Challenging the powers of the ACIC

The Australian Criminal Intelligence Commission (ACIC)’s powers can be reviewed by a court through a process called judicial review.

Judicial review looks at whether the exercise of power was made according to law, as opposed to affirming, varying or setting aside the decision (a process which is called merits review). This means that a court reviewing the ACIC’s powers cannot remake a decision made by an examiner or staff member of the Commission.

Judicial review of executive action has its origins in the common law (the law developed by the decisions of judges, courts and tribunals).

It is codified in the Administrative Decisions (Judicial Review) Act 1997 (Cth) (hereafter “ADJR Act”), the statute commonly used by experienced Criminal Defence Lawyers to challenge the exercise of the Australian Criminal Intelligence Commission (ACIC)’s powers.

What legislation deals with the judicial review of the ACIC’s powers?

Pursuant to section 5 of the ADJR Act, a person “aggrieved by a decision” to which the Act applies can apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on one or more of a number of grounds.

The reviewable grounds include:

1. That a breach of the rules of natural justice occurred in connection with the making of the decision;
2. That procedures that were required by law to be observed in connection with the making of the decision were not observed;
3. That the person who purported to make the decision did not have jurisdiction to make the decision;
4. That the decision was not authorized by the enactment in pursuance of which it was purported to be made;
5. That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
6. That the decision involved an error of law, whether or not the error appears on the record of the decision;
7. That the decision was induced or affected by fraud;
8. That there was no evidence or other material to justify the making of the decision; and
9. That the decision was otherwise contrary to law.

What are the potential remedies available under the ADJR Act?

The ADJR Act offers a person “aggrieved by a decision” a number of avenues for redress following a finding by the court that a decision was made in error. Pursuant to section 16 of the ADJR Act, the court can:

1. Quash or set aside the decision, or part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;
2. Refer the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;
3. Declare the rights of the parties in respect of any matter to which the decision relates; and
4. Direct any of the parties to do, or to refrain from doing, any act or thing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

In respect of decisions made by an examiner or a member of staff of the Australian Criminal Intelligence Commission (ACIC), the ADJR Act’s potential remedies can facilitate the following:

1. Quashing or setting aside 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 issue pursuant to section 21A of the Australian Crime Commission (ACC) Act 2002 (Cth), with the effect of rendering the summons or notice to produce as invalid;
2. Referring 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 issue pursuant to section 21A of the Australian Crime Commission (ACC) Act 2002 (Cth) back to the examiner, effectively rendering the summons or notice to produce invalid;
3. Declarations that an examiner’s decision is unlawful;
4. Directing that the examination be stayed;
5. Directing an examiner to refrain from asking certain questions or asking for the production of certain documents;
6. Directing the ACIC to destroy material gathered in the examination.

Case example

The following case example demonstrates the remedies available following a finding that an examiner or member of staff of the ACIC was not authorised by the Australian Crime Commission (ACC) Act 2002 (Cth) to issue a summons.

X is summoned to appear before the Australian Criminal Intelligence Commission (ACIC) pursuant to section 28(1) of the Australian Crime Commission (ACC) Act 2002 (Cth), and retains an experienced Criminal Defence Lawyer to represent them at their examination.

Through intensive investigation, X’s experienced Criminal Defence Lawyer uncovers that the summons was issued erroneously. X’s Criminal Defence Lawyer discovers that the decision of the examiner to summon X before the Australian Criminal Intelligence Commission (ACIC) was an improper exercise of the power conferred by section 28(1) of the Australian Crime Commission (ACC) Act 2002 (Cth), in that the decision involved failing to take relevant considerations into account and taking irrelevant considerations into account in the exercise of the power.

X applies to the Federal Court of Australia for judicial review of the examiner’s decision. The orders sought are as follows:

1. An order quashing or setting aside the examiner’s decision to issue the summons;
2. A declaration that the decision to issue the summons was unlawful;
3. An order directing that the examination is stayed;
4. An order directing the court to supress X’s name; and
5. An order directing the Commission to destroy examination material .