Media statement: Coercive powers and APOT strategy

The Australian Criminal Intelligence Commission’s (ACIC) coercive powers, similar to a Royal Commission, are used in special operations and special investigations to obtain information where traditional law enforcement methods are unlikely to be or have not been effective.

The Board of the ACIC authorises, by determination, a special ACIC operation or special ACIC investigation to occur. The Board may only exercise this power when it considers that it is in the public interest. The ACIC’s coercive powers may only be exercised for the purposes of a special ACIC operation or special ACIC investigation. These can be found on our website.

In 2019–20, the ACIC’s special investigations and special operations focused on the eight priority areas of criminal threats affecting Australia, as identified in the ACIC Corporate Plan 2019–20:

  • high-risk criminal targets
  • emerging organised crime threats
  • illicit drugs
  • national security and terrorism
  • criminal gangs
  • financial crime
  • firearms
  • cybercrime

The use of our agency’s coercive powers 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 criminal enterprises, 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 identify emerging threats and issues, and develop intelligence to inform operational targeting opportunities and contribute to prevention, mitigation, policy and law enforcement decision making.

Our coercive powers permit examiners of the ACIC to compel witnesses to answer questions and produce documents or things in relation to particular special ACIC investigations and operations.

Our examiners can also issue notices requiring people to produce documents or things relevant to a special operation or investigation. This power is broad, and may apply to a person, a corporation or a Commonwealth government agency.

Examinations are held in private. Witnesses may claim protection so the answers, documents or things they provide are not admissible in evidence against them in a criminal proceeding to impose a penalty, except in limited circumstances.

A witness is entitled to be represented by a legal practitioner at an examination. It is an offence to refuse to answer questions or give misleading information.

The ACIC takes contempt of its powers seriously and we will not hesitate to seek prosecution of persons summonsed under the Australian Crime Commission Act 2002 (Cth) (the ACC Act) who fail to answer questions or provide misleading or false evidence.

On 3 December 2020, CRA20 (Court appointed pseudonym) was found guilty of contempt of the ACIC in the Federal Court of Australia and has been sentenced to an eight-month term of imprisonment as he refused to answer fourteen questions which an Examiner required him to answer.

When it is lawful to do so, which is more often than not, the agency shares with partners the intelligence products containing discoveries and any understanding gained.
157 examinations were conducted across Australia in 2019–20.

This unique ACIC capability helps to achieve the vision of an Australia hostile to criminal exploitation. With the support of the government, we are committed to enhancing our coercive powers capability as demonstrated by the appointment of 3 new Examiners this year.

The ACIC works very closely with all Commonwealth and State law enforcement, and Home Affairs partner agencies. Where national and regional priorities converge, we seek assistance from the state/territory police to support the conduct of examinations. The Commissioner of Victoria Police is member of the Board of the ACIC, along with all other state police commissioners.

In Victoria, decisions on the type and extent of assistance are generally made at the Joint Management Group level. Examinations conducted in geographical locations other than Victoria invariably provide insight into serious organised crime activities manifesting themselves in Victoria.

ACIC is a member of the Victorian Joint Organised Crime Task Force. The coercive function plays a major part in developing and informing of the intelligence picture to the task forces.

Coercive functions are also used to develop intelligence around the activities of Outlaw Motorcycle Gangs (OMCGs) to inform various task forces such as the Victoria Police Echo task force.

The ACIC conducts examinations of witnesses for its own purposes but the ACC Act contains a number of provisions under which information can be disseminated by the ACIC to other agencies. The most relevant provision is Section 59AA of the ACC Act which provides that the CEO (or delegate) may give information to government agencies, including law enforcement agencies. Any information that is in the ACIC’s possession and that is relevant to the activities of that agency may only be disseminated to the agency if:

  • the ACIC CEO considers it appropriate to do so
  • it is relevant to a permissible purpose
  • it isn’t otherwise contrary to law.

If an examiner has made a confidentiality direction, an application must be made to the ACIC CEO to vary the direction before any information can be published to any person or agency not specified in the direction. 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 may also apply to disclosure of information to a prosecutor of the examinee.

Over the last 12 months, due to COVID-19 and travel restrictions, there has been a decreased number of coercive hearings but this is expected to steadily increase now that restrictions have been lifted.

Ministerial approval to recruit three further Examiners in Melbourne, Brisbane and Perth will enable the ACIC to maximise the unique and unappalled coercive powers bestowed on the ACIC. The coercive powers, including the power to conduct examination of witnesses, set the ACIC apart from traditional police services, and are important tools in the protection of the community from the impact of serious and organised crime

Australian Priority Organisation Target list

The Australian Priority Organisation Target (APOT) strategy is an ACIC-led initiative focused on identifying, assessing, designating and coordinating operational responses to the transnational serious and organised crime targets that pose the greatest threat to Australia’s interests.

  • The intent of the strategy is to improve understanding and facilitate disruption, in collaboration with our domestic and international law enforcement and intelligence partners within local, regional and global contexts, to enhance community safety in Australia.

The APOT list details the top transnational targets that play a significant role within Australia’s serious and organised crime environment. The list is compiled from input from all Board agencies and is collectively reviewed. It is a collaborative effort.

The ACIC has coordinated operational activities with Australian and international partner agencies to cause maximum global and local disruption of APOT networks.

We collaborate with our partner agencies in Australia and overseas through existing policy and engagement mechanisms, and with professional industry bodies to develop prevention and mitigation strategies to reduce the impact of organised crime on the Australian community.

We work with our partners to examine and identify potential or actual convergences between serious and organised crime and other national security matters.

Over the past year, the APOT strategy saw unprecedented levels of cooperation between partner agencies, including those from the law enforcement, national intelligence, regulation and public integrity communities.

In 2019–20, the ACIC assessed a range of targets across the transnational serious and organised crime environment, resulting in the addition of 6 new targets to the APOT list.
The APOT list currently consists of 16 entities of which 14 are located offshore. The entities include individuals as well as domestic threat and high-risk organisations, a financial facilitator network and one cybercrime network.

The bar for entry to the APOT list is getting higher as the approach is refined to ensure the focus is only on the most significant threats facing Australia.

  • For this reason, we are adding only small numbers to the APOT list each year.

Since October 2019, agencies have collaborated on 15 APOT disruption strategies, resulting in the disruption of 5 APOT networks.

At least 2 former APOTs have been disrupted by prosecution action being initiated by overseas law enforcement with ACIC evidentiary evidence.

ACIC contributes to broader joint agency efforts through coercive powers and other unique collections capabilities to shape and inform partners regarding priority targets. ACIC, through coordination of joint agency operational strategies, leverages whole-of-Australian-Government and international partner capabilities for maximum effect and to harden Australia against transnational serious and organised crime threats.

The ACIC is evolving its approach to disrupting APOTs to focus on achieving more significant and longer-term effects and continues to work with partners to disrupt serious and organised crime affecting Australia.

Michael Phelan APM
Chief Executive Officer
Australian Criminal Intelligence Commission