What is the Australian Criminal Intelligence Commission?

The Australian Criminal Intelligence Commission (ACIC) was created on 1 July 2016 under the Australian Crime Commission Act 2002 (Cth)(‘the ACC Act’).

It consolidated three former federal intelligence agencies: the Australian Crime Commission (ACC), the Australian Institute of Criminology (AIC) and the CrimTrac Agency (CrimTrac), with a view to enhancing efficiency and effectiveness federal investigations into serious criminal activity that has the potential to affect the nation.

According to its website, ACIC “work[s] with… law enforcement partners to improve the national ability to respond to crime impacting Australia”.

The organisation’s stated vision is for a “safer Australia that is better connected, informed and capable of responding to crime”.

What is the ACIC responsible for?

The ACIC’s mandate is broad, covering areas which include:

• International organised crime such as cross-border drug activity, cybercrime and white collar and corporate crime, including serious financial crimes, 
• National security including terrorism and emerging threats,
• Maintaining various systems such as the national police reference system, national criminal intelligence system, national child offender system, and biometric and forensic systems including the national automated fingerprint identification system, national criminal investigation DNA database and national missing persons and victim system, 
• Managing various services such as the national police checking service and national domestic violence order scheme, and
• Advisory services through both public and classified intelligence reports focus areas such as serious financial crime, organised crime, illegal firearms activity, illicit drug activity and threats to national security including the Australian financial system.

Investigatory methods

The ACIC draws upon its national and international network of law enforcement resources – including those shared through the ‘Five Eyes Alliance’ – to collect intelligence, conduct investigations and provide security assessments and advice with a view to guarding against what are perceived to be threats to the nation.

It does this by, among other things:

• Maintaining databases which monitor potential security threats,
• Collecting, correlating, analysing and distributing intelligence information,
• Formulating strategies intended to reduce security threats, and 
• Executing those strategies whether by way of policy advice, the conducting of examinations of persons of interest called before it or by otherwise managing enforcement operations.

The organisation is separated into two broad groups, which are:

• The corporate group: which is responsible for delivering services such as national policing information, background checks, biometric services and firearm services, as well as governance, communications and strategic information, and
• The intelligence group: which is responsible for collection and use of information with a view to disrupting national threats.

ACIC’s powers

The ACIC’s investigatory mandate is akin to a Royal Commission and includes the power to:

• Require information and materials from government agencies (sections 19A and 20 of the ACC Act),
• Obtain and execute search warrants (sections 22 and 23),
• Conduct examinations (similar to hearings) before or after a person is charged with a criminal offence, and before or after a person’s assets have been confiscated (section 24A),
• Summon witnesses to attend before these examinations and produce materials and/or give evidence (testify) (section 28), 

ACIC examinations

Examinations are broadly similar in nature to hearings held in regular courts, although the examiner in an ASIC proceeding is empowered to conduct the hearing ‘as he or she thinks fit’; which means it does not need to have the formalities of a regular court hearing.

Also unlike regular court hearings, which are generally open to members of the public, is the fact that ACIC examinations occur in private.

Although these hearings are described as ‘compulsory’, it is important to be aware that the ACIC cannot just order them against anyone for any reason; there are processes and procedures that must be followed and tests that must be overcome before a witness can be called before the Commission.

In the event those rules have not been followed and/or the tests have not been satisfied, a person – or more commonly, a lawyer on the person’s behalf – can challenge the requirement to attend.

It is also important to know that section 25A(2) of the ACC Act makes clear a person called for an examination is entitled to be represented by a lawyer before the Commission.

Requirement to answer questions

An important difference between regular court hearings and examinations is that – provided the ACIC follows the required rules and properly applies legal tests contained in the ACC Act, witnesses brought before an ACIC examination do not have the right to silence and are not protected by the privilege against self-incrimination; in other words, witnesses can be compelled to answer questions even if this means revealing information that is against their interests, including if it discloses the person has engaged in criminal activity.

Protection against information being used in other proceedings

However, it is important to be aware that information disclosed or produced by a witness before an examination cannot be used in other proceedings – such as to form the basis of a criminal charge – provided certain rules are followed.

This rule is known as ‘use immunity’ and is contained in sections 30(4) and 30(5) of the ACC Act.

The rule provides that where a witness appears before an examiner and is required to answer a questions or provide materials, those answers or materials are not admissible as evidence against the witness in a criminal proceedings, a proceeding for the imposition of a penalty or a confiscation proceedings provided that before the answer or materials were provided, the witness claimed the answer or the production of the materials might tend to incriminate him or her, or make them liable for a penalty.

However, subsection 30(5A) makes clear the answer or materials may be admissible in proceedings in relation to the falsity of the answer or any statement in the materials; in other words, for perjury-related purposes.

An important reason to have a lawyer attend an examination is to ensure the witness’s interests are protected by identifying answers or materials with the potential to incriminate and voicing an objection before those answers or materials are provided. 

What happens if I fail to attend an ACIC examination?

Failing to attend an ICAC examination as required by a duly served summons is an offence under section 30(1) of the ACC Act which carries a maximum penalty of 5 years in prison and/or 200 Commonwealth penalty units.

The same maximum penalty applies to failing to attend the examination day to day unless excused or released from further attendance by the examiner. 

To establish the offence of failing to attend, prosecutors are required to prove that the summons was served in accordance with the law.

What happens if I refuse to answer questions at an ACIC examination?

Refusing or failing to answer questions or produce materials after being duly summoned and appearing before an ICAC examination pursuant to that summons is an offence under section 30(2) of the ACC Act.

This offence also carries a maximum penalty of 5 years in prison and/or 200 Commonwealth penalty units.

Contacted by the ACIC?

The coercive powers of the ACIC to call witnesses for examination and, while witnesses are in attendance, require them to answer questions and/or produce materials which may incriminate them make it particularly important to engage a lawyer who is experienced in ACIC matters and has a comprehensive knowledge of the laws, practices and procedures that apply.

A defence lawyer with the relevant knowledge and experience with be able to object to compulsory attendance when the ASIC is unable to sufficiently justify issuing a summons and/or has not complied with required practices and procedures, and will ensure witnesses who attend are protected against their answers and/or documents and other materials being used against them in future proceedings.

The defence team at Sydney Criminal Lawyers is vastly experienced in representing clients throughout the investigation stages of the ACIC, including in the lead-up to proposed compulsory attendances at examinations and during those hearings when they proceed.

Our lawyers will ensure your interests are protected against adverse consequences, so you can move forward with what’s important in life.

So if you have been contacted by the ACIC, call us today on (02) 9261 8881 to arrange a conference where you’ll be explained the process, your options and the best way forward.