Purpose of the Bills

The purpose of the Australian Criminal Intelligence Commission Bill 2026 (ACIC Bill) is to establish a new Act governing the Australian Criminal Intelligence Commission (ACIC) and to implement the Government’s response to the Independent Review of the ACIC and Associated Commonwealth Law Enforcement Arrangements (ACIC Review). Significant changes include:

• repositioning the ACIC as an intelligence agency, not an investigative or law enforcement agency, and updating its functions to allow it to undertake greater intelligence gathering
• introducing a two-step authorisation process for the use of the ACIC’s coercive powers
• establishing a statutory framework for the conduct of controlled intelligence operations (CIOs) by the ACIC
• allowing the Attorney-General to issue search warrants authorising the ACIC to search certain premises, persons, things or conveyances for the purpose of intelligence gathering
• maintaining the ACIC’s ability to charge fees in relation to goods or services provided in the course of performing its National Policing Information (NPI) functions and allow rules to be made which would govern the way the ACIC may charge such fees.

The ACIC Bill will not repeal the Australian Crime Commission Act 2002 (ACC Act) which establishes the ACIC and provides for it functions and powers. The Government has stated that ‘the Bill will also be accompanied by a consequential and transitional amendment package, which will be required to support the ACIC’s transition to an intelligence agency’ (Explanatory Memorandum, p. 3).

The Australian Criminal Intelligence Commission (National Policing Information Charges) Bill 2026 (Charges Bill) will allow the ACIC to continue to impose charges for nationally coordinated criminal history check services. These provisions have not been included in the ACIC Bill as section 55 of the Australian Constitution requires that laws imposing taxation must only deal with the imposition of taxation.

Structure of the Bills

The ACIC Bill contains 10 Parts:

• Part 1 will provide for preliminary matters, including the commencement and general application provisions, the objects clause, and definitions (including the meaning of ‘serious and organised crime’).
• Part 2 will continue the existence of the ACIC as Australia’s national criminal intelligence agency and set out the ACIC’s functions and governance structures, including the role of the Director-General of the ACIC and their relationship with the responsible Minister.
• Part 3 will set out the ACIC’s coercive powers, including introducing additional safeguards on the use of these powers as recommended by the ACIC Review (Recommendation 5).
• Part 4 will establish a statutory framework for the conduct of CIOs by the ACIC, as recommended by the ACIC Review (Recommendation 9).
• Part 5 will allow the Attorney-General to issue search warrants authorising the ACIC to search certain premises, persons or conveyances for relevant documents and things, and to do other related matters (ACIC Review, Recommendation 10).
• Part 6 will enable the ACIC to continue to provide NPI systems and services and establish a statutory framework for the NPI system. Part 6 will also establish the NPI Committee which will be responsible for providing oversight, advice, and making recommendations to the Minister on expenditure from the NPI Special Account (ACIC Review, Recommendation13).
• Part 7 will enable the ACIC to continue to conduct criminal intelligence assessments for the purposes of a background check required or permitted under other legislation. The criminal intelligence assessment framework under Part 7 largely replicates Part III of the ACC Act, which was introduced by the Combatting Antisemitism, Hate and Extremism (Firearms and Customs Laws) Act 2026.
• Part 8 contains information disclosure provisions which will allow the ACIC to share intelligence with relevant agencies and bodies in certain circumstances (ACIC Review, Recommendation11). Part 8 will also establish secrecy offences applying to entrusted persons for the unauthorised disclosure of ACIC information or records, and enable the ACIC to use and share items seized or produced in accordance with the legislation (known as returnable items).
• Part 9 sets out the process for appointing the Director-General of the ACIC and Examiners (ACIC Review, Recommendation 6). Part 9 also provides the Director-General with powers in relation to staffing and the general administration and operation of the ACIC.
• Part 10 provides for the general oversight, record keeping and reporting requirements which will apply to the ACIC, including establishing a 5-year periodic review of the Act.

The Charges Bill contains 2 parts:

• Part 1 sets out commencement information, definitions and other general information.
• Part 2 allows for a national policing information charge to be imposed on an application to the ACIC for a nationally coordinated criminal history check service of a kind prescribed by the Minister by legislative instrument. Part 2 also clarifies that the amount of the charge is to be determined by the Minister by legislative instrument.

Background

History and functions of the ACIC

The ACIC (legally known as the Australian Crime Commission (ACC)) commenced as Australia’s national criminal intelligence agency in 2003, replacing the National Crime Authority (NCA), the Australian Bureau of Criminal Intelligence and the Office of Strategic Crime Assessments. On 1 July 2016 the Australian Crime Commission Amendment (National Policing Information) Act 2016 amended the ACC Act to merge CrimTrac and its functions into the ACC.[1]

As set out in its 2024–25 Annual Report, the ACIC has 2 main functions (p. 5):

• to collect, analyse and communicate intelligence relating to serious and organised crime impacting Australia, including where it has a transnational dimension
• to ensure that there are systems and services that enable criminal intelligence and policing information to be shared across jurisdictions, including the provision of nationally coordinated criminal history checks (NCCHCs).

The ACIC also conducts criminal intelligence assessments to determine if intelligence held by the agency suggests a person may commit a serious and organised crime or assist another person to commit a serious and organised crime. The Combatting Antisemitism, Hate and Extremism (Firearms and Customs Laws) Act recently introduced a revised criminal intelligence assessment framework under Part III of the ACC Act.

From 1 July 2022 to 12 May 2025, the ACIC was part of the Attorney-General’s portfolio and reported to the Attorney-General (p. 8, p. 5). The agency moved to the Home Affairs portfolio on 13 May 2025 and now reports to the Minister for Home Affairs (p. 5). The ACIC is one of 10 agencies that comprise Australia’s National Intelligence Community.

Independent Review of the ACIC and associated Commonwealth law enforcement arrangements

In 2023 the Government commissioned a ‘first principles’ Independent Review of the ACIC and associated Commonwealth law enforcement arrangements (ACIC Review). Stephen Merchant and Greg Wilson were appointed by the Government to undertake the Independent Review.

On 14 November 2024, the Attorney-General published the unclassified report along with the Government’s response to the ACIC Review’s 29 recommendations. The Government generally agreed (or agreed in principle) with the majority of the recommendations.

The ACIC Review ‘concluded that, at present, the ACIC is inhibited from fulfilling its intelligence mandate by a lack of clarity about its role, complicated legislative frameworks and uncertainty about its funding.’ (p. 7) The Review recommended that the ACC Act be repealed and replaced (Recommendation 2), with the objects clause and the ACIC’s functions reflecting that ‘the ACIC is an intelligence agency, not an investigative or law enforcement agency.’ (p. 19).

The Review recommended that the new legislation ‘should specify that the intelligence role encompasses undertaking … (NCCHCs) and the preparation and provision of individual criminal intelligence assessments.’ (p. 19)

The Review made recommendations relating to the ACIC’s roles and functions; powers; external governance; capabilities and workforce skills; and funding. Key recommendations of relevance to the ACIC Bill include:

• existing powers under telecommunications and surveillance devices legislative frameworks be shifted from an evidentiary collection and investigative threshold to a threshold that aligns with the ACIC’s role in intelligence collection (Recommendation 4)
• amending legislation to provide that ACIC intelligence collected under covert powers should only be used as evidence in limited circumstances and at the discretion of the ACIC (Recommendation 4)
• introducing a ‘double lock’ approval process requiring authorisations by the Attorney‑General for the use of coercive powers in relation to nominated criminal networks, with each individual summons or notices then also considered and issued by an independent Examiner (Recommendation 5)
• retaining the existing provisions relating to the qualifications, appointment, independence and tenure of Examiners (Recommendation 6)
• providing the Solicitor-General the opportunity to provide advice on the formulation of the draft legislative provisions and instruments underpinning the exercise of coercive powers (Recommendation7)
• requiring the ACIC to undertake an annual assessment of the coercive powers authorisation instruments to enable early identification and remediation of any vulnerabilities which might result in a successful legal challenge to the powers (Recommendation8)
• providing the ACIC with controlled operations-style powers with an intelligence collection purpose, similar to the Special Intelligence Operations framework in the Australian Security Intelligence Organisation Act 1979 (Recommendation 9)
• restricting the ACIC’s function to exclude undertaking activities which have the primary purpose of disrupting criminal activity via arrest and prosecution (Recommendation 9). However, ACIC staff should be able to apply for and execute relevant warrants for the purposes of the ACIC’s intelligence functions (Recommendation 10)
• introducing new information disclosure provisions which allow the ACIC to use its intelligence to inform its legislated functions and share it in a timely and equitable way with relevant government entities, other entities and private sector bodies (Recommendation11)
• disbanding the ACIC Board, and establishing the National Committee to Combat Serious and Organised Crime and a committee responsible for overseeing the development of National Policing Information Systems (Recommendations 12–14)
• parliamentary oversight of the ACIC be exercised by the Parliamentary Joint Committee on Intelligence and Security (PJCIS), with the Inspector-General of Intelligence and Security (IGIS) to also provide oversight (to replace the current role of the Commonwealth Ombudsman) (Recommendation 15)
• exempting the ACIC from the Freedom of Information Act 1982 (Recommendation16).

The Review also considered the ACIC’s relationship with the Australian Institute of Criminology (AIC) and recommended the AIC remain within the Attorney-General’s portfolio and continue to operate under the Criminology Research Act 1971 (Recommendation29).

Policy position of non-government parties/independents and stakeholders

At the time of writing, non-government parties/independents and stakeholders do not appear to have directly commented on the Bills.

Committee comments on the Bills

The Bills have been referred to the PJCIS for inquiry and report, with submissions closing on 5 June 2026.

The Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights have raised significant concerns with the Bills, including:

• the broad nature of the immunity provided to Examiners and authorised CIO participants, and available avenues for redress or compensation available to innocent third parties whose rights or interests are adversely affected
• the power of the Attorney-General to issue premises search warrants, person search warrants and assistance orders, and whether this power should be exercised by a judicial officer
• the lack of protections for affected person in warrant application and review proceedings
• the broad immunity conferred on the ACIC from civil or criminal liability for anything done or not done when it is acting as an administrator of the NPI system
• the availability of merits review
• the lack of a derivative use immunity for information provided by the ACIC to the prosecutor of a witness
• the broad authorisation for the disclosure of ACIC information, including personal information, to other agencies and bodies
• the use of evidentiary certificates in court proceedings for contempt of the ACIC
• the broad power of the Director-General to determine certain matters in relation to the making of criminal intelligence assessments by legislative instrument
• the ability of the Director-General to delegate their powers to non-APS consultants and secondees who perform the duties of a Senior Executive Service employee
• the disapplication of the Fair Work Act 2009 which would prevent a terminated employee from accessing protections under the Fair Work Act, including those relating to unfair dismissal and notice of termination.

Key issues and provisions

Role and functions of the ACIC

One of the key recommendations of the ACIC Review was that the ACIC be ‘clearly defined as Australia’s national criminal intelligence agency’, with the objects and functions clauses of the new legislation reflecting that the ACIC is an intelligence agency, not an investigative or law enforcement agency. As noted by the ACIC Review:

The ACC Act was substantially informed by the National Crime Authority Act 1984, and is no longer fit for purpose. In particular, the breadth of functions contained in section 7A of the ACC Act include both the conduct of special investigations as well as the collection and dissemination of intelligence. This wide breadth of functions creates a lack of clarity with respect to the Commission’s purpose. (p. 18)

Clauses 3 and 24 implement this recommendation by clarifying that the ACIC’s role will be focused on intelligence gathering, to the extent that the intelligence is relevant to ‘serious and organised crime’. The ACIC will also retain its functions in NCCHCs and the preparation and provision of individual criminal intelligence assessments.

Clause 10 defines ‘serious and organised crime’ to mean a ‘federal offence’ that may have been committed, may presently be being committed, or may in future be committed, in circumstances involving:

• 2 or more offenders
• substantial planning or organisation and
• the use of sophisticated methods and techniques.

A ‘federal offence’ includes Commonwealth offences, as well as state/territory offences that have a ‘federal aspect’, which are either punishable by imprisonment for a period of 2 years or more or prescribed by the rules. Clause 11 defines ‘federal aspect’ to mean where:

• the subject-matter of the offence is a subject on which the Commonwealth has constitutional power to legislate (for example, if a state offence affects the interests of, or was committed by, a constitutional corporation) or
• the performance of the ACIC’s intelligence or advisory functions (listed in clause 7) in relation to a state offence is incidental to the performance of the ACIC’s intelligence or advisory functions in respect of a Commonwealth or territory offence.

As the Explanatory Memorandum notes (p. 59), the ACIC will have the power to collect information or intelligence in the anticipatory or discovery phase (before it is able to be known whether the intelligence indicates a link to serious and organised crime).

Clause 25 clarifies that where the ACIC obtains particular information or intelligence in the course of performing one or more of its functions, the ACIC may use the information or intelligence in the performance of any of its other functions (except where the Act specifically precludes the ACIC from using this information). This would include where the ACIC has obtained information using its covert powers.[2]

Subject to an Instrument of Appointment made under section 40E the Australian Federal Police Act 1979, ACIC staff may currently be sworn in as Australian Federal Police (AFP) special members and may have access to certain enforcement powers and associated immunities. However, the ACIC Review was not supportive of these arrangements and recommended that ACIC officers be, instead, provided with certain warrant powers (discussed below). The ACIC Review also recommended that a formal mechanism be agreed between the ACIC and the AFP for the Commission to reliably receive support from the AFP for the provision of policing power (Recommendation 10). Clause 28 will require the Director-General of the ACIC and the AFP Commissioner to enter into a written agreement in relation to the provision of policing support by the AFP to the ACIC for the purposes of assisting or cooperating with the ACIC in the performance of the ACIC’s functions.

Governance of the ACIC

The Chief Executive Officer (CEO) is the accountable authority of the ACIC, with external oversight provided by the ACIC’s Board. Section 7C of the ACC Act sets out the Board’s functions, which include determining national criminal intelligence priorities, issuing determinations which authorise the use of coercive powers and making recommendations in relation to NPI systems.

The ACIC Bill provides that the ACIC will be led by, and under the control of, a Director-General, who will be the accountable authority of the ACIC (clauses 23, 33 and 35). While the ACIC Review had recommended disbanding the ACIC Board (Recommendation14, subject to other recommendations), it did not specifically recommend replacing the role of the CEO with the position of the Director-General. The ACIC Bill confers a broad range of functions on the Director-General (clause 34).

The Director-General is to be appointed by the Governor-General upon recommendation by the Prime Minister, who must consult with the Leader of the Opposition before recommending a person for appointment (clause 243). The Governor-General will also have the authority to terminate the Director-General on a range of grounds, including misbehaviour, inability to perform their duties and bankruptcy (clause 250). This corresponds with the Governor-General’s power to terminate the CEO except that subsection 44(2) of the ACC Act requires the Governor-General to terminate the CEO’s appointment in a range of circumstances (bankruptcy, unapproved leave of absence, paid employment without the Minister’s approval and failure to comply with the duty to disclose interests under the Public Governance, Performance and Accountability Act 2013). However, subclause 250(2) provides the Governor-General with the discretion to terminate the Director-General’s employment in these circumstances. This discrepancy also applies with respect to the termination of the employment of Examiners (see subsection 46H(2) of the ACC Act and subclause 258(2)). Non-discretionary termination in these circumstances is mandated for the heads of other national intelligence community agencies, such as the AFP Commissioner, the Director-General of the Australian Secret Intelligence Service, the Director-General of Security and the Director-General of the Australian Signals Directorate.

The Minister will have the power to issue directions to the Director-General where the Minister is satisfied that it would be in the public interest to do so, though must not give a direction in relation to the content of, or any conclusions to be reached in, any advice, report or assessment (however described) by the ACIC or the Director-General (subclauses 37(1) and (2)). Further the Minister must not override the opinion of the Director-General on the question of whether:

• the collection of intelligence by the ACIC concerning a particular person, entity or group would, or would not, be consistent with ACIC’s functions or
• the communication of intelligence concerning a particular person, entity or group would be consistent with the ACIC’s functions

unless the Minister sets out, in the direction, their reasons for overriding the opinion of the Director-General and provides a copy of the direction to the Prime Minister (subclauses 37(3) and 38(2)).

Copies of directions must be provided to the IGIS and the Secretary of the Department of Home Affairs. The Minister is required to table in Parliament a statement advising that a direction has been made (subclauses 37(8) and 38(9)).

Coercive powers

Similar to a Royal Commission, the ACIC has a range of coercive powers which are exercised by Examiners to obtain intelligence information. Examiners are senior statutory officeholders appointed by the Governor‑General who are required to have legal expertise (clause251).

As explained in the ACIC Review:

Coercive powers are a core capability of the ACIC and give Examiners the power to compel persons to appear at an examination and answer questions on oath or affirmation, and the power to compel persons, corporations and government agencies to produce documents or things. Under the current model, coercive powers may only be exercised by the ACIC for the purposes of a special ACIC operation or special ACIC investigation in relation to federally relevant crime. Special ACIC operations and special ACIC investigations are authorised by the ACIC Board in the form of a written determination, which relates to a particular type of criminal activity and provides a threshold and framework to guide the use of the powers. (p. 26)

Part 3 of the ACIC Bill will retain the ACIC’s use of these coercive powers, in line with the ACIC Review’s position that these powers remain ‘essential to the successful performance of the ACIC’s functions as an intelligence agency’ (p. 26). However, the ACIC Bill will make changes to the current authorisation model, which the ACIC Review found to no longer be effective (p. 27). The ACIC Review proposed a ‘double-lock process’ for authorisations which would require (pp. 28–29):

• the CEO of the ACIC request the Attorney-General to authorise the exercise of coercive powers for the purpose of obtaining intelligence in relation to a criminal network or organisation. Before granting authorisation, the Attorney-General must be satisfied that there were reasonable grounds for concluding that the criminal network/organisation referred to in the request was, or was reasonably likely to be, involved in federally relevant crime that met the threshold of serious and organised crime
• prior to issuing a summons, an Examiner must be satisfied that issuing the summons is reasonable in all the circumstances, and that the examination would substantially assist the collection of intelligence on a criminal network or organisation authorised by the Attorney-General.

The ACIC Bill has adopted this model with some variations.

Clause 41 will allow the Minister to issue an authorisation identifying serious and organised crime in relation to which the ACIC may exercise the powers provided for in Part 3 of the Act. This will replace the current functions of the ACIC Board to authorise ACIC operations. There is no requirement for the CEO of the ACIC to request that that Minister issue the authorisation (as recommended by the ACIC Review). An Examiner can only exercise their powers in relation to particular serious and organised crime after an authorisation identifying that serious and organised crime has been issued by the Minister, and while it is in force.

In issuing the authorisation, the Minister need only be satisfied that it is in the public interest and may take into account a range of factors set out in subclause 41(3). Subparagraph 41(6)(a) clarifies that for the avoidance of doubt the Minister is not required to consider these factors (though does not include subparagraph 41(3)(f) in listing the factors that the Minister is not required to consider, which appears to be a drafting error as the Explanatory Memorandum does not make this distinction (pp. 83, 87)). The authorisation may identify the serious and organised crime to which an authorisation relates at whatever level of generality the Minister considers appropriate, which could include references to specific offenders or categories of federal offences (subclauses 43(4)–(5)).

The Explanatory Memorandum notes that subsection 7C(4A) of the ACC Act currently requires the ACIC Board to be satisfied that it is in the public interest before issuing a determination and the test provides ‘a broad and flexible criterion for the issuing of authorisations’ (p. 82). However, the model proposed by the ACIC Review would have required:

the Attorney-General … be satisfied that there were reasonable grounds for concluding that the criminal network/organisation referred to in the request was, or was reasonably likely to be, involved in federally relevant crime that met the threshold of serious and organised crime. (p. 28).

The ACIC Review also recommended:

… following implementation of the new legislation, the ACIC undertake an annual assessment of the coercive powers authorisation instruments to enable early identification and remediation of any vulnerabilities which might result in a successful legal challenge to the powers. (Recommendation8)

The Government agreed with this recommendation (Government Response, p. 7).

As with Part II of the ACC Act, the ACIC Bill sets out the powers of Examiners. An Examiner may, for the purposes of obtaining intelligence relevant to serious and organised crime:

• require a person to give information, or produce a document or thing, by giving the person a notice to produce (clause 50)
• conduct an examination (clause 58) and summon a person to attend the examination (clause 59).

A person must comply with a notice to produce or a summons to attend an examination. There are offences for:

• failing to comply (clauses 56 and 75)
• giving false or misleading information (clauses 57 and 79)
• failing to give information, or produce documents or things (clause 76)
• failing to provide assistance at an examination (clause 77)
• destroying information, documents or things (clause 78)
• obstructing or hindering examinations, or threatening persons present (clause 80).

The maximum penalty for all these offences is imprisonment for 5 years or 300 penalty units ($99,000) or both.

Examiners will also retain their powers to issue directions to agencies requesting they provide information to the ACIC (clause 47). Currently Examiners can request information from agencies where it is relevant to a special ACC operation/investigation (sections 19A and 20 of the ACC Act). Clause 47 will allow a non-enforceable direction to be issued where an Examiner reasonably suspects that an agency has information that would assist the ACIC to obtain intelligence relevant to serious and organised crime that is identified in an authorisation in force under Part 3.

Controlled intelligence operations

Controlled operations are investigations carried out within a legal framework that permit certain law enforcement agencies to undertake covert activity which would, in the absence of legislation, constitute an offence against the law of the Commonwealth or that of a state or territory. The ACIC is already permitted to undertake controlled operations under Part IAB of the Crimes Act 1914 and is required to report on these operations each financial year.

The ACIC Review found that, as the Crimes Act regime is aimed at the collection of evidence as part of a criminal investigation, it would not be appropriate for the purposes of the ACIC’s new focus on intelligence gathering (p. 31). The ACIC Review recommended the ACIC be given controlled operations-style powers that are designed for an intelligence collection purpose:

We consider the most appropriate mechanism would be for the ACIC to have access to powers akin to the Special Intelligence Operations (SIO) framework in the ASIO Act. The threshold for the powers would need to be tied to the ACIC’s intelligence functions. Safeguards within the SIO framework, such as ministerial authorisation and notification to the Inspector-General of Intelligence and Security, should be similarly applied to the ACIC. Arrangements to inform states and territories of controlled operations taking place in their jurisdiction would also be appropriate, although that information would then need to be very tightly held. (p. 31, Recommendation 9)

The Government supported this recommendation (Government Response, p. 8). Part 4 of the ACIC Bill establishes a statutory framework for the conduct of CIOs by the ACIC.

A CIO authority authorises a person who is identified in the authority to engage in the controlled conduct specified in the authority in respect of the person (subclause141(1)). Further, a participant in a CIO who engages in conduct that satisfies the requirements of subclause143(1) will not be subject to any criminal or civil liability in relation to that conduct.

The Explanatory Memorandum provides an example of how a CIO operates in practice:

For example, it is an offence under subsection 307.1 of the Criminal Code for a person to import border controlled drugs. If a CIO participant is tasked with infiltrating a drug importation syndicate, they may need to engage in planning discussions regarding methods of importation, handle or inspect consignments, or facilitate shipping or logistics of border controlled drugs. These actions may be necessary to maintain the participant’s cover, to enable them to obtain intelligence on methodologies, hierarchies and supply-chain structures of criminal syndicates, that cannot be obtained through the ACIC’s other powers. These actions may expose participants to criminal liability under subsection 307.1, or other similar or related offences. (p. 231)

The process for granting a CIO authority involves the Director-General of ACIC making a request to the Attorney-General to grant the CIO Authority. Before making a request, the Director-General must be satisfied that, having regard to the nature of any unlawful conduct that may be engaged in by a person that the CIO may involve, it is appropriate and proportionate for a person to have immunity from liability (subclause 129(2)). Before granting the request, the Attorney-General must be satisfied that there are reasonable grounds for believing that (subclause 130(2)):

• the CIO will assist the ACIC to obtain, correlate, analyse and evaluate intelligence relevant to serious and organised crime
• the circumstances justify the conduct of a CIO
• any unlawful conduct involved in conducting the CIO will be limited to the maximum extent consistent with conducting an effective CIO
• the CIO will not be conducted in such a way that a person is likely to be induced to commit an offence against a law of the Commonwealth, a state or a territory that the person would not otherwise have intended to commit
• any unlawful conduct of participants in the CIO will not:
  • seriously endanger the health or safety of any person
  • cause the death of, or serious injury to, any person
  • involve the commission of a sexual offence against any person or
  • result in significant loss of, or serious damage to, property
• any role assigned to a civilian participant in the CIO is not one that could be adequately performed by an ACIC staff member.

The Attorney-General is required to notify the Director-General as to the granting of, or the refusal, of a CIO request (subclause 130(5)). The maximum duration of a CIO authority granted by the Attorney-General is 12 months (subparagraph 138(e)(i)).

The ACIC Bill will also allow the Director-General to grant an authority to conduct a CIO where the Director-General is satisfied that any delay that may be caused by requesting the Attorney-General to grant the authority would be likely to affect the success of the COI (if the authority were to be granted) (clause 133). The Director-General must be satisfied that the requirements set out above have been met and must notify the Attorney-General as to the granting of, or refusal, of a CIO request. The maximum duration of a CIO authority granted by the Director-General is 7 days (subparagraph 138(e)(ii)).

Part 4 also provides for offences with respect to unauthorised communications that relates to or would impact CIO operations (clauses 147 and 148). A prosecution of either of these offences can only be commenced where the Attorney-General has consented (though this would not prevent a person being arrested or charged for these offences) (clause 149).

Search warrants and disruption activities

As discussed above, ACIC staff may currently be sworn in as AFP special members and may have access to certain enforcement powers and associated immunities under the Crimes Act. Additionally, eligible persons (Examiners and members of staff of the ACIC who are also AFP special members) may apply for search warrants to search for things relevant to a special ACIC investigation or operation that is occurring, in circumstances where there is a risk that the item or document would be concealed, lost, mutilated or destroyed if a summons to produce it were issued (section 22 of the ACC Act).

The enactment of the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021provided the ACIC with new electronic surveillance powers:

… the data disruption warrant (DDW), which allows AFP and ACIC to modify, add, copy or delete data to disrupt online crime; the network activity warrant (NAW), which allows AFP and ACIC to collect intelligence about a ‘criminal network of individuals’ or anyone electronically connected to that network; and the account takeover warrant (ATW), which allows AFP and ACIC to take control of a person’s online accounts to gather evidence. (p. i)

These powers were recently the subject of a review by the Independent National Security Legislation Monitor (INSLM) which recommended that the ACIC no longer be allowed to use data disruption warrants and the ACIC’s use of account takeover warrants be restricted to intelligence purposes. The ACIC Review also considered that ‘disruption activities go beyond the ACIC’s intelligence functions and should be the preserve of law enforcement and other appropriately authorised agencies.’ (p. 32)

The ACIC Review recommended that ACIC staff be able to apply for and execute relevant warrants for the purposes of the ACIC’s intelligence functions (Recommendation 10), as well as similar search warrants to those already available at section 22 of the ACC Act. Part 5 of the ACIC Bill provides a framework for the Attorney-General, at the request of the Director-General, to issue search warrants and make assistance orders.

Divisions 2 and 3 of Part 5 will allow for the Director-General to request, and the Attorney‑General to issue, a search warrant relating to premises (clauses 156 and 157) and persons (clauses 160 and 161), respectively. The authority conferred by a search warrant can only be exercised by the Director-General or a person, or class of persons, who the Director‑General has approved in writing (clause 166). Subclause 165(4) authorises the use of any force against persons and things that is necessary and reasonable to do the things specified in the warrant, and any use of force against a person in the execution of a premises search warrant must be reported to the Attorney-General and the IGIS by way of written notice (clause 173).

A premises search warrant may authorise the ACIC to enter and search premises for relevant documents and things, and to search certain persons at or nearby the premises (clause158). A premises search warrant may also authorise the ACIC to use electronic equipment to obtain access to data held in, or accessible from, a computer or device that is found during the search, and to seize documents and things that are found.

Before issuing a premises search warrant, the Attorney-General must be satisfied that there are reasonable grounds for believing that access by the ACIC to documents or other things on the premises will substantially assist the ACIC to obtain intelligence in accordance with the Act in respect of a matter that is important in relation to combatting serious and organised crime (paragraph 157(1)(b)).

In considering whether to issue a premises search warrant, the Attorney-General must have regard to the following:

• the nature and gravity of the serious and organised crime matter
• the extent to which the warrant is likely to assist the ACIC in carrying out its function of obtaining intelligence relevant to serious and organised crime
• how much the privacy of any person would be likely to be interfered with as a result of executing the warrant
• whether alternative methods of obtaining intelligence are available that:
  • do not involve the use of the ACIC’s warranted powers
  • would be effective and reasonably practicable to use in the circumstances
• whether it is necessary in the circumstances for the premises search warrant to authorise the doing of any thing reasonably necessary to conceal the fact that a thing has been done under the warrant.

A person search warrant authorises the ACIC to search a person, things in the person’s possession, or conveyances operated or occupied by the person within the last 24 hours, for relevant documents or things (clause 162). Things found during the search can be moved to another place for examination and processing in accordance with clause 163.

Before issuing a person search warrant, the Attorney-General must be satisfied that (subclauses161(1)–(3)):

• there are reasonable grounds for suspecting that the person has in their possession, or will within the next 72 hours have in their possession, a document or thing
• there are reasonable grounds for believing that access by the ACIC to the document or thing will assist the ACIC to obtain intelligence in accordance with the Act in respect of a serious and organised crime matter and
• either:
  • a summons or notice to produce has been issued requiring the person to produce the document or thing, and there are reasonable grounds for believing that the document or thing, or information or a document held in or accessible from the thing, might be concealed, lost, mutilated or destroyed or
  • there are reasonable grounds for believing that if a summons or notice to produce were issued to require the person to produce the document or thing, the document or thing, or information or a document held in or accessible from the thing, might be concealed, lost, mutilated or destroyed.

The ACIC Bill imposes limitations on what actions are authorised under the warrant framework. Subclause 165(1) provides that a search warrant may not authorise the addition, deletion or alteration of data, or the doing of any thing that is likely to materially interfere with, interrupt or obstruct the lawful use by other persons of a computer found during the execution of a search warrant. However, this excludes actions necessary to execute the warrant.

Subclause 165(2) specifically states that a search warrant does not authorise a strip search or a search of a person’s body cavities, while subclause 165(3) provides that an ordinary search or frisk search must be conducted by a person of the same gender as the person being searched, if practicable. Such searches would also only be conducted by approved constables (paragraph 166(4)).

The Director-General must give a written report to the Attorney-General, the Minister and the IGIS as soon as practicable after 30 June and 31 December each year on search warrants that ceased to be in force in each 6-month period. Subclause 170(2) sets out a list of information that must be included in the report. The Director-General will also be required to report to the Attorney-General, the Minister and the IGIS on any concealment activities that have occurred after a warrant has ceased to be in force (clause 171) and any non-compliant actions that have occurred (clause 172).

The Attorney-General will also be responsible for authorising the use of assistance orders under Division 5 of Part 5 (clause 175). An assistance order would require a person with knowledge of a computer or data storage device to provide assistance that is reasonable and necessary to allow the ACIC to access data on a computer or device that is found or seized during the execution of a search warrant or is moved for examination or processing under Part5 (clause 176).

The Explanatory Memorandum provides guidance on what could constitute an assistance order:

The types of assistance that the ACIC may seek could include compelling a target or a target’s associate to provide the password, pin code, sequence or fingerprint necessary to unlock a phone seized during execution of a search warrant under this Part. An assistance order may also be used, for example, where a specialist employee of a business subject to a premises search warrant could assist ACIC staff members to access electronic databases or use software so that the ACIC can obtain access to relevant data. Due to emerging technologies like end-to-end encryption, the ACIC may require assistance to be able to gain access to data stored on electronic devices in an unencrypted form to obtain intelligence relevant to combatting serious and organised crime. (p. 324)

The maximum penalty for failing to comply with an assistance order is 5 years imprisonment, 300 penalty units ($99,000), or both (clause 179).

Concluding comments

In submissions to the ACIC Review, stakeholders commented that the ACIC was ‘neither fish nor fowl’ and was ‘trapped between a rock and a hard place’ (p. 19). The ACIC Review agreed with these findings, concluding that as it currently operates the ACIC is ‘neither a first‑class investigative agency nor a first-class criminal intelligence agency’. (p. 19)

John Coyne and Liam Auliciems from the Australian Strategic Policy Institute have noted that the ‘transition of the ACIC to an intelligence-focused agency offers a strong opportunity to strengthen Australia’s response to organised crime.’ However, in order for this to happen, they have argued the Government must first address a number of challenges, which include redistributing the ACIC’s operational functions to other agencies; ensuring that the ACIC’s intelligence is actionable and integrated into the broader national security and law enforcement framework; providing for a secure, long-term funding model; and recruiting and retaining a skilled workforce.