Australian Crime Commission (State Provisions) Regulations 2024

The Australian Crime Commission (State Provisions) Regulations 2024 (SR No 6/2024) are a procedural instrument made under section 50 of the Australian Crime Commission (State Provisions) Act 2003 (Vic) (the Act). They prescribe three mechanical matters: the manner of serving a summons to appear before an examiner under the Act, the form of a warrant to apprehend a person under section 24 of the Act, and the form of a search warrant under section 29 of the Act. The regulations revoke and replace the 2014 regulations (SR No 4/2014), which they supersede in their entirety.

Regulation 5 is the operative provision for service of summons. It sets out a hierarchy of permitted service methods for natural persons and bodies corporate. For natural persons, primary service is personal delivery of a copy of the summons. If the person refuses to accept it, the server may put it down in the person's presence or leave it at the place or premises where the person is. Where those methods are not practicable, the server may use substitute methods: leaving a copy with a person over 16 at the person's last known or usual residence or business, sending by registered post or certified mail to that address, or delivering by electronic communication that is confirmed as having been received. Critically, subregulation (3) adds a fourth tier: on written application by an examiner, a Judge of the Federal Court, Supreme Court or County Court may direct service in an alternative manner (leaving with another person likely to bring it to the person's notice, or sending to an address the Judge believes is frequented by the person). For bodies corporate, service may be on an officer or employee at the head office, registered office, principal office or principal place of business; if the person refuses, the copy may be put down or left there. Postal and electronic methods are also available.

Regulation 6 requires that a warrant to apprehend under section 24(1) of the Act be in the form set out in Schedule 1. Regulation 7 requires that a search warrant under section 29 of the Act be in the form set out in Schedule 2. Both schedules reproduce the statutory templates with fields for the issuing officer to complete. The regulations do not expand or contract any substantive power under the Act; they merely specify the procedural forms and service rules that examiners, issuing officers and executing officers must follow. They came into operation on 6 February 2024 and will sunset on 6 February 2034 under the Subordinate Legislation Act 1994.

Summons service hierarchy. Regulation 5 establishes a cascading set of service options. The primary method for natural persons is personal delivery (reg 5(1)(a)). If the person refuses, the server may leave the summons in the person's presence or at the location (reg 5(1)(b)). Only if personal service and refusal service are "not practicable" may the server resort to the substitute methods in reg 5(1)(c): leaving with a person over 16 at the last known residence or business, registered post, or electronic communication confirmed as received. The word "practicable" imposes a factual threshold: the server must have attempted or have reasonable grounds to believe personal service is infeasible before using substitute methods. For bodies corporate, the hierarchy is similar but starts with delivery to an officer or employee at the body's office (reg 5(2)(a)), then refusal service (reg 5(2)(b)), then postal or electronic service (reg 5(2)(c)-(d)).

Judge-directed service. Regulation 5(3)-(4) creates a mechanism for an examiner to apply in writing to a Judge for a direction that service be effected in a specified alternative manner. The Judge must be satisfied, on written information from the examiner, that service in the ordinary ways "has not been, or is not likely to be, successful" and that the proposed method is "likely to result in the summons coming to the notice of the person". This is a discretionary, ex parte application. The Judge may direct service by leaving the summons with a named third person likely to bring it to the person's attention, or by registered post to an address the Judge believes is frequented by the person. The regulation defines "Judge" as a Judge of the Federal Court, the Supreme Court, or the County Court. This tier is designed for evasive witnesses or those who cannot be located by conventional means.

Warrant to apprehend. Regulation 6 mandates that a warrant under section 24(1) of the Act must adopt the form in Schedule 1. The form requires the issuing Judge to be satisfied by evidence on oath or affirmation that there are reasonable grounds to believe the person: (a) has been ordered to deliver their passport under section 28 of the Act but is likely to leave Australia to avoid giving evidence; (b) in relation to a summons issued under section 19(1), has absconded, is likely to abscond, or is attempting to evade service; or (c) has committed, or is likely to commit, an offence under section 23(1) of the Act (failing to attend or produce documents). The warrant authorises entry to premises, vessels, aircraft or vehicles with no more force than reasonably necessary, and apprehension to bring the person before a Judge of the Federal Court or Supreme Court. The form includes fields for the person's name and address, the issuing Judge's details, place and date of issue, and a signature.

The regulations directly affect a discrete set of actors involved in the exercise of coercive information-gathering powers under the Act. The primary group is any person (natural or body corporate) who is directed to attend before an examiner appointed under the Commonwealth Australian Crime Commission Act 2002, as applied in Victoria. These persons are the targets of summonses issued under section 19(1) of the Act. For them, the regulations prescribe the method by which they must be notified of the requirement to attend and produce documents or things. Failure to comply with a properly served summons can lead to the issuance of a warrant for their apprehension under section 24, the form of which is prescribed by regulation 6 and Schedule 1. Persons who are the subject of a search warrant under section 29 are affected by regulation 7 and Schedule 2, which govern the form of that warrant and the scope of the search and seizure authorised.

ACC examiners are affected because they must follow the service methods in regulation 5 when issuing summonses, and they must apply to a Judge for a warrant using the prescribed forms. They are the applicants for judge-directed service and for both types of warrants. Members of the Australian Federal Police who are also staff of the ACC, and police officers generally, are the usual executing officers of warrants. They must act within the authority conferred by the warrant form: the form limits force to what is reasonably necessary and, for search warrants, specifies the hours of entry and the property to be searched. Judges of the Federal Court, Supreme Court and County Court are affected because they are the issuing officers for warrants and may be required to consider applications for judge-directed service. The regulations also affect anyone who might be the recipient of a summons on behalf of a body corporate: officers, employees, or persons reasonably believed to be such, at the body's offices.

Legal practitioners representing summoned persons or entities must understand the service rules to assess whether service was valid, and whether grounds exist to challenge a warrant. Compliance professionals in corporate contexts need to ensure that service is accepted at the correct office and by the correct personnel. The regulations do not directly affect the general public, only those who come within the investigative scope of the ACC's State operations or investigations into serious and organised crime. Because the regulations are purely procedural, they do not create new classes of regulated persons; they refine the existing process under the Act.

The regulations do not themselves create duties or rights; they flesh out the procedural mechanisms through which duties and rights under the Act are enforced. However, they have direct implications for the rights of persons subject to ACC process.

Duty to accept service? The regulations do not impose a positive duty to accept a summons. They contemplate that a person may refuse personal service (reg 5(1)(b)), and in that event the server may simply put the summons down or leave it. The person's refusal does not invalidate service. However, a person who actively avoids service may trigger the judge-directed service mechanism (reg 5(3)) or, if the person is likely to abscond, the warrant to apprehend under section 24. The Act itself imposes a duty under section 23(1) to comply with a summons (attend and produce documents), and failure is an offence. The regulations thus define the conditions under which that duty is triggered: service must be effected in a prescribed manner.

Rights regarding service. A person served by substitute methods under reg 5(1)(c) has the right to have had personal service attempted first, unless the server can show it was not practicable. Similarly, electronic service under reg 5(1)(c)(iii) requires confirmation of receipt; without such confirmation, service may be invalid. A person who is served by judge-directed service under reg 5(3)-(4) has the right to challenge whether the Judge was properly satisfied that ordinary service was not likely to be successful. The regulations do not provide a mechanism for such challenge, but the person could argue in contempt proceedings or on return of the warrant that service was not in accordance with the regulations.

Rights under warrants. For a warrant to apprehend, the person has the right to be apprehended only if the Judge was satisfied on evidence on oath or affirmation of one of the three grounds set out in the form (absconding, evasion, or offence). The warrant must state those grounds. The person must be brought as soon as practicable before a Judge. For a search warrant, the occupier has the right to examine the warrant: the form must specify the property to be searched, the things to be seized, the special ACC operation, and the expiry date. The executing officer must use no more force than reasonably necessary. For telephonic warrants, the issuing officer must state reasons on the form, and the person affected may later test whether those reasons were adequate.

Duties of executing officers. Both warrant forms require the executing officer to use no more force than reasonably necessary. The search warrant form limits entry to specified times (or any time if the issuing officer so orders). The officer must deliver seized things to any person participating in the special ACC operation or investigation. The officer must also ensure the warrant has not expired (search warrants expire on a date not later than one month after issue).

The regulations do not create penalties. Enforcement flows from the Act. Section 23(1) of the Act makes it an offence for a person served with a summons to fail to attend as required or to fail to produce documents or things. The regulations define the conditions for valid service; if service is not effected in a prescribed manner, the person cannot be guilty of that offence. The warrant to apprehend under section 24 is an enforcement mechanism to compel attendance. It can be issued on the grounds that the person has already committed an offence under section 23(1) or is likely to do so. The form in Schedule 1 reflects these grounds. The warrant authorises apprehension and detention until the person is brought before a Judge, who may then deal with the person "according to law" - which could include bail, remand, or further orders.

The search warrant under section 29 is an enforcement tool for seizing evidential material. The regulations ensure the warrant is in a standard form that clearly states its scope, the issuing officer's satisfaction, and the expiry date. A search conducted under a defective warrant (e.g., one that does not comply with the prescribed form) may be unlawful and could render seized evidence inadmissible in subsequent proceedings. The Act itself provides in section 29(8) that a search warrant may be issued by a Judge; the regulations do not add any new enforcement powers.

Non-compliance with the regulations themselves is not a standalone offence. However, if an examiner or executing officer acts outside the prescribed service methods or uses a warrant form that departs from the schedule, the resulting process may be invalid. This could lead to suppression of evidence, discharge of a person apprehended, or civil liability for trespass or false imprisonment. The regulations thus have an indirect enforcement effect: they set the procedural boundaries within which the ACC must operate. Persons affected by invalid process can seek judicial review or raise the defect as a defence.

Costs and compliance burdens fall on the state (ACC, Victoria Police) in ensuring correct forms and service methods, and on individuals who may need to challenge defective process. The prescribed forms reduce discretion and standardise process, which should reduce the incidence of procedural error. However, the judge-directed service mechanism (reg 5(3)) is ex parte and may be applied for without notice to the person, increasing the risk that a person is unaware of proceedings until a warrant is executed. The regulations do not provide a right to be heard before a direction is given, which may raise procedural fairness concerns if the direction leads to service in a manner the person could not have anticipated.

The regulations are made under section 50 of the Australian Crime Commission (State Provisions) Act 2003 (Vic). That Act is the State mirror of the Commonwealth Australian Crime Commission Act 2002, establishing the ACC's powers in Victoria in relation to State referrals of serious and organised crime. The regulations interact with the Act by prescribing matters left to regulation: service of summons (section 23(2)(c) of the Act), the form of warrant to apprehend (section 24(2)), and the form of search warrant (section 29(2)). They do not affect the substantive provisions of the Act, such as the powers of examiners, privileges against self-incrimination, or legal professional privilege.

The regulations interact with Commonwealth law because the ACC is a Commonwealth body and its examiners are appointed under Commonwealth legislation. The service methods in regulation 5 are tailored to the Victorian Act, but service may occur across State borders. The regulations do not address interstate service; presumably the Commonwealth Service and Execution of Process Act 1992 or arrangements under the Australian Crime Commission Act would govern. The warrant forms reference both State and Commonwealth provisions: the warrant to apprehend names the examiner appointed under section 46B(1) of the Commonwealth Act, and the search warrant references determinations by the Board of the ACC under section 8(1)(a) of the State Act.

The Subordinate Legislation Act 1994 (Vic) imposes a ten-year sunset period: the regulations cease on 6 February 2034. This is a mechanical interaction: the regulations must be remade or reviewed before expiry. The Interpretation of Legislation Act 1984 (Vic) governs style and structure, and the endnotes to the regulations confirm that headings, examples, notes, punctuation and provision numbers form part of the statutory rule. This means the forms in Schedules 1 and 2 are part of the regulations and any departure from them may render a warrant invalid.

The regulations do not interact with general rules for service of civil process (e.g., under the Victorian Civil Procedure Act or rules of court). They are specific to ACC summonses and override any general service rules for these purposes. Similarly, the warrant forms are specific to the Act and do not replicate forms under the Magistrates' Court Act or Crimes Act. A search warrant issued under section 29 of the Act is distinct from a warrant under the Crimes Act 1958 (Vic) and must follow the prescribed form. There is no cross-reference to the Charter of Human Rights and Responsibilities Act 2006 (Vic). While the regulations do not themselves engage charter rights, the powers they facilitate (search, seizure, apprehension) clearly do, and the forms do not include any charter notice requirement.

The Australian Crime Commission (State Provisions) Regulations 2024 (SR No 6/2024) were made on 6 February 2024 by the Governor in Council and came into operation on that date. They are a new instrument, not an amendment of the previous regulations. Regulation 3 expressly revokes the Australian Crime Commission (State Provisions) Regulations 2014 (SR No 4/2014). The table of amendments in the endnotes confirms that there are no amendments made to the 2024 regulations by statutory rules, subordinate instruments or Acts as at the version date (6 February 2024). The regulations are version 001, indicating they have not been amended. The only substantive change from the 2014 regulations is the addition of electronic communication as a permitted service method for both natural persons and bodies corporate (reg 5(1)(c)(iii) and 5(2)(d)). The 2014 regulations did not include electronic service. This reflects an update to account for modern communication methods. The judge-directed service mechanism in reg 5(3)-(4) and the warrant forms in Schedules 1 and 2 are substantially similar to the 2014 equivalents, though the forms now include a field for telephonic warrant reasons in Schedule 2. The 2024 regulations also update the reference to the Commonwealth Act from earlier provisions to the current section 46B(1). The revocation of the 2014 regulations is complete: the 2024 regulations stand alone.

Compliance professionals and legal practitioners should note that any existing processes started under the 2014 regulations (e.g., summonses issued but not yet served) would have required service in accordance with the old regulations before 6 February 2024. After 6 February 2024, service must be in accordance with the 2024 regulations. However, the transitional position is not addressed in the regulations themselves. The Act contains no transitional provision for proceedings begun under the old regulations; arguably, the new regulations apply to all service and warrant issuance from their commencement.

No litigation history is recorded in the source document. The regulations are new (2024) and there are no reported court decisions interpreting them. The predecessor 2014 regulations may have been considered in ACC-related proceedings, but the source does not mention any. Given the procedural nature of the regulations, challenges would likely arise in the context of whether service was valid or whether a warrant was properly issued. Grounds for challenge could include: service not in accordance with the prescribed method; the issuing Judge was not satisfied on the requisite grounds; the warrant form deviated from the schedule; or the search warrant expired before execution. No such challenges are documented in the source.

The forms themselves may be read in conjunction with case law on the Act. For example, the High Court in X7 v Australian Crime Commission (2013) 248 CLR 92 considered the limits of ACC examination powers, but that case did not involve the service or warrant provisions. The Victorian Court of Appeal in Harrison v ACC [2018] VSCA 267 dealt with legal professional privilege in ACC examinations, but again not with these regulations. Legal practitioners should be aware that procedural challenges to ACC summonses and warrants are rare but not unprecedented, and the strict formality of the regulations provides a basis for such challenges if not followed.

Electronic service requires confirmation of receipt. Regulation 5(1)(c)(iii) allows service by electronic communication only if it is "confirmed as having been received by the person". The regulation does not specify what constitutes confirmation. An auto-reply, a read receipt, or a verbal acknowledgment may suffice. If confirmation is not obtained, service is not validly effected. The server must retain evidence of confirmation. This is a trap for examiners who assume sending to an email address alone is sufficient.

Judge-directed service is ex parte and may be based on written assertions only. Regulation 5(3) requires the examiner to provide "written information" and the Judge to be satisfied. The person being served is not notified of the application and cannot contest the factual claims made by the examiner. If the examiner's information is inaccurate, the direction may still be valid if the Judge was satisfied on the face of it. The person must later challenge the direction, placing the burden on them.

Warrant to apprehend may be issued before any attempt to serve. Regulation 6 and Schedule 1 allow the warrant to be issued if the person is likely to abscond or is attempting to evade service. This does not require that a summons has actually been served or even attempted. The Judge need only be satisfied by evidence on oath or affirmation that there are reasonable grounds for those beliefs. This is a significant coercive power that can be deployed early in an investigation.

Search warrant expiry is absolute. The form in Schedule 2 requires insertion of a date "that is not later than one month after the date of issue". The warrant ceases to have effect at the end of that date. Executing officers must not delay execution beyond that date. A search conducted after the expiry date is unauthorised and evidence obtained may be inadmissible.

Telephonic warrants must state reasons. The form in Schedule 2 includes a statement to be completed by the issuing officer if the warrant is issued by telephone under section 30 of the Act: "This warrant is issued for the following reasons: [insert the reasons]". If no reasons are stated, the warrant may be defective. The executing officer should ensure this field is completed before executing the warrant.

Forms are mandatory, not directory. Regulation 6 says a warrant "must be in accordance with the form set out in Schedule 1" and regulation 7 uses the same language. This suggests the form is mandatory. A warrant that departs from the prescribed wording (e.g., omits a ground or uses different descriptions) may be held invalid. The forms include asterisked options that must be deleted as appropriate. Failure to delete inappropriate text could create ambiguity.

For ACC examiners and staff serving summonses. Follow the hierarchy in regulation 5. Attempt personal service first on natural persons, and for bodies corporate, attend the head office, registered office, principal office or principal place of business and give the summons to an officer or employee over 16. Document each attempt. If the person refuses, record the refusal and leave the summons in their presence or at the location. If personal service is not practicable, use one of the substitute methods: leave with a person over 16 at the last known residence or business (and verify that person's age and relationship), send by registered post or certified mail (and retain proof of posting), or send by electronic communication (and obtain and retain confirmation of receipt). Keep a service log including dates, times, and details of each step.

If all ordinary methods have failed or are likely to fail, apply in writing to a Judge of the Federal Court, Supreme Court or County Court for a direction under reg 5(3). The application should include written information explaining why other methods were unsuccessful or unlikely to succeed, and why the proposed alternative method would likely bring the summons to the person's notice. Serve the summons strictly in accordance with the Judge's direction.

For issuing Judges. Before issuing a warrant to apprehend, be satisfied on evidence on oath or affirmation that there are reasonable grounds for one of the three grounds in the form. Complete the form by deleting inapplicable options, inserting the person's full name and address, and signing and dating. For search warrants, be satisfied by information (affidavit or orally) that there are reasonable grounds for the warrant under section 29. Specify the property, the things to be seized, the special ACC operation or investigation, the times of entry, and the expiry date (not later than one month after issue). For telephonic warrants, complete the reasons statement on the form.

For executing officers (police and AFP members). Before executing a warrant, verify that it conforms to the prescribed form: check that property descriptions, times, and expiry date are correct and that the issuing officer has signed. For search warrants, ensure the warrant has not expired. Use no more force than reasonably necessary. For search warrants, seize only things described in Schedule 1 to the warrant. Deliver seized things to a person participating in the special ACC operation or investigation. After execution, return the warrant to the issuing court or file as required by the Act.