Author: Dennis Miralis, partner and criminal defence lawyer.

How extensive are the powers of the Australian Criminal Intelligence Commission (ACIC)?

The Australian Criminal Intelligence Commission (ACIC) has extraordinary powers of investigation, deployed in special operations and investigations to obtain information where traditional law enforcement methods are likely to be unsuccessful.

The justification for these powers is self-evident; to function effectively, the Commission is required to have a broad understanding of the changing criminal environment to determine how Australian law enforcement bodies should respond to the threat of serious and organised crime.

Coercive powers, such as the power to summon and examine witnesses, assist in facilitating such an understanding.

Although the Commission’s powers are extraordinary, they are entrenched in a legal system that allows for the judicial review of executive action.

In other words, the Commission cannot exercise its powers in an arbitrary manner; they have to be exercised according to law.

An examiner’s decision to issue a summons pursuant to section 28(1) of the Australian Crime Commission (ACC) Act 2002 (Cth) or a notice to produce issued pursuant to section 21A of the Australian Crime Commission (ACC) Act 2002 (Cth), for example, can be reviewed by a justice of a court to ensure it has been issued according to law.

What powers exercised by the Australian Criminal Intelligence Commission (ACIC) can be challenged or reviewed by a Court?

The Australian Crime Commission (ACC) Act 2002 (Cth) is the legislative instrument that provides the Commission with its extraordinary powers.

The powers that can be challenged include:

  1. An examiner’s decision, pursuant to section 28(1) of the Australian Crime Commission (ACC) Act 2002 (Cth), to issue a summons for a person to give evidence or produce documents or things referred to in the summons;
  2. An examiner’s decision, pursuant to section 21A of the Australian Crime Commission (ACC) Act 2002 (Cth), to issue a written notice on a person requiring that person to attend, at a specified time and place, before an examiner or member of the staff of the Australian Criminal Intelligence Commission (ACIC) and to produce to that person at that time and place a specified document or thing relevant to a special Australian Criminal Intelligence Commission (ACIC) operation;
  3. An examiner’s direction, pursuant to section 28(9) of the Australian Crime Commission (ACC) Act 2002 (Cth), regarding the disclosure of examination material;
  4. An eligible person’s application, pursuant to section 22(1) or 23(1) of the Australian Crime Commission (ACC) Act 2002 (Cth), to apply to an issuing officer for the issue of a search warrant;
  5. A Judge’s decision, pursuant to section 31(1) of the Australian Criminal Intelligence Commission (ACIC) Act (Cth), to issue a warrant for the apprehension of a person who is likely to leave Australia for the purpose of avoiding giving evidence before an examiner;
  6. An examiner application, pursuant to section 34B of the Australian Crime Commission (ACC) Act 2002 (Cth), to apply to the Federal or Supreme Court of New South Wales to deal with a person in relation to contempt of the Australian Criminal Intelligence Commission (ACIC); and
  7. An examiner’s direction, pursuant to section 34D(1) of the Australian Criminal Intelligence Commission (ACIC) Act (2002), to detain a person for the purpose of bringing that person before a court for an application pursuant to section 34B of the Australian Crime Commission (ACC) Act 2002 (Cth).

What can Nyman Gibson Miralis do for you if you want to challenge the ACIC’s powers?

A specialist Criminal Defence Lawyer from Nyman Gibson Miralis is also able to ascertain whether a question or direction made by an examiner during an examination is supported by a power in the Australian Crime Commission (ACC) Act 2002 (Cth), and object to that question or direction on the basis jurisdictional error (in other words, objecting on the basis that the examiner’s direction or question is outside the limits of the functions and powers conferred on the examiner by the Australian Crime Commission (ACC) Act 2002 (Cth)).

Nyman Gibson Miralis has been at the forefront of challenging the powers of powerful bodies such as the Australian Criminal Intelligence Commission (ACIC).

We have expertise in advising whether a summons has been issued in compliance with the law and whether there may be grounds for relief including seeking an injunction to stay the examination or a declaration that the summons was invalidly issued.