonment for five years, or both. Those include: failure to comply with a notice to produce documents (s 20(5)); failure of a witness to attend, answer questions, or produce documents as required by summons (s 23(6)); giving false or misleading evidence at an examination (s 25(2)); and obstructing, hindering or disrupting the ACC or an examiner (s 47(2)). Lesser offences carry a maximum penalty of $2,200 or imprisonment for one year, or both. Those include: being present at an examination in contravention of s 18(5) or publishing in contravention of a non-publication direction (s 18(14)); disclosing the existence of a summons or notice that contains a non-disclosure notation (s 22(1) and (3)); and breaching the secrecy duty (s 44(2)). Importantly, s 22(5) provides that the disclosure offence ceases to apply after the notation is cancelled under s 21(4) or after five years from issue, whichever is sooner.

Enforcement is primarily through prosecution in the ordinary courts. However, the Act also provides a unique contempt mechanism in ss 26A to 26F. Section 26A defines contempt of the ACC to include: refusing to take oath, answer questions, or produce documents when required; a legal practitioner refusing to comply with a requirement and failing to give the name and address of the client; giving false or misleading evidence; obstructing or hindering an examiner; disrupting an examination; or threatening a person present. If an examiner believes a person is in contempt, they may apply to the Supreme Court (s 26B(1)). The examiner must inform the person and provide a certificate with grounds and evidence (s 26B(2)-(4)). The Supreme Court can then deal with the person as if the act or omission constituted contempt of that Court (s 26B(5)). While the application is being prepared, the examiner may direct a constable to detain the person during the hearing (s 26D(1)). The person must be brought before the Court as soon as practicable, and the Court may release them on conditions (including passport surrender, reporting to a law enforcement agency) or order continued detention until the application is determined (s 26D(3)-(4)). The examiner may withdraw the application at any time, triggering immediate release (s 26E). Section 26F clarifies that evidence relating to a contempt application is not required to be given to a person or authority under s 34(1). A double jeopardy provision in s 39(2)-(3) prevents both contempt proceedings and prosecution for the same act or omission. Search warrants are enforced by execution under s 29, with reasonable force permitted (s 29(8)). The warrant may be executed at any time as specified, and things seized may be retained as necessary for the operation (s 29(10)).

The Act operates alongside and is expressly dependent upon the Commonwealth Australian Crime Commission Act 2002 (the ACC Act). Section 3(2) provides that if this Act uses a term used in the ACC Act, that term has the same meaning unless the contrary intention appears. The conferral of functions on Commonwealth bodies or persons by this Act is subject to any provision of the ACC Act that requires Board consent before the function can be performed (s 31). The Board’s meeting requirements are linked to those in s 7D of the ACC Act (s 9(2)). The Chair of the Board must give a copy of any special determination to the Inter-Governmental Committee within 7 days (s 8(5)). The CEO’s functions of managing operations are exercised “as soon as practicable after the Board consents under section 55A(3) of the ACC Act” to the undertaking of an operation or investigation (s 6(2)). Section 39(1) prevents double jeopardy where an act or omission is an offence under both this Act and the ACC Act and the person has already been punished under the ACC Act: they are not liable to be punished under this Act. Section 50 validates anything done for the purposes of this Act even if also done for the purposes of the ACC Act.

The Act also interacts with State law. Section 32 provides that a Commonwealth body or person is not precluded by any State law from performing a function conferred by this Act. This gives the ACC priority over conflicting State laws. Section 33 limits the imposition of duties on Commonwealth bodies to those within State legislative power. Section 36 creates an ouster clause: if a Board determination is made that an operation or investigation is special, any act done because of that determination cannot be challenged, reviewed, quashed or called in question in any State court on the ground that the determination was not lawfully made, except in proceedings instituted by the Attorney-General of the Commonwealth or of a State. This severely limits judicial review of the threshold decision to use coercive powers. Section 42 allows State judges to perform functions under ss 22, 23 or 31 of the ACC Act. Section 37 requires the ACC to work in cooperation with law enforcement agencies so far as practicable, and to coordinate with overseas authorities performing similar functions.

The Act also interacts with the National Crime Authority (State Provisions) Act 1984 through transitional provisions in Schedule 1, Part 7. That earlier Act was repealed by this Act. Investigations commenced under the NCA but not completed by 1 January 2003 are taken to be special investigations (s 14). Evidence obtained by the NCA but not yet assembled is treated as if obtained by the ACC (s 15). Arrangements for information sharing, witness protection, administrative arrangements and secrecy obligations from the NCA continue in force under equivalent provisions of this Act (ss 17, 21, 22, 23). The validation Act (Co-operative Schemes (Administrative Actions) Act 2001) applies to administrative actions under the NCA Act as if it were still in force (s 24).

The Act was originally passed as the Australian Crime Commission (South Australia) Act 2004 (Act No 7 of 2004), assented to on 8 April 2004 and commenced on 6 May 2004. It repealed the National Crime Authority (State Provisions) Act 1984. The Act has been amended by several subsequent Acts. The first amendment was by the Statutes Amendment (Justice Portfolio) Act 2006 (Act No 44 of 2006), which came into operation on 18 January 2007. It amended the definition of “Commonwealth body or person” in s 3(1) to include a legal practitioner appointed under s 7 of the Act. It also amended the long title and omitted s 2 (the object clause) under the Legislation Revision and Publication Act 2002.

A more substantial amendment occurred through the Statutes Amendment (Serious and Organised Crime) Act 2012 (Act No 12 of 2012), which came into operation on 17 June 2012. This amendment inserted the definition of “constable” into s 3(1), inserted the definition of “in contempt of the ACC”, and substituted the definition of “intelligence operation”. It also amended s 8(5) (the requirement to give a copy of a special determination to the Inter-Governmental Committee). Most significantly, it inserted an entirely new set of provisions into Part 3: ss 26A to 26F, creating the contempt of the ACC regime and the Supreme Court’s power to deal with it. It also amended s 39 by redesignating the existing provision as s 39(1) and adding subsections (2) and (3) to prevent double jeopardy for contempt applications and prosecutions.

The Independent Commissioner Against Corruption Act 2012 (Act No 52 of 2012) amended s 18(6) (the provision allowing examination and cross-examination at examinations) by substituting a reference from the Commonwealth Ombudsman to the Independent Commissioner Against Corruption. This commenced on 24 November 2014. The same day, the Australian Crime Commission (South Australia) (Examinations) Amendment Act 2014 (Act No 13 of 2014) further amended s 18(6) to give the examiner discretion to allow any person authorised by the examiner to appear and examine or cross-examine witnesses. Schedule 1, Part 7 contains transitional provisions that took effect upon commencement; the earlier Parts 1-6 of Schedule 1 were omitted under the Legislation Revision and Publication Act 2002 on 18 January 2007. The legislative history records historical versions from 18 January 2007 and 17 June 2012.

The Act itself does not reference any specific litigation, nor does its text discuss past court cases. However, the Act contains several provisions that anticipate court involvement. Section 24 allows a Judge of the Federal Court or the Supreme Court to issue a warrant for the arrest of a witness who has absconded or is likely to abscond, or who has committed an offence under s 23(1) (failure to attend and answer questions). That provision also allows for bail or continued detention. Section 28 provides for a Judge of the Federal Court to order the delivery of a passport. Section 29 and 30 provide for issuing officers (which include State judges) to issue search warrants. Section 42 expressly permits State judges to perform functions under sections 22, 23 or 31 of the ACC Act. Section 26B provides that if an examiner applies to the Supreme Court for a person to be dealt with for contempt of the ACC, the Supreme Court may deal with the person as if the acts or omissions constituted contempt of that Court. This means that the Supreme Court can impose penalties for contempt (including imprisonment, fines, or other orders) under its existing contempt jurisdiction.

Section 36 is a particularly significant provision for litigation: it prevents any challenge in a State court to acts done because of a Board special determination, except in proceedings instituted by the Attorney-General of the Commonwealth or of a State. This ouster clause would likely be litigated in cases where a person subject to an examination or search warrant seeks to challenge the lawfulness of the Board’s determination. The section explicitly targets State courts, but does not purport to limit federal judicial review under the Constitution. Section 26C(2) provides that contempt proceedings under s 26B are to be conducted in accordance with the laws (including Rules of Court) that apply to punishment of contempt of the Supreme Court. Section 26C(3) creates a rule of evidence: the examiner’s certificate is prima facie evidence of the matters specified in it.

Practitioners should be alert to several traps. The most significant is the limited scope of the privilege against self-incrimination. Section 23(4)-(5) provides a use immunity, but only for documents that are business records of earnings and only if the witness claims the privilege. For all other answers or documents, the compulsion to answer is absolute and the answer can be used in prosecution for any offence (except the very limited categories). A witness cannot simply remain silent on grounds of self-incrimination; the examiner can compel an answer. The only protection is that the answer is not admissible in criminal or penalty proceedings, but it may be used in confiscation proceedings and proceedings for falsity. This is a narrow shield.

Second, legal professional privilege is preserved for legal practitioners, but with a catch: if a legal practitioner refuses to answer or produce a document on the basis of privilege, they must give the examiner the name and address of the person to whom or by whom the communication was made (s 23(3)). Failure to do so is an offence (s 23(6)). This effectively forces disclosure of the client’s identity.

Third, the non-disclosure notation under s 21 can have serious consequences. If an examiner includes a notation in a summons or notice, the recipient cannot disclose the existence of the summons or any information about it (s 22). This prohibition extends to any person who receives information about it as a result of a permitted disclosure (s 22(3)). The notation lasts for five years from issue unless cancelled earlier (s 22(5)). A breach is a criminal offence. Practitioners should check any summons or notice carefully for such a notation. And the examiner must include the notation if satisfied that failure to do so would prejudice safety, reputation, fair trial, or effectiveness (s 21(2)(a)); they may include it if it might prejudice those things or might otherwise be contrary to public interest (s 21(2)(b)-(c)). This means many summonses will contain a notation.

Fourth, the ouster clause in s 36 is a strong limitation on judicial review. Unless the Attorney-General brings proceedings, a person subject to a special determination cannot challenge it in any State court on the ground that the determination was not lawfully made. This applies to any act done because of that determination. This could be used to prevent challenges to the validity of the Board’s reasoning or procedures.

Fifth, the contempt power under ss 26A-26F is swift and coercive. An examiner can direct a constable to detain a person during the examination pending a contempt application to the Supreme Court (s 26D(1)). The person may be detained for the purpose of bringing them before the Court. The Court can impose conditions on release, including passport surrender and reporting obligations. This is a powerful tool that can be used against an uncooperative witness.

Sixth, the secrecy duty under s 44 continues after a person ceases to be a CEO, Board member, staff member or examiner. Former officials remain bound for life by the secrecy obligation. They cannot be required to produce documents or divulge information in any court except in narrow circumstances (s 44(3)). This can create conflicts with other legal obligations, but the Act takes priority.

Seventh, the double jeopardy provisions in s 39 are nuanced: subsection (1) only applies if the person has been punished under the ACC Act for the same act or omission. If they have merely been prosecuted but not punished, they may still be punishable under this Act. Subsections (2)-(3) apply only to the interaction between contempt proceedings and prosecution: if the person is dealt with for contempt, they cannot be prosecuted for the same act, and vice versa.

Compliance depends on the role of the person or body subject to the Act.

For a person who receives a summons under s 19 or a notice under s 20: first, check whether the summons or notice contains a notation under s 21 prohibiting disclosure. If it does, do not disclose the existence of the summons or any information about it to anyone except a legal practitioner for the purpose of obtaining legal advice or representation (s 22(2)(b)), or if the person is a body corporate, to an officer or agent for ensuring compliance (s 22(2)(c)). If disclosure is made to a legal practitioner, that practitioner is bound by the same prohibition (s 22(3)). Second, attend the examination at the time and place specified. Third, if required, take an oath or make an affirmation (s 19(6)). Fourth, answer all questions put by the examiner, subject to the limited privilege for legal practitioners (s 23(3)) and the limited use immunity for self-incrimination (s 23(4)-(5)). If claiming the use immunity, state clearly before answering that the answer might tend to incriminate. Fifth, produce any documents or things as required by the summons or notice. Sixth, do not disrupt the examination or obstruct the examiner. If you are a legal practitioner representing a witness, you may examine and cross-examine witnesses with the examiner’s approval (s 18(6)). If you are the client of a legal practitioner and the practitioner refuses to answer on grounds of privilege, be aware that the practitioner must disclose your name and address to the examiner (s 23(3)). If you are a legal practitioner and you refuse on privilege grounds, give the name and address when required. Failure to do so is an offence.

For an examiner: before issuing a summons or notice, be satisfied that it is reasonable and record reasons in writing (ss 19(2), 20(2)). Include the Board determination with the summons (s 19(3)). Include a non-disclosure notation when required (s 21(2)). Ensure the examination is held in private (s 18(3)). Give a non-publication direction if failure might prejudice safety, reputation, or fair trial (s 18(9)). Inform the witness of any other persons present (s 18(7)). At the conclusion, give the head of the operation a record of proceedings and any documents (s 18(15)). If a person is in contempt, apply to the Supreme Court under s 26B, but first inform the person (s 26B(2)). Consider whether to detain them under s 26D.

For the CEO: determine the head of each operation or investigation after consulting the Chair of the Board (s 6(2)-(3)). Make arrangements as to which examiners will exercise powers (s 6(4)). Assemble evidence of offences and give it to the appropriate authority (s 34(1)). Delegate only to SES employees or acting SES employees (s 45). Maintain secrecy under s 44. Furnish reports to the Chair of the Board for inclusion in annual reports (s 49). Comply with requests for information from the Inter-Governmental Committee, subject to the public interest override (s 43). Issue annual reports that include descriptions of investigations, patterns of criminal activity, recommendations, information furnished, prosecution and confiscation results, and court proceedings (s 49(2)), but do not identify persons as suspects or un-convicted offenders (s 49(3)).

For the Board: ensure that any special operation or investigation determination complies with s 8(4) (description, purpose, etc). Before making a determination, consider whether other methods have been effective (s 8(2)-(3)). Achieve the required voting majority: at least nine Board members (including at least two eligible Commonwealth Board members) must vote in favour (s 12(4)). Give a copy of the determination to the Inter-Governmental Committee within seven days (s 8(5)). Convene meetings as needed (s 9). Keep minutes (s 13(2)). Do not allow a committee to determine whether an operation is special (s 15(4)). Keep the Commonwealth Minister informed (s 43(1)). Prepare annual reports (s 49). Hold public meetings or publish bulletins only if they do not disclose matters that could prejudice safety, reputation or fair trial (s 48(3)).

For the State Minister: make arrangements with the Commonwealth Minister for information and intelligence sharing (s 40) and for secondment of State officers (s 41). Lay annual reports before Parliament within 15 sitting days (s 49(5)). Determine whether disclosure of information to the Inter-Governmental Committee could prejudice safety or reputation if the Committee refers a request (s 16(5)). Provide copies of that determination without disclosing reasons (s 16(5)(c)). For any person exercising functions under the Act: read the relevant provisions carefully, particularly the secrecy obligations and the limited immunities, as the coercive powers are broad and penalties are severe.