The validity of powers to force suspects in serious criminal investigations and their associates to incriminate themselves is in question after the Australian Criminal Intelligence Commission quietly settled a challenge to its “special investigations”.
Despite a deal between the government and Labor to reinforce the commission’s powers against challenge, in August the ACIC withdrew summonses and notices to produce against one suspected associate of a crime syndicate for fear it would lose a landmark high court case.
The capitulation avoids an unfavourable court ruling but leaves the ACIC at risk that an indeterminate number of past special operations and investigations could be challenged and convictions already secured using the powers could be overturned.
The designation of an investigation as “special” enlivens the ACIC’s coercive powers to force people to produce documents or items or submit to an examination, with penalties of up to five years in prison for failure to attend and answer questions.
According to its 2018-19 annual report, the ACIC has initiated 18 special investigations or special operations since September 2013. Their focus includes high-risk criminal targets, outlaw motorcycle gangs, criminal exploitation of the migration system, firearms trafficking, “high risk and emerging drugs”, and national security impacts from serious and organised crime.
Since 2014, the ACIC has issued 1,990 notices to produce, including 266 in 2018-19, and conducted 1,010 examinations, including 193 in 2018-19.
Special investigations are supposed to be reserved for cases where an investigation has already begun but traditional methods have been exhausted.
Lawyers for targets believe the system is ripe for abuse, with generic determinations of special investigations used to open new investigations and justify coercive powers before other methods have been exhausted.
In December 2019 the home affairs minister, Peter Dutton, convinced Labor to support an urgent bill to retrospectively validate ACIC special investigations, over fears one target – known only as CXXXVIII – was set to win a high court case against the extraordinary powers.
The ACIC believed CXXXVIII was associated with a criminal syndicate and issued him a series of summonses and notices to produce in June 2018, attempting to force him to be interviewed and give documents as part of two “high” and “highest” risk criminal investigations.
CXXXVIII lost a full federal court case challenging the coercive measures in April 2019 but took the matter to the high court, arguing that an investigation must already be under way before the ACIC can designate it a “special investigation”.
On 3 December the shadow home affairs minister, Kristina Keneally, told reporters Labor would support Dutton’s bill to “confirm” the validity of the powers.
“The nature of this legal challenge would, if it were successful, we understand there is a very high likelihood that the legal challenge will be successful, would … leave the ACIC exposed, in terms of its current operations, as well as the validity of convictions based on its previous operations and investigations,” she said.
The bill set out that the ACIC board, composed of police commissioners and other office holders, can approve special investigations if it considers they are “in the public interest”. The board’s decision validates activities even if no investigation had formally commenced before it was made.
It passed with Coalition and Labor support, despite the Greens and independent Rex Patrick warning about the extension of coercive powers.
Patrick told the Senate the government and ACIC had failed to explain “why it is appropriate that an investigation be deemed to exist even if it did not in fact” and “why there might be other cases where this has occurred”.
“The [ACIC] ought to be required to explain the need to validate such conduct in relation to cases which it apparently has in its mind.”
Despite the bill passing, CXXXVIII continued his challenge, arguing parliament cannot greenlight any and all past special investigations because, to be valid, the law’s effect “must be capable of ascertainment”.
He submitted parliament cannot allow the ACIC board to approve orders to summon any person to appear and provide information on “vague, broad and subjective” public interest grounds.
The person will “have no way of knowing or assessing whether the question being asked actually has any connection to any investigation that is actually being conducted”, the appellant argued.
In February, the appeal was supported by an intervener, CXXXVIX, the recipient of another summons who had challenged it in the federal circuit court.
The intervener, represented by Bret Walker SC, submitted that “a fictitious investigation into matters relating to federally relevant criminal activity” does not provide a basis for commonwealth power.
In August, CXXXVIII agreed to discontinue the appeal, in return for the ACIC withdrawing the summonses and notices to produce, and the commonwealth agreeing to pay costs for the entire case. Orders were made on 5 August, closing the case.
Guardian Australia understands that the intervener’s case, listed for a hearing on 11 November in the federal circuit court, is set to be settled along similar lines.
By dropping its attempts to coerce evidence from the appellant and the intervener, the ACIC temporarily avoided a high court ruling on its coercive powers. It is unclear how many other cases might be vulnerable to similar challenges.
The ACIC’s coercive powers have come under successful challenge before. In November 2018 the high court upheld an appeal from six people charged with offences, including four who were examined pre-charge by the then Australian Crime Commission on matters related to the charges.
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, and a majority granted permanent stays of the prosecutions.
The ACIC said it “does not comment on any past or present court matters, or investigations”.
