Author: Nyman Gibson Miralis
Subject: Australian Criminal Intelligence Commission (ACIC)
Keywords: ACIC, serious and organised crime, summons, examiners, witness, ACC Act, direct-use immunity
What is the Australian Criminal Intelligence Commission (ACIC)?
The Australian Criminal Intelligence Commission (ACIC) is a specialist, national criminal intelligence agency that focuses on reducing the impact of serious and organised crime on Australia and the Australian economy.
It is empowered by statute to conduct special investigations and operations where conventional law enforcement methods are unable employed.
What are the Australian Criminal Intelligence Commission (ACIC)’s functions?
The ACIC seeks to discover, understand and respond to serious and organised crime by:
- Collecting, correlating, analysing and sharing criminal information and intelligence;
- Maintaining a national database of criminal information and intelligence;
- Undertaking intelligence operations;
- Investigating matters relating to federal relevant criminal activity
- Providing strategic criminal assessments;
- Providing advice on national criminal intelligence priorities.
What are some of the Australian Criminal Intelligence Commission (ACIC)’s powers?
The ACIC has a number of coercive powers that are used in its special investigations and operations:
- The ACIC can summon witnesses to appear before an Examiner;
- The ACIC can then compel those witnesses to give evidence on themselves and others under investigation;
- The ACIC can obtain documents or other items held by those witnesses.
These coercive powers can only be used when the ACIC Board approves their use in a special investigation or operations.
The ACIC board is made up by a number of Commissioners, Chief Executive Officers, Directors and Secretaries of the ACIC’s partner agencies (which include the Australian Federal Police, State and Territory Police, the Australian Taxation Office, the Australian Securities and Investments Commission and the Australian Security Intelligence Organisation).
Who are the Examiners and what are examinations?
ACIC examiners are lawyers with at least five years experience who are appointed for periods of up to five years. They are empowered to exercise the coercive powers of the ACIC in the context of special operations and investigations.
A witness is called to attend an examination pursuant to section 28 of the Australian Crime Commission (ACC) Act 2002 (Cth) (ACC Act). Examinations are held in private and the examiner may give directions about persons who may be present during the examination.
If a witness does not attend an examination, does not co-operate or produce documents or other things at the examination, they will be guilty of an offence under section 30 of the ACC Act, punishable by a fine or a term of imprisonment of five years.
Pursuant to section 24A of the ACC Act, an examination can be held before or after a charge is laid by a law enforcement body, or before or after a confiscation application.
Do I have to answer questions at an examination at the Australian Criminal Intelligence Commission (ACIC)?
A witness called to attend an examination at the Australian Criminal Intelligence Commission (ACIC) must answer all questions, even if their answers tend to incriminate them. This is because the ACC Act overrides the common law privilege against self-incrimination (the common law is the law developed by the decisions of judges, courts and tribunals).
In ordinary circumstances, such as when one is arrested by police, the privilege against self-incrimination entitles a person to refuse to answer any question, or produce any document, if the answer or the production of that document would tend to incriminate them.
This is not the case at the ACIC, where refusing to answer a question will cause the witness to be in contempt.
If an examiner is of the opinion that a witness is in contempt of the ACIC, the examiner may apply to either the Federal Court or the Supreme Court of NSW for the witness to be dealt with in relation to the contempt.
The ACC Act does offer a limited protection for witnesses who incriminate themselves during an examination.
If, before answering the question or producing the document or thing, the witness claims that the answer, or the production of the document or thing, might tend to incriminate them, then under subsection 30(5) of the ACC Act that answer, document or thing is not admissible in evidence against the witness in a criminal proceeding, a proceeding for the imposition of a penalty or a confiscation proceeding.
This protection is known as direct-use immunity.
Nyman Gibson Miralis are experts in challenging the Australian Criminal Intelligence Commission’s power of compulsory examination in the Federal Court of Australia, and the High Court of Australia. If you require assistance, contact one of our expert criminal defence lawyers