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External scrutiny

As at 30 June 2018, the ACIC was part of the Home Affairs Portfolio and accountable to the Minister for Home Affairs, who was also the Minister for Immigration and Border Protection.

Our external scrutiny also includes the ACIC Board, the Inter-Governmental Committee consisting of the Minister for Home Affairs and police ministers of each state and territory, and the Parliamentary Joint Committee on Law Enforcement.

Due to the nature of our business, we operate in a contested environment and are often 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.

ACIC EXTERNAL ACCOUNTABILITY AS AT 30 JUNE 2018

HOME AFFAIRS PORTFOLIO

On 18 July 2017, the Prime Minister announced the establishment of the Home Affairs Portfolio, consolidating Australia’s federal law enforcement, national and transport security, criminal justice, emergency management, multicultural affairs, immigration and border-related functions to more effectively shape the security and prosperity of the nation.

The Home Affairs Portfolio officially commenced on 20 December 2017, with the Department of Home Affairs as the central policy department.

MINISTERIAL ARRANGEMENTS

As at 30 June 2018, the Home Affairs Portfolio included the following ministers:

  • Minister for Home Affairs and Minister for Immigration and Border Protection, the Hon. Peter Dutton MP
  • Minister for Citizenship and Minister for Multicultural Affairs, the Hon. Alan Tudge MP
  • Minister for Law Enforcement and Cyber Security, the Hon. Angus Taylor MP
  • Assistant Minister for Home Affairs, the Hon. Alex Hawke MP.

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

PARLIAMENTARY COMMITTEES

Each year we contribute to various parliamentary inquiries affecting national law enforcement capability and activities. For details of this year’s contributions, see pages 63–66.

In addition this year we were called on to appear before the Senate Legal and Constitutional Affairs Legislation Committee at Senate Estimates hearings on 24 October 2017 and 23 May 2018. Transcripts of the proceedings and responses to questions on notice are available on the committee website.

PARLIAMENTARY JOINT COMMITTEE ON LAW ENFORCEMENT

At the time of reporting, 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.

As at 30 June 2018, the members of the Parliamentary Joint Committee on Law Enforcement 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 Parliamentary Joint Committee on Law Enforcement are:

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

INTER-GOVERNMENTAL COMMITTEE

The Inter-Governmental Committee (IGC) is established under section 8 of the ACC Act. The IGC monitors our work, and strategic direction and work of the ACIC Board, including the use of coercive powers. Under certain circumstances the IGC has the authority to revoke a Board determination.

The IGC comprises the Commonwealth 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.

The IGC has the following functions:

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

As at 30 June 2018, the members were:

  • the Hon. Peter Dutton MP (Minister for Home Affairs) (Chair)
  • the Hon. Troy Grant 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. Michael Gunner MLA (Northern Territory until 26 June 2018)
  • the Hon. Nicole Manison MLA (Northern Territory from 26 June 2018)
  • 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, setting strategic priorities for the ACIC and approving the use of the ACIC’s special coercive powers. The Board is also responsible for determining the ACIC’s special operations and special investigations.

In setting the ACIC’s strategic direction, the Board is able to fuse together state, territory and Commonwealth 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 assessing the overall performance of key areas of ACIC work. The Board also plays an active role in addressing strategic issues faced by the ACIC and in authorising or identifying key areas of new work that we should pursue.

As at 30 June 2018, the Board comprised:

  • 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, Taxation of the Australian Taxation Office
  • Commissioners, all state police forces and the Northern Territory Police Force, and Chief Police Officer, ACT Policing
  • CEO, ACIC (as a non-voting member).

The CEO of the Australian Transaction Reports and Analysis Centre 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 practicable after 30 June and fulfils the reporting requirements of the ACC Act.

BOARD DECISIONS AND CONSIDERATIONS

The following table lists Board authorisations as at 30 June 2018.

ACIC BOARD AUTHORISATIONS 2017–18

DETERMINATION

TYPE

ESTABLISHED

Vestigo Task Force

Task Force

Established 30 November 2016

Cyber-Related Offending No. 2

Special Operation

Established 13 June 2018

Firearm Trafficking No. 2

Special Operation

Established 13 June 2018

High Risk and Emerging Drugs No. 4

Special Operation

Established 13 June 2018

National Security Impacts from Serious and Organised Crime No. 3

Special Operation

Established 13 June 2018

Outlaw Motor Cycle Gangs No. 2

Special Operation

Established 13 June 2018

Highest Risk Criminal Targets No. 3

Special Investigation

Established 13 June 2018

Targeting Criminal Wealth No. 3

Special Investigation

Established 13 June 2018

Criminal Exploitation of Australia’s Migration System No. 2

Special Operation

Established 13 June 2018

Emerging Organised Crime Threats No. 3

Special Operation

Established 13 June 2018

National Task Force Morpheus

Task Force

Established 1 July 2014

NCIS Task Force

Task Force

Established 13 June 2018

In addition, in 2017–18 the Board:

  • endorsed the ACIC Strategic Plan 2018–23
  • reviewed ACIC strategic priority areas and the planned activity and response to the threats identified under our special investigations and special operations
  • considered arrangements for NCIS
  • approved an extension of the pilot for the Enhanced Biometrics at the Border project
  • noted that the Australian Cyber Security Centre is developing a website (cyber.gov.au) and that the functions of the ACORN could be included in this website
  • approved the ACIC’s revised External Governance and Engagement Model (see page 168)
  • noted prioritisation of ICT projects to ensure delivery on key priorities
  • agreed to progress further work on key recommendations in the Independent Review of the ACC Act, which presents an opportunity to ensure the ACIC has the necessary powers to support our investigative and intelligence functions
  • received briefings on outcomes from the National Criminal Intelligence Capability Committee, Law Enforcement Information Services Capability Committee, Technology Capability Committee, and Serious and Organised Crime Coordination Committee.

During the reporting year, the Board farewelled Commissioner Roman Quaedvlieg, Australian Border Force, who commenced his appointment in 2015, and Mr Greg Medcraft, ASIC Chairman, who commenced his appointment in 2009.

BOARD-ENDORSED EXTERNAL GOVERNANCE AND ENGAGEMENT MODEL

Following the establishment of the ACIC, the Board endorsed external governance arrangements to support the ACIC Board and effective operation of the ACIC. Endorsed by the Board on 30 November 2016, these arrangements include external engagement bodies comprising representatives from Board member agencies.

  • 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 a 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 we deliver for Australia’s police, wider law enforcement and national security agencies.
  • Serious and Organised Crime Coordination Committee—This committee supports prioritisation, endorsement and coordination of operational strategies for dealing with serious and organised crime investigations, targets and threats at a national level.

It was agreed the model would be reviewed following 12 months of operation. In 2017, we undertook a review that explored whether the existing model, through the capability committees, provides adequate and appropriate advice to the Board and ACIC Executive.

On 13 June 2018, the Board endorsed changes to the model including:

  • endorsing the Law Enforcement Information Systems and Services Capability Committee, National Criminal Intelligence Capability Committee and Technology Capability Committee formally reporting to the CEO from 1 July 2018, in accordance with the CEO’s functions as prescribed under the ACC Act
  • endorsing the Serious Organised Crime Capability Committee no longer reporting to the ACIC and Board from 1 July 2018
  • noting the decision of Australian and New Zealand Police Commissioners Forum that the Serious Organised Crime Capability Committee will report to the Deputy Commissioners’ Operational Management Meeting. The revised model transfers the Serious and Organised Crime Coordination Committee to a more appropriate body charged with responsibility for serious organised crime operations.

AUSTRALIAN COMMISSION FOR LAW ENFORCEMENT INTEGRITY

This is the ACIC’s primary oversight body. It was established in 2006 through the enactment of the Law Enforcement Integrity Commissioner Act 2006 to prevent, detect and investigate corruption issues in a number of 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 Integrity 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

The Commonwealth Ombudsman inspects ACIC records associated with the agency’s conduct of controlled operations, use of surveillance devices and telecommunications interception, and access to telecommunications data.

During 2017–18 the Ombudsman visited ACIC offices in Brisbane, Sydney and Melbourne to conduct seven inspections. The ACIC has since received a report on each of these inspections. The reports include issues that are self-disclosed by the ACIC to the Ombudsman during inspections, as well as instances the Ombudsman has 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, the agency maintains a productive relationship with the Ombudsman’s office, and its advice on best practice guides the development of our procedures and training programs.

AUSTRALIAN NATIONAL AUDIT OFFICE

In 2017–18 the Australian National Audit Office commenced the performance audit ‘The Australian Criminal Intelligence Commission’s administration of the Biometric Identification Services project’. The performance audit was initiated at the request of the ACIC.

FREEDOM OF INFORMATION

The ACIC is subject to the Freedom of Information Act 1982 (FOI Act). Agencies subject to the FOI Act are required to publish information to the public as part of the Information Publication Scheme. The requirement is in Part II of the FOI Act and replaces the former requirement to publish a section 8 statement in an annual report. Each agency must display on its website a plan showing what information it publishes in accordance with the Information Publication Scheme requirements. This information can be found on the ACIC’s website at <www.acic.gov.au/publications/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 a contested subpoena or application for a stay of criminal proceedings.

In 2017–18 we were involved in two significant matters, which we also reported on last year. The first was a judicial review application that sought to challenge the breadth of a Board determination and a decision of an Examiner to issue a summons under that determination. This is now the subject of an application for special leave to the High Court. The second was a High Court appeal where the ACIC sought leave to intervene.

XXVII V COMMONWEALTH OF AUSTRALIA & ORS

XXVII was summonsed to attend an examination under the ACC Act, but sought orders to prevent the examination from proceeding on a number of administrative law grounds. In particular, XXVII challenged the validity of the Board’s determination under which XXVII was summonsed (Highest Risk Criminal Targets No. 2 Special Investigation determination), and consequently the summons itself. The matter was heard before Justice Charlesworth in the Federal Court (Adelaide).

On 29 March 2017, the Court ruled in favour of the ACIC, dismissing the application. Justice Charlesworth found that the application sought to re-litigate issues that had been resolved by the decisions in XCIV v Australian Crime Commission & Sage, LX v Commonwealth of Australia, and XX v Australian Crime Commission and upheld the validity of the Highest Risk Criminal Targets No. 2 Special Investigation determination.

On 11 April 2017, XXVII filed an appeal against the decision of Charlesworth J. The appeal was heard on 22 August 2017 and the Full Court’s judgment was delivered on 13 April 2018, dismissing that appeal. At the time of writing, the matter was the subject of an application for special leave to the High Court, which was yet to be determined.

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 by the then ACC before they were charged, with the examinations covering 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 and the ACIC filed notices of contention in May 2018.

The appeals were heard by the High Court on 8 and 9 May 2018. Judgment was reserved.

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. These applications are heard in either the Federal Court or relevant state or territory Supreme Court.

No contempt proceedings were finalised in 2017–18.

LEGISLATIVE CHANGE

AMENDMENTS TO THE ACC ACT AND REGULATIONS

The ACIC is established pursuant to the Australian Crime Commission Act 2002 (ACC Act). The following amendments were made to the ACC Act during the reporting period:

  • The Home Affairs and Integrity Agencies Legislation Amendment Act 2018 dealt with consequential matters arising from the establishment of the Home Affairs Portfolio, including clarifying references in the ACC Act to the Attorney-General.
  • The Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018 amended legislation relating to the criminal law, law enforcement and background checking. This included clarifying 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’.

There were no changes made to the Australian Crime Commission Regulations 2002 or the Australian Crime Commission (National Policing Information Charges) determination 2016 during the reporting period. However, the life of the Regulations was extended to 1 April 2019 by the Legislation (Deferral of Sunsetting—Australian Crime Commission Regulations) Certificate 2017, made under the Legislation Act 2003.

 

 

26 The total staff figure of 791 includes 18 staff from the AIC.

Last updated
7 December 2018