At 30 June 2019, the ACIC was part of the Home Affairs portfolio and accountable to the Minister for Home Affairs.

Our external scrutiny includes the ACIC Board, the Inter-Governmental Committee on the Australian Crime Commission, the Parliamentary Joint Committee on Law Enforcement and the Senate References Committee on Legal and Constitutional Affairs.

Due to the nature of our business, we operate in a contested environment and are subject to legal challenge as a normal part of our operations. The Commonwealth Ombudsman, ACLEI and the Australian National Audit Office also form part of our external scrutiny framework, as shown in Figure 3.3.

Figure 3.3: ACIC external accountabilities at 30 June 2019

Ministerial arrangements

At 30 June 2019, the Home Affairs portfolio included the following ministers:

• Minister for Home Affairs, the Hon Peter Dutton MP
• Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon David Coleman MP
• Assistant Minister for Customs, Community Safety and Multicultural Affairs, the Hon Jason Wood MP.

While we are accountable to all portfolio ministers as required, most of our work during 2018–19 related to the areas covered by Minister Dutton.

The Hon Peter Dutton MP was sworn in as the Minister for Home Affairs on 20 December 2017. Following the 2019 federal election, the Hon Peter Dutton MP was again sworn in as the Minister for Home Affairs on 29 May 2019.

Parliamentary Joint Committee on Law Enforcement

At 30 June 2019, the Parliamentary Joint Committee on Law Enforcement consisted of nine members. The committee is made up of four members from the Senate (appointed by the Senate) and five members from the House of Representatives (appointed by the House). The committee meets as required.

At 30 June 2019, the members of the committee were:

• Mr Craig Kelly MP (Chair)
• Senator the Hon Lisa Singh (Deputy Chair)
• Senator the Hon Eric Abetz
• Dr Anne Aly MP
• Senator the Hon Richard Colbeck
• Senator the Hon Kristina Keneally
• Mr Llew O’Brien MP
• Ms Clare O’Neil MP
• Mr Jason Wood MP.

The duties of the committee are to:

• monitor and review the performance of the ACIC and Australian Federal Police (AFP) and their functions
• report to both Houses of the Parliament any matters relating to the ACIC or AFP or their performance of which the committee thinks the Parliament should be aware
• examine the annual reports of the ACIC and AFP and report to the Parliament on any matter appearing in, or arising out of, any such annual report
• examine trends and changes in criminal activities, practices and methods and report to the Parliament any change to the functions, structure, powers and procedures of the ACIC or the AFP that the committee thinks desirable
• inquire into issues, within its area of responsibility, raised by the Parliament, and report back.

Under section 7(c) of the Parliamentary Joint Committee on Law Enforcement Act 2010, the committee is required to examine each annual report of the ACIC. This is usually done through a public hearing.

Other parliamentary committees

Each year we contribute to various parliamentary inquiries affecting national law enforcement capability and activities. For details of our contributions in 2018–19, see 'Reviews and parliamentary inquiries' in Respond 1—Prevent section.

In addition, in 2018–19, we were called on to appear before the Senate Legal and Constitutional Affairs References Committee at Budget Estimates hearings on 22 October 2018, 18 February 2019 and 8 April 2019. Transcripts of the proceedings and responses to questions on notice are available on the committee’s website.

Inter-Governmental Committee on the Australian Crime Commission

The Inter-Governmental Committee on the Australian Crime Commission (IGC-ACC) is established by section 8 of the ACC Act, with the following functions:

• to monitor generally the work of the ACIC and the ACIC Board
• to oversee the strategic direction of the ACIC and the ACIC Board
• to receive reports from the ACIC Board for transmission to the governments represented on the committee and to transmit those reports accordingly.

The IGC-ACC monitors the work and strategic direction of the ACIC and the ACIC Board, including the use of coercive powers. Under certain circumstances, the committee has the authority to revoke a board determination.

The IGC-ACC comprises the Minister for Home Affairs and a minister to represent each state and territory government, nominated by the premier or chief minister of the state or territory. At 30 June 2019, the members were:

• the Hon Peter Dutton MP (Commonwealth) (Chair)
• the Hon David Elliot MP (New South Wales)
• the Hon Lisa Neville MP (Victoria)
• the Hon Michael Ferguson MP (Tasmania)
• the Hon Corey Wingard MP (South Australia)
• the Hon Michelle Roberts MLA (Western Australia)
• the Hon Nicole Manison MLA (Northern Territory)
• the Hon Mark Ryan MP (Queensland)
• the Hon Mick Gentleman MLA (Australian Capital Territory).

ACIC Board

The ACIC Board is established by section 7B of the ACC Act and is responsible for providing strategic direction to the ACIC and setting strategic priorities for the agency. The board is also responsible for determining whether an intelligence operation or investigation is ‘special’ and therefore may involve use of the coercive powers set out in the ACC Act.

In setting the ACIC’s strategic direction, the board is able to fuse together state, territory and national interests and provides a significant platform from which to operate collaboratively with our partners.

The board considers a range of issues at each meeting, including the overall performance of key areas of ACIC work. It also plays an active role in addressing strategic issues faced by the ACIC and authorising or identifying key areas of new work that we should pursue.

As set out in section 7B of the ACC Act, the ACIC Board comprises the:

• Commissioner, Australian Federal Police (Chair)
• Secretary, Department of Home Affairs
• Comptroller-General, Customs (Commissioner of the Australian Border Force)
• Chairperson, Australian Securities and Investments Commission
• Director-General of Security, Australian Security Intelligence Organisation
• Commissioner of Taxation, Australian Taxation Office
• commissioners of all state police forces and the Northern Territory police force, and the Chief Police Officer, ACT Policing
• CEO, ACIC (as a non-voting member).

The CEO of the Australian Transaction Reports and Analysis Centre (AUSTRAC) and the Secretary of the Attorney-General’s Department attend board meetings as non-voting observers.

Chair’s annual report

Details of ACIC Board meetings and the Chair’s report on the ACIC’s operations are contained in the Australian Criminal Intelligence Commission Chair Annual Report, which is tabled separately as soon as is practicable after 30 June and fulfils the reporting requirements of the ACC Act.

Board decisions and considerations

During 2018–19, the board was responsible for the authorisation and determination of special investigations and special operations and the establishment of task forces as shown in tables 3.2 and 3.3.

Table 3.2: ACIC Board authorisations and determinations at 30 June 2019

Table 3.3: ACIC Board-established task forces at 30 June 2019

In addition, in 2018–19, the board:

• approved the 2019–20 national criminal intelligence priorities
• reviewed ACIC strategic priority areas and the planned activity and response to identified threats, and determined the priorities for the ACIC’s special investigations and special operations
• considered arrangements for the National Criminal Intelligence System
• approved ongoing access to information for the Enhanced Biometrics at the Border project
• noted that the Australian Cyber Security Centre has taken responsibility for a cybercrime reporting system to replace the Australian Cybercrime Online Reporting Network
• noted prioritisation of ICT projects to ensure delivery of key priorities
• agreed to progress further work on key recommendations in the 2015 Independent Review of the ACC Act (as required under section 61A of the ACC Act), which presents an opportunity to ensure that the ACIC has the necessary powers to support our investigative and intelligence functions.

During 2018–19, the ACIC Board farewelled Commissioner Ian Stewart, Queensland Police Service, who was appointed to the board in 2012.

Board-endorsed external governance and engagement model

The board endorsed updated external governance arrangements on 13 June 2018 to support the effective operation of the ACIC. The arrangements include external engagement bodies comprising representatives from board member agencies and other relevant partner agencies.

The role of these bodies is to provide advice to the ACIC CEO in accordance with the CEO’s functions as prescribed under the ACC Act, as follows:

• Law Enforcement Information Services Capability Committee—This committee informs the development, implementation and operation of initiatives that support national law enforcement information-sharing services and systems for Australia’s police, wider law enforcement and national security agencies.
• National Criminal Intelligence Capability Committee—This committee promotes and champions the professionalism of the national criminal intelligence capability and collaborates on strategic intelligence issues at the national level to ensure coordinated advice for Australia’s police, wider law enforcement and national security agencies.
• Technology Capability Committee—This committee informs and supports the development, implementation and operation of the national services and systems that we deliver for Australia’s police, wider law enforcement and national security agencies.

Australian Commission for Law Enforcement Integrity

The ACIC’s primary oversight body is the ACLEI, which was established by the Law Enforcement Integrity Commissioner Act 2006 to prevent, detect and investigate corruption in law enforcement agencies, including the ACIC and the former National Crime Authority where necessary.

Under this Act, our CEO is required to notify the Integrity Commissioner of corruption issues that relate to the ACIC. While the responsibility to notify the commissioner rests with the CEO, the ACIC and ACLEI work collaboratively and cases are discussed to assess whether there should be a notification.

Commonwealth Ombudsman

During 2018–19, the Ombudsman visited the ACIC offices in Brisbane, Sydney and Melbourne to conduct seven inspections.

The ACIC has since received a report on each of those inspections. The reports include issues that were self-disclosed by the ACIC to the Ombudsman during inspections, as well as instances that the Ombudsman identified based on its review of our records. In most of the reports the Ombudsman also expressed satisfaction with the ACIC’s transparency, commitment to compliance measures and remedial action. Reports outlining results from inspections of ACIC records become publicly available once the Minister has tabled them in Parliament.

As part of the ACIC’s Excellence in Compliance Strategy, we maintain a productive relationship with the Ombudsman’s office, and its advice on best practice guides the development of our procedures and training programs.

ANAO and FOI

Australian National Audit Office

During 2018–19, the Australian National Audit Office completed a performance audit on the administration of the Biometric Identification Services project as well as the annual audit of the financial statements.

Freedom of information

As an agency subject to the Freedom of Information Act 1982, we are required to publish information to the public as part of the Information Publication Scheme. That information can be found on our website at www.acic.gov.au/about-us/freedom-information.

Judicial decisions

The ACIC is subject to legal challenge as a normal part of our operations. This may occur in the context of applications in the Federal Court for judicial review under the Administrative Decisions (Judicial Review) Act 1977 or section 39B of the Judiciary Act 1903, or as part of the criminal justice process, such as in contested subpoenas or applications for a stay of criminal proceedings.

In 2018–19, the ACIC was involved in five significant matters, for which we prepared regular reports to the Office of Legal Services Coordination. Two of those matters were also reported on in last year’s annual report.

XXVII v Commonwealth of Australia & Ors

XXVII (a court-ordered pseudonym) was summonsed to attend an examination under the ACC Act. On 15 March 2016, XXVII filed an application for judicial review seeking orders to prevent the examination from proceeding on a number of administrative law grounds. In particular, XXVII challenged the validity of the board’s special investigation, under which XXVII was summonsed, and consequently the summons itself. The matter was heard before Justice Charlesworth.

On 29 March 2017, the court ruled in favour of the ACIC, dismissing the application. Justice Charlesworth found that the application sought to relitigate issues that had been resolved by the decisions in XCIV v ACC & Sage, LX v Commonwealth of Australia and XX v Australian Crime Commission, and upheld the validity of the special investigation.

On 11 April 2017, XXVII filed an appeal against the decision of Justice Charlesworth. The appeal was heard on 22 August 2017, and on 13 April 2018 the Full Court dismissed the appeal. XXVII filed an application for special leave on 11 May 2018. On 12 September 2018, the application was dismissed on the papers.

Galloway v CDPP & Ors; Hodges v CDPP & Ors; Tucker v CDPP & Ors; Strickland v CDPP & Ors

In 2012, six people were charged with various offences. Four of the accused were examined pre-charge by the then Australian Crime Commission on matters in relation to which they were eventually charged. The trial judge ordered a stay of their prosecutions. That stay was overturned on appeal. Special leave to appeal was granted by the High Court.

On 8 November 2018, the court unanimously held that the ACIC had acted unlawfully, on the basis that no special investigation was being conducted under the ACC Act at the relevant time. The majority granted permanent stays of the appellants’ prosecutions.

CCXV v Commonwealth of Australia & Ors

CCXV (a court-ordered pseudonym) was summonsed to attend an examination under the ACC Act. On 3 September 2018, CCXV filed an application for judicial review seeking orders to prevent the examination from proceeding on a number of administrative law grounds. In particular, CCXV challenged the validity of the ACIC Board’s special investigation under which CCXV was summonsed, the summons itself, and the constitutional validity of the provisions in the ACC Act that permit examinations of persons ‘post-charge’.

The matter was resolved before the hearing and on 3 June 2019 Justice White made consent orders dismissing the application.

CXXXVIII v Commonwealth of Australia & Ors

CXXXVIII (a court-ordered pseudonym) was served with a summons to appear before an examiner in furtherance of a special investigation. He was also served with a forthwith notice to produce, at the time and place of service, certain items in his custody and control. The examiner conceded that the summons and notice were ineffectually served, for different reasons. The examiner exercised his powers and issued a fresh summons and a new notice, which were subsequently served on CXXXVIII.

On 27 June 2018, CXXXVIII filed an application for judicial review seeking to challenge the decision to issue the two summonses and two notices served on him. The ACIC conceded that the first notice and the first summons were ineffectually served/deficient, but contended that the second summons and second notice were lawfully and validly issued and served.

The matter was heard in an expedited hearing, and Justice Brown ruled in favour of the respondents on 31 August 2018. On 20 September 2018, CXXXVIII filed an application in the Full Federal Court seeking to appeal the whole of the decision of Justice Brown. His application was unsuccessful.

CXXXVIII has applied to the High Court for special leave in respect of the whole of the Full Federal Court’s judgement. At the time of writing the report the High Court is considering the special leave application.

CXXXVIII v The Honourable Justice Richard Conway White & Ors

An ACIC examiner applied for the issue of a section 31 warrant under the ACC Act. The warrant was issued by Justice White on 8 August 2018. The AFP subsequently executed the warrant and stopped CXXXVIII (a court-ordered pseudonym) from leaving the country.

On 31 December 2018, CXXXVIII filed an application seeking judicial review of the arrest warrant under section 39B of the Judiciary Act 1903. The matter is expected to be listed for hearing in November 2019.

Contempt of the ACIC

ACIC examiners have the power to apply for a witness to be dealt with for contempt of the ACIC in certain circumstances. Those applications are heard in either the Federal Court or the relevant state or territory Supreme Court.

Three contempt proceedings were finalised in 2018–19.

Anderson v GPY18 [2019] FCA 954

On 11 September 2018, GPY18 (a court-ordered pseudonym) was summonsed to appear before an ACIC examiner. GPY18 appeared before the examiner and refused to take the oath or make an affirmation, and contempt proceedings were commenced under section 34A of the ACC Act. GPY18 pleaded guilty to the contempt.

On 21 June 2019, GPY18 was sentenced in the Federal Court to six months immediate imprisonment.

Anderson v DKH18 [2018] FCA 1571

On 6 June 2018, DHK18 (a court-ordered pseudonym) was summonsed to appear before the ACIC examiner. DHK18 appeared before the examiner and refused to answer questions. Contempt proceedings were commenced under section 34A of the ACC Act. On 5 October 2018, DHK18 pleaded guilty to six counts of contempt of the ACIC.

On 19 October 2018, DHK18 was sentenced in the Federal Court to an indefinite period of imprisonment.

Sage v AFL19—Federal Court proceeding VID1660/2018

On 22 June 2018, AFL19 (a court-ordered pseudonym) was summonsed to appear before an ACIC examiner. During the course of the examination, AFL19 refused to answer questions. Contempt proceedings were commenced under section 34A of the ACC Act. The examination was adjourned for mention to 17 December 2018. When the examination commenced, AFL19 purged his contempt and the application was discontinued.

Legislative change

Amendments to the ACC Act

The ACIC is established by the ACC Act. During 2018–19, the ACC Act was amended by the Office of National Intelligence (Consequential and Transitional Provisions) Act 2018, which commenced on 20 December 2018 and amended the ACC Act to facilitate information sharing with the newly established Office of National Intelligence.

Amendments to the ACC Regulations

The Australian Crime Commission Regulations 2018 commenced on 18 December 2018, replacing the Australian Crime Commission Regulations 2002. The new Regulations retained existing provisions but with some updating and revised drafting.

Additional provisions included in the new ACC Regulations were:

• clarification that expressions defined in the ACC Act that contain 'ACC', such as 'ACC information', 'member of the staff of the ACC' and 'Board of the ACC' may also be referred to by replacing 'ACC' with a prescribed alternative acronym; this is intended to facilitate the use of the acronym 'ACIC'
• additional options for the service of summonses, such as electronic service and extensions to the categories of judges to whom the ACIC may apply for a substituted service order to include judges of the Federal Circuit Court
• amendments to the form of section 22 warrants
• the prescribing of additional international bodies, bodies corporate and classes of bodies corporate for the disclosure of ACIC information
• national policing information
  • state and territory working with children screening agencies and court agencies prescribed as agencies that contribute information to a national policing information system for the Working with Children Checks National Reference System and the National Domestic Violence Order Scheme and the Interim Order Reference System, respectively
  • the prescribing of new national policing information systems, namely the National Criminal Intelligence System; the End User Declaration Online System; and the Working with Children Checks National Reference System
• the removal of six national policing information systems to reflect the current systems maintained by the ACIC.