1.1
The Australian Crime Commission Amendment (Special Operations and Special Investigations) Act 2019 (SOSI Act) amended the Australian Crime Commission Act 2002 (ACC Act) to:
respond to High Court challenges regarding the lawfulness of Australian Criminal Intelligence Commission (ACIC) determinations by confirming the validity of current and former special operations and special investigations determinations; and
amend the ACIC Board's process for authorising special ACC operations (special operations) and special ACC investigations (special investigations) by amending the threshold that must be met for such operations and investigations in that they are in the public interest to occur.
1.2
The Board's authorisation of special operations and special investigations by determination enlivens the ACIC's coercive powers under Division 2 of Part II of the ACC Act.
Referral and terms of reference
1.3
On 19 January 2021, the then Minister for Home Affairs, the
Hon Peter Dutton MP, requested that the Parliamentary Joint Committee on Law Enforcement (the committee) conduct an inquiry into the operation of the SOSI Act.
1.4
The Minister suggested that the committee consider the effectiveness of the SOSI Act in achieving its aim for the ACIC to continue to fulfil its statutory functions without interruption.
1.5
In response, on 17 February 2021, the committee resolved, pursuant to section 7 of the Parliamentary Joint Committee on Law Enforcement Act 2010, to inquire into and report on the operation of the SOSI Act, with particular reference to whether the Act has:
(a)
appropriately streamlined the process by which the [ACIC] Board determines to authorise the ACIC to undertake a special operation or special investigation;
(b)
ensured the validity of, at the time, current, former and future special operation and special investigation determinations of the ACIC;
(c)
effectively achieved its aim of enabling the ACIC to continue to fulfil its statutory obligations without interruption; and,
(d)
any other relevant matter.
Conduct of the inquiry
1.6
The committee advertised the inquiry on its website inviting submissions by 23 April 2021. In addition, the committee wrote directly to a wide range of organisations inviting written submissions.
1.7
The committee received five submissions and one supplementary submission. These submissions are listed at Appendix 1 of this report, and are available in full on the committee's website.
1.8
The committee held a public hearing in Canberra on 25 June 2021. A complete list of witnesses who gave evidence at the hearing is at Appendix 2.
Acknowledgement
1.9
The committee thanks all inquiry participants, including those who appeared as witnesses at the public hearing.
Note on references
1.10
References to the Committee Hansard are references to the proof transcript. Page numbers may differ between proof and official transcripts.
Structure of this report
1.11
This report consists of two chapters:
This chapter outlines the administrative details of the inquiry, provides an overview of the SOSI Act, the ACIC Board, the ACIC and its coercive powers.
Chapter 2 considers the issues raised in evidence and sets out the committee's views and recommendations.
Overview of the ACIC and the ACIC Board
The role of the ACIC
1.12
The ACIC, established under section 7 of the ACC Act, is Australia's national criminal intelligence agency and is part of the Home Affairs Portfolio. Its purpose is to:
…make Australia safer through improved national ability to discover, understand and respond to current and emerging crime, including the ability to connect police and law enforcement to essential criminal intelligence, policing knowledge and information through collaborative national information systems and services.
1.13
The ACIC works closely with law enforcement partners to improve the national ability to respond to serious and organised crime impacting Australia. As the ACIC puts it, it is also 'the conduit for sharing criminal information and intelligence between all state, territory and Commonwealth law enforcement agencies'.
1.14
Section 7A of the ACC Act outlines the ACIC's functions, which are to:
collect, correlate, analyse and disseminate criminal information and intelligence;
maintain a national database of criminal information and intelligence;
provide and maintain national information capabilities and services to support policing and law enforcement;
provide strategic criminal intelligence assessments and advice on national criminal intelligence priorities;
conduct investigations and intelligence operations into federally relevant criminal activity; and
provide nationally coordinated criminal history checks.
The role of the ACIC Board
1.15
The Board of the ACIC is established under section 7B of the
ACC Act. It provides strategic direction to the ACIC and determines which investigations and intelligence operations are authorised to use the ACIC's coercive powers.
1.16
The Board is comprised of the following 15 members:
the Commissioner of the Australian Federal Police (Chair);
the Secretary of the Department (Secretary, Department of Home Affairs);
the Comptroller-General of Customs (Commissioner, Australian Border Force);
the Chairperson of the Australian Securities and Investments Commission;
the Director-General of Security (Australian Security Intelligence Organisation);
the Commissioner or head of Police of each State and of the Northern Territory;
the Chief Police Officer of the Australian Capital Territory;
the Chief Executive Officer of the ACIC (non-voting member); and
the Commissioner of Taxation.
1.17
In addition, the Board has two non-voting observers:
the Chief Executive Officer of the Australian Transaction Reports and Analysis Centre; and
the Secretary of the Attorney-General's Department.
1.18
Section 7C of the ACC Act sets out the Board's functions, which are to:
determine the national criminal intelligence priorities and priorities for the national policing information systems and services;
provide strategic direction to, and determine the priorities for, the ACIC;
authorise, by determination, special operations and special investigations to occur;
determine the class, or classes of people, to participate in an special operation/investigation;
disseminate strategic intelligence assessments provided by the ACIC to relevant stakeholders;
make recommendations to the Minister about expenditure from the National Policing Information Systems and Services Special Account, and charges for national policing information services (including criminal history checks);
determine policies and give directions to the ACIC Chief Executive Officer about disclosing national policing information and approving a body as an accredited body;
determine any conditions or restrictions to providing nationally coordinated criminal history checks;
report to the Inter-Governmental Committee (which is discussed further below) on the ACIC's performance; and
undertake other functions conferred on the Board by other provisions of the ACC Act.
Inter-Governmental Committee on the ACIC
1.19
The Inter-Governmental Committee (IGC) is established under section 8 of the ACC Act. It consists of the Commonwealth Minister for Home Affairs and the appropriate ministers of each state and territory.
1.20
The IGC's role is to monitor the work of the ACIC and the Board, oversee the strategic direction of the ACIC and the Board, receive reports from the Board and transmit those reports to the Governments represented on the IGC.
1.21
The Chair of the Board must inform the IGC of a determination within seven days of it being made. The IGC can request further information about the determination and has the power to revoke it within 30 days of its request for more information.
The ACIC's coercive powers
1.22
Pursuant to the ACC Act, the ACIC can exercise several coercive powers to obtain information and intelligence as part of a special operation/investigation. However, the ACIC can only utilise its coercive powers if the Board has authorised, by determination, a special operation/investigation to occur.
Special operations and special investigations
1.23
Section 4 of the ACC Act states a special operation is an intelligence operation that the Board has authorised to occur. According to the ACIC, special operations 'focus on gathering intelligence on a particular criminal activity, so informed decisions can be made about the extent, impact and threat of that criminal activity'.
1.24
A special investigation is an investigation into matters relating to federally relevant criminal activity that the Board has authorised to occur. The ACIC stated that special investigations not only collect intelligence but also disrupt and deter identified criminal groups by collecting evidence of criminal activity that may result in arrests and/or seizures of illegally obtained assets.
Current special operations and special investigations
1.25
On 28 July 2020, the Board authorised, by determination, and pursuant to the public interest test of the ACC Act, seven new special operations and two special investigations, namely:
Special operations
Outlaw Motor Cycle Gangs Special Operation 2020
National Security Impacts from Serious and Organised Crime Special Operation 2020
High Risk and Emerging Drugs Special Operation 2020
Firearm Trafficking Special Operation 2020
Emerging Organised Crime Threats Special Operation 2020
Cyber-Related Offending Special Operation 2020
Criminal Exploitation of Australia's Migration System Special Operation 2020
Special investigations
Targeting Criminal Wealth Special Investigation 2020
Highest Risk Criminal Targets Special Investigation 2020
Determinations
1.26
As mentioned above, the Board authorises special operations and investigation to occur by determination. In order for the Board to authorise a special operation/investigation, it must be satisfied that based on the collective experience of voting members of the Board it is in the public interest to do so. However, the Board cannot authorise a special operation/investigation unless at least nine Board members (including a minimum of two eligible Commonwealth Board members) vote in favour of making the determination.
1.27
A determination may identify federally relevant criminal activity, with reference to categories of relevant criminal activities or suspected offenders, specific allegations of crime or offenders, or a combination of these.
1.28
Furthermore, according to subsection 7C(4C) of the ACC Act, the determination must, to the extent the Board considers appropriate, set out the purpose of the special operation/investigation and describe the general nature of the circumstances or allegations relating to the determination.
1.29
However, the determination is not required to specify:
any particular offence(s) or conduct;
the transaction or person to which the investigation or operation relates; or
any timeframe relating to:
when the relevant criminal activity may have occurred; or
when the investigation or operation must start or conclude by.
1.30
It is important to note, however, that the validity of the determination is not affected by any failure to comply with the specifics of subsection 7C(4C).
1.31
A determination can be made, and has effect, regardless of whether the ACIC:
is already investigating any or all of the relevant criminal activity to which the determination relates;
subsequently investigates any or all of the relevant criminal activity to which the determination relates other than through the use of coercive powers; or
decides to investigate some part of the relevant criminal activity to which the determination relates because of a request from another law enforcement agency for assistance.
Examiner powers
1.32
Once the Board has authorised a special operation/investigation to occur, the ACIC is able to exercise its powers and can authorise an ACIC examiner to:
summon witnesses to give evidence at an examination; and
issue notices requiring people to produce relevant documents or things.
1.33
An ACIC examiner is an enrolled legal practitioner, with at least five years of legal experience. Examiners are statutorily appointed by the Governor-General based on the advice of the IGC. An examiner is empowered to exercise the ACIC's coercive powers relating to special operations and investigations.
1.34
Examinations are inquisitorial in nature and held in private. A witness can be summoned to an examination before or after a charge has been laid by a law enforcement agency, or before or after a confiscation application. Examinations are conducted at the discretion of the examiner, who can also give directions regarding who can be present during an examination.
1.35
Witnesses may claim privilege against self-incrimination when asked to answer questions or produce documents or things in some circumstances. If a witness fails to attend an examination, answer questions or produce documents or other things, the witness can be found guilty of an offence which is punishable by a fine or imprisonment.
No powers to prosecute
1.36
The ACIC is not a prosecutor. However, if the ACIC obtains evidence of an offence while carrying out a special operation/investigation, the Chief Executive Officer (CEO) of the ACIC must provide the evidence to the relevant Attorney-General, law enforcement agency or authority to prosecute the offence as the case requires.
1.37
In addition, the CEO may also share information with law enforcement agencies and other bodies in certain circumstances.
CXXXVIII v the Commonwealth of Australia
1.38
The legal disputes between CXXXVIII and the Commonwealth of Australia concerned the ACIC's use of its coercive powers. In June 2018, CXXXVIII was served with a summons to present to an examination and to produce certain items in their possession. The summons and notice were later found to be defective and a new summons and notice were issued.
1.39
Subsequently, CXXXVIII sought a judicial review to challenge this decision as well as the legality of the determination which allowed the summonses and notice to be served. In reply, the ACIC conceded that the first summons and notice were ineffectually served, but maintained the second summons and notice was 'lawfully and validly issued and served'.
1.40
The matter was heard in the Federal Circuit Court and Justice Brown ruled that the Board's determination was sufficient and that the second summons and notice contained all the information required under the ACC Act. Following the decision, CXXXVIII applied to the Full Federal Court seeking to appeal Justice Brown's judgement; however, the appeal was dismissed.
1.41
When CXXXVIII applied to the High Court to appeal the Full Federal Court's ruling, some media reports suggested that the Commonwealth Government was 'forced to urgently act', and therefore introduced the SOSI bill to retrospectively validate ACIC special investigations.
1.42
CXXXVIII amended the grounds of appeal following the enactment of the SOSI Act, to challenge the validity of parts of those legislative amendments. In August 2020, the appeal did not proceed to a hearing. The High Court directed that the summons and notice to produce be withdrawn and the Commonwealth Government pay the costs of the case.
Overview and purpose of the SOSI Act
1.43
As mentioned above, the SOSI Act, passed on 5 December 2019, amended the ACC Act to:
confirm the validity of current and former special operation and investigation determinations;
amend the process by which the ACIC Board authorises future special operation and investigation determinations; and
make consequential amendments.
1.44
In his second reading speech, Minister Dutton explained that the bill does not introduce new powers:
This bill will make technical amendments to the [ACC Act]…The bill does not expand or otherwise alter the powers available to the ACIC in the course of undertaking a special operation or special investigation…[and] will ensure that the [ACIC] can continue to effectively detect, prevent and disrupt the nefarious activities of serious and organised crime targets.
1.45
The SOSI Act was introduced and passed by the Parliament within the course of a week. Due to the relatively quick timeframe, Minister Dutton provided assurance that within 12 months of the SOSI Act's enactment, the government would refer the operation of the SOSI Act to this committee for review.
1.46
The SOSI Act made several key amendments to the ACC Act:
Introduced new definitions for special operation and special investigation under subsection 4(1).
Amended the Board's process for authorising special operations/investigations by introducing a public interest threshold under subsection 7C(4A).
Inserted under subsection 7C(4B) that a determination can be made, and has effect, regardless whether the ACIC is already investigating, subsequently investigates or decides to investigate, any or the entirety of the federally relevant criminal activity to which the determination relates.
Changed the level of specificity needed in a determination under subsections 7C(4) and (4C) and inserted that the validity of a determination is not affected by any failure to comply with subsection (4C).
Introduced a three-year life for determinations under subsection 7C(4G), unless revoked by the Board. In addition, according to subsection 7C(4H) the ending or repeal of a determination does not prevent the Board from making another determination in the same terms.
Validated former and current Board determinations and any exercise of powers in connection to those determinations, irrespective of whether the determination, or action taken in relation to a determination, did not satisfy the requirements of the ACC Act.
Consideration by other committees
1.47
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) considered the SOSI bill before its enactment and raised some concerns regarding the SOSI bill's provision of broad discretionary power to authorise a special operation/investigation, no-invalidity clause and retrospective validation of previous ACIC determinations.
1.48
Given its concerns, the Scrutiny committee sought further advice from Minister Dutton on the matters raised. Specifically, the committee asked:
(a)
why the Board had been provided with broad discretionary powers to authorise special operations/investigations;
(b)
why it was necessary and appropriate to include a no-invalidity clause in relation to the actions required of the Board;
(c)
why it was necessary and appropriate to retrospectively validate both determinations by the Board and the exercise of powers done in connection with any special operation/investigation;
(d)
how many persons were likely to be affected by this retrospective validation, whether any affected persons would suffer a detriment as a result and whether this would lead to unfairness; and
(e)
whether there were any current matters before the courts that may be affected and the extent to which a matter may be affected.
Minister Dutton's advice to the Scrutiny Committee
1.49
In response to the Scrutiny Committee's request for advice, Minister Dutton advised the committee that the inclusion of a public interest test strengthened the threshold for making determinations, and stated:
The public interest test enables the [ACIC] Board to consider all relevant matters in authorising a determination, rather than solely the utility of traditional law enforcement or criminal information/intelligence collection methods in the circumstances…the Board is highly experienced in understanding the law enforcement and intelligence environment, and well-placed to make a public interest assessment.
1.50
Minister Dutton pointed out that the 'use of public interest tests are well-established in the exercise of decision-making authority under Commonwealth and state and territory legislation'.
1.51
In regard to the retrospective validation of determinations, Minister Dutton advised that this would support the ACIC to continue to undertake special operations and investigations, which are critical to its role, and keeping Australia safe from the most serious criminal offending. Importantly, he noted that:
While the legality of previous determinations have been upheld, given the critical role of the [ACIC] in combatting serious and organised crime, the [g]overnment has a responsibility to provide certainty regarding the status of special operation and special investigation determinations. As such, the [b]ill contained technical provisions to validate current and former special operation and special investigation determinations, and to provide clarity regarding the validity of future special operation and special investigation determinations.
1.52
Overall, the Scrutiny Committee thanked Minister Dutton for his advice but stated it still had concerns regarding the bill, but as it had already passed Parliament, the committee made no further comments.
1.53
No other committees commented on the SOSI bill, including the Parliamentary Joint Committee on Human Rights.