The Australian Criminal Intelligence Commission’s (ACIC) coercive powers, similar to a Royal Commission, are used for the purposes of the ACIC’s special ACIC operations and special ACIC investigations to obtain information.
Our agency’s coercive powers are one tool that has been effective in collecting information and intelligence to examine structures and links fundamental to organised criminal activity.
This has helped identify and take-action against a range of pervasive criminal threats, which have proved highly resilient to traditional law enforcement methods.
We use our agency’s coercive powers to proactively target the criminal enabling networks and methodologies of organised crime groups and to identify emerging threats and issues.
We also use coercive powers to develop intelligence to inform operational targeting opportunities and contribute to prevention, mitigation, policy and law enforcement decision making.
Our exercise of coercive powers is subject to Division 2 of the ACC Act. The legislative provisions are complex and therefore disclosure and use is considered on a case by case basis through the application of the various provisions. For this reason, there may be many answers to your question. The circumstances will determine when, if and how, examination material is both disclosed and how it can be used.
Safety of people and fair trial of examinees is always paramount in the use and disclosure of examination material. Examinees may face real risk of harm if the fact of their attendance before an examiner and/or the confidentiality of their answers are compromised. The ACC Act contains provisions that emphasise the confidentiality of ACIC examinations (for example, s29A: non-disclosure of service of ACC summons; s25A (3): examination held in private; s25A (9) examiner confidentiality direction).
If, before answering the question or producing the document or thing, the witness claims that the answer, or the production of the document or thing, might tend to incriminate them, then under subsection 30(5) of the ACC Act that answer, document or thing is not admissible in evidence against the witness in a criminal proceeding, a proceeding for the imposition of a penalty or a confiscation proceeding. This protection is known as direct-use immunity. This immunity only applies to self-disclosures.
The ACC Act also includes an overarching secrecy provision which prohibits disclosure of any information held by ACIC, including examination information, except in approved circumstances. Consequently, the ACIC takes seriously the need for confidentiality in relation to its preparation around examinations and the use and disclosure of information arising out of examinations.
If an examiner has made a confidentiality direction any disclosure of information from the examination must be consistent with the terms of the confidentiality direction, the CEO may vary the confidentiality direction in certain circumstances. A breach of a confidentiality direction is an offence. Further restrictions may apply including restrictions on the use of material obtained under mutual assistance, telephone intercept material and public interest considerations. Further restrictions also apply to disclosure of information to a prosecutor of the examinee.
Nicole Mayo
Acting Chief Operating Officer
Australian Criminal Intelligence Commission