21 / 11 / 2022

Examinations by the Australian Criminal Intelligence Commission (ACIC)

The Australian Criminal Intelligence Commission (ACIC) (formerly known as the Australian Crime Commission) is an investigative body which was established by the Australian Crime Commission Act 2002 (Cth). The ACIC has a broad range of powers to authorise and use coercive powers for intelligence operations or investigations into a wide range of serious criminal activity, or suspected criminal activity in the community. These coercive powers are exercised by independent statutory officers, which are known as ‘Examiners’, and will only be exercised in for the purposes of authorised a special ACIC operation, or a special ACIC Investigation.

These investigations and operations are typically focused upon investigation of serious organised criminal activities, including high-level financial crimes, exploitation of Australia’s migration system, cyber-related offending, firearm trafficking, high risk and emerging drugs, and outlaw motorcycle gangs. It is clear that the legislature intended the ACIC’s powers to be extensive and far-reaching.

Examination Notices and Summons to Appear before the ACIC

When a special ACIC investigation is taking place, an Examiner may decide to issue a summons to appear, using an Examination Notice under s 28 of the ACC Act. A person who has received an Examination Notice will be required to attend a location at a certain place and time, and to produce documents for the purposes of that investigation. One category of documents which may be required to be produced are comprehensive banking and financial records. The witness can be compelled by the ACIC to provide evidence under an oath or an affirmation to tell the truth, and may not refuse to do so, or refuse to answer a question that they are required to answer by an Examiner.

Refusal or failure to take an oath or affirmation, answer a question, or produce a document or thing may also lead to that person being found to be in contempt of the ACIC. Other circumstances which may lead to a finding of contempt include giving evidence that the person knows is false or misleading, obstructing or hindering an Examiner in the performance of their functions, and disrupting an examination or threatening a person present at an examination.  If an Examiner forms the opinion that a witness is in contempt of the ACIC, they may apply to either the Federal Court or Supreme Court of a State or Territory for the person to be dealt with in relation to the contempt, as if they were in contempt of that court. If an application is proposed to be made, a person may be detained for the purpose of bringing them before the court for the contempt proceedings.

A claim that an answer, document, or thing might tend to incriminate the person being examined can, in certain circumstances, prevent this information or document being admissible in evidence against the person. However, it is still lawful under the ACC Act and in certain circumstances for examination material to be disclosed to a prosecutor of an examinee, and to be used to obtain other material. This material may be used for purposes including making a decision whether to prosecute an examinee, and subject to certain conditions, used to prosecute an examinee.

The notice should also set out that the general nature of the topics about which the ACIC intends to question the person who is required for examination, and the specific documents or things which they are required to provide. An exception to this general rule is where providing this information is likely to prejudice the effectiveness of the investigation, or in circumstances where it is not reasonably practicable to do so. However, the nature of the questioning is not limited to those matters which are set out in the summons to appear, and can be in relation to any matter that relates to a special operation or investigation.

The summons to appear will often contain a notation that disclosing information about the existence of the summons or about anything connected with it is prohibited except in certain circumstances. Included in the circumstances where disclosure of this information is permitted, is speaking to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons or matter.

Disclosing the existence of the summons or information connected with it is an offence which carries a maximum penalty of 2 years’ imprisonment, a fine, or both. Failure to comply with a notice to produce a document or thing is an offence which carries a maximum penalty of 5 years’ imprisonment, a fine, or both.

How are Examination Hearings Conducted?

An Examination Hearing is typically conducted in a similar manner to the way that evidence is provided in a court. An Examiner will preside over the hearing, similarly to the way that a magistrate or a judge will preside over a hearing. Counsel assisting the examiner may then, as far as the Examiner deems appropriate, examine (or cross-examine) the witness regarding any matter which is considered to be relevant to the proceedings by the Examiner. A legal representative of the witness may also examine or cross-examine the witness on relevant matters.

Your Right to Legal Representation at an Examination Hearing 

A person giving evidence before the ACIC does have a right to representation by a legal practitioner, however this right is not unqualified. The ACIC may refuse permission for a particular practitioner to attend where it concludes on reasonable grounds and in good faith that to allow the representation either will, or may, prejudice the investigation.

If you have received an Examination Notice or summons from the ACIC we advise that you immediately seek legal advice regarding this matter. This is particularly important where the Examination Notice is accompanied by a notation that you are not to disclose any information about its existence except for the purposes of obtaining legal advice. The ACC Act is highly complex, and the consequences for failure to comply with the often-onerous requirements of this legislation can carry serious criminal penalties.

Max Haesler, Lawyer

1 Australian Crime Commission Act 2002 (Cth) (ACC Act) s 28.

2 ACC Act s 30(2). 

3 ACC Act s 34A. 

4 ACC Act ss 34C-34D. 

5 ACC Act s 30(5). 

6 ACC Act ss 25B-25H. 

7 ACC Act s 25G.

8 ACC Act s 21A.

9 ACC Act s 28(3).

10 ACC Act s 29A.

11 ACC Act 29B(2).

12 ACC Act 29B(3). 

13 ACC Act s 21A(5).

14 ACC Act s 25A(6).

15 ACC Act s 25A(2)(a).

16 National Crime Authority v A, B and D (1988) 18 FCR 439; 33 A Crim R 270 at 448.