Australian Crime Commission (Criminal Intelligence Assessment) Instrument 2023

EXPLANATORY STATEMENT
 

Issued under subsection 36B(2) of the Australian Crime Commission Act 2002 by the authority of the Chief Executive Officer of the Australian Criminal Intelligence Commission

Purpose and operation of the Instrument

Authority

The Australian Crime Commission (Criminal Intelligence Assessment) Instrument 2023 (the Instrument) is made under subsection 36B(2) of the Australian Crime Commission Act 2002 (the ACC Act) by the Chief Executive Officer (CEO) of the Australian Criminal Intelligence Commission (ACIC). Subsection 36B(2) of the ACC Act provides that the CEO of the ACIC may determine matters relating to the making of criminal intelligence assessments by legislative instrument.

Subsection 36B(3) of the ACC Act provides that the CEO must not make a determination under subsection 36B(2) unless the CEO has consulted the Minister. The Attorney-General was consulted on the Instrument before it was made.

The Instrument is a legislative instrument for the purposes of the Legislation Act 2003.

Purpose

The Instrument outlines matters that must be taken into account, the manner in which those matters are to be taken into account, and matters that are not to be taken into account by the ACIC in relation to the making of criminal intelligence assessments under Division 2A of Part II of the ACC Act.

The ACC Act does not specify the matters that are relevant and not relevant to making a criminal intelligence assessment.

The Instrument is intended to provide guidance to the ACIC when conducting criminal intelligence assessments and will provide transparency to assessment subjects about which matters the CEO considers relevant and not relevant when making criminal intelligence assessments. Given the relatively recent implementation of this function, the Instrument may be updated from time to time to include additional matters considered relevant and not relevant by the CEO and review bodies.

Background

The Instrument relates to the amendments introduced by the Transport Security Amendment (Serious Crime) Act 2021 (the Amendment Act). The Amendment Act amended the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003 to introduce an additional purpose to prevent the use of aviation and maritime transport or offshore facilities in connection to serious crime.

The Amendment Act also amended the ACC Act to provide the ACIC with the function of conducting criminal intelligence assessments for the purpose of the aviation security identification card (ASIC) and maritime security identification card (MSIC) background check.

The introduction of criminal intelligence assessments as an additional element of the background check for ASIC and MSIC applicants is to prevent the infiltration of serious and organised crime and trusted insiders at airports, seaports and offshore facilities. It provides the ACIC with an opportunity to assess whether, based on intelligence and information available to the ACIC, an ASIC or MSIC holder or applicant may commit, or may assist another person to commit serious and organised crime.

Since the commencement of the criminal intelligence assessment function in 2022, the Transport Security Legislation Amendment (Criminal Intelligence Threshold) Regulations 2023 established a threshold that must be met for the eligibility of an ASIC or MSIC.

Specifically, if the ACIC issues an adverse criminal intelligence assessment, that indicates the person issuing the assessment reasonably believes that preventing the person proposed to be issued an ASIC or MSIC from holding an ASIC or MSIC is necessary or desirable to prevent the use of aviation, or maritime transport or an offshore facility, respectively, in connection with serious crime. Where this occurs, an ASIC or MSIC cannot be issued or must be cancelled.

Consultation

Subsection 36B(3) of the ACC Act provides that the CEO must not make an instrument unless the CEO has consulted the relevant Minister on the Instrument before it can be made. In accordance with the legislation, the Attorney-General was consulted on the Instrument before it was made.

Further consultation with the Attorney-General’s Department and the Department of Home Affairs was undertaken on the drafting and content of the Instrument to ensure that it is consistent with the provisions in the ACC Act, the policy underpinning criminal intelligence assessments, the Amendment Act and the Transport Security Legislation Amendment (Criminal Intelligence Threshold) Regulations 2023.

This consultation satisfies the requirements under section 17 of the Legislation Act 2003.

Regulation Impact Statement

An Impact Analysis is not required for this instrument. Office of Impact Analysis ID: OIA23-04941.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Overview of the instrument

The Australian Crime Commission (Criminal Intelligence Assessment) Instrument 2023 (the Instrument) outlines matters that must be taken into account, the manner in which those matters are to be taken into account, and matters that are not to be taken into account by the ACIC in relation to the making of criminal intelligence assessments under Division 2A of Part II of the Australian Crime Commission Act 2022 (ACC Act).

The Instrument relates to the amendments introduced by the Transport Security Amendment (Serious Crime) Act 2021 (the Amendment Act). The Amendment Act amended the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003  to introduce an additional purpose to prevent the use of aviation and maritime transport or offshore facilities in connection to serious crime.

The Amendment Act also amended the ACC Act to provide the ACIC with the function of conducting criminal intelligence assessments for the purpose of the aviation security identification card (ASIC) and maritime security identification card (MSIC) background check.

The introduction of criminal intelligence assessments as an additional element of the background check for ASIC and MSIC applicants is to prevent the infiltration of serious and organised crime and trusted insiders at airports, seaports and offshore facilities. It provides the ACIC with an opportunity to assess whether, based on intelligence and information available to the ACIC, an ASIC or MSIC holder or applicant may commit, or may assist another person to commit serious and organised crime.

Since the commencement of criminal intelligence assessment function in 2022, the Transport Security Legislation Amendment (Criminal Intelligence Threshold) Regulations 2023 established a threshold that must be met for the eligibility of an ASIC or MSIC.

Specifically, if the ACIC issues an adverse criminal intelligence assessment, that indicates the person issuing the assessment reasonably believes that preventing the person proposed to be issued an ASIC or MSIC from holding an ASIC or MSIC is necessary or desirable to prevent the use of aviation, or maritime transport or an offshore facility, respectively, in connection with serious crime. Where this occurs, an ASIC or MSIC cannot be issued or must be cancelled..

The Instrument is intended to provide guidance to the ACIC when conducting criminal intelligence assessments and will provide transparency to assessment subjects about which matters the CEO considers relevant and not relevant when making criminal intelligence assessments. Given the relatively recent implementation of this function, the Instrument may be updated from time to time to include additional matters considered relevant and not relevant by the CEO and review bodies.

Human rights implications

The Instrument engages the following rights:

• the right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR),
• the right to freedom from discrimination under Article 2(2) of the ICESCR and Article 26 of the International Covenant on Civil and Political Rights (ICCPR),
• the right to an effective remedy and right to justice and a fair trial in Articles 2(3) and 14 of the ICCPR, and
• the right of every person to be protected against arbitrary or unlawful interference with his privacy in Article 17 of the ICCPR.

Right to work and freedom from discrimination

Article 6(1) of the ICESCR provides that the right to work includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept, allowing them to live in dignity. The right to work does not equate to a guarantee to particular employment. 

The United Nations Committee on Economic Social and Cultural Rights (the UN Committee) recognises that the right to work in Article 6 does not equate to a guarantee of full employment. The UN Committee recognises the existence of international factors beyond the control of countries, which may hinder the full employment of the right to work in many countries (for example, transnational, serious and organised crime). The Committee has stated that the right to work affirms the obligation of States parties to assure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly.

Article 2(2) of the ICESCR provides that rights should be exercised without discrimination of any kind, and Article 26 of the ICCPR provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. The UN Human Rights Committee has observed that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective, and for a legitimate purpose.

The Government is committed to act in accordance with the right to work in Article 6 of the ICESCR and the right to non-discrimination in Article 26 of the ICCPR. The Instrument engages the right to work and right to non-discrimination, insofar as these rights are engaged by the criminal intelligence assessment capability that was introduced by the Amendment Act. The Amendment Act provides that a consequence of an adverse criminal intelligence assessment is that an issuing body is required to refuse an application for and ASIC or MSIC, or cancel an existing ASIC or MSIC. This may result in an applicant being denied employment in certain jobs that require a person to hold an ASIC or MSIC.

As also provided in the Amendment Act’s Statement of Compatibility, the limitations on the right to work and right to non-discrimination are reasonable and necessary to limit the influence of serious criminal activity in the aviation and maritime or offshore facilities environments. A criminal intelligence assessment is on the basis of a person’s criminal history or likely criminal involvement and the reasonable belief that this intelligence information may have implications for the person’s employment in security sensitive areas. Given the significant impact that serious crime (in particular the sale of illicit drugs) has on the economic and social prosperity of Australia, the limitations are reasonable, necessary and proportionate to prevent Australia’s security controlled airports, security regulated ports, and security regulated offshore facilities from being used in conjunction with serious crime. Additionally, the limitations on the right to work and right to non-discrimination is also the least rights restrictive as it only prevents a person from working in these highly sensitive environments.

Right to an effective remedy and right to justice and a fair trial

The right to an effective remedy in Article 2(3) of the ICCPR and the right to justice and a fair trial in Article 14 of the ICCPR are both engaged by the policy underpinning the Instrument. The ACC Act engages the right to an effective remedy by providing for the review of an adverse criminal intelligence assessment by the Administrative Appeals Tribunal, and promotes the rights in Article 14 of the ICCPR by ensuring that a person can seek review of an adverse criminal intelligence assessment and is equal before the Tribunal in relation to such a review.

Right to privacy

Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual’s privacy, which is engaged by the policy underpinning criminal intelligence assessments. In order for an ASIC or MSIC to be cancelled, an issuing body must be notified that an adverse criminal intelligence assessment has been provided to the Secretary of the Department of Home Affairs. The right to privacy is only limited to the extent that the issuing body is told of the existence of the adverse criminal intelligence assessment, and not the details of that assessment. This limitation is necessary to prevent a person assessed to have an adverse criminal intelligence assessment from having access to secure areas of airports, seaports and offshore facilities.

The Instrument is intended to provide further transparency to assessment subjects on what matters will be taken into account as part of the criminal intelligence assessment, promoting good privacy and transparency practices.

Conclusion

The Instrument engages human rights, however this is only insofar as they are engaged by the policy underpinning criminal intelligence assessments. To the extent this policy may limit human rights, those limitations are reasonable, necessary and proportionate to achieving a legitimate objective. The Instrument also provides transparency to assessment subjects about which matters the ACIC CEO considers relevant and not relevant when making a criminal intelligence assessment.

Attachment A

NOTES ON SECTIONS

Section 1 – Name

Section 1 provides that the title of the instrument is the Australian Crime Commission (Criminal Intelligence Assessment) Instrument 2023 (the Instrument).

Section 2 – Commencement

The Instrument commences on the day after the Instrument is registered.

Section 3 – Authority

The Instrument is made under subsection 36B(2) of the Australian Crime Commission Act 2002 (the ACC Act).

Section 4 - Definitions

Section 4 provides that a number of expressions used in the Instrument are defined in the definitions section of the ACC Act, including:

• adverse criminal intelligence assessment
• criminal intelligence assessment
• prescribed administrative action, and
• serious and organised crime.

Transport security card is an aviation security identification card (ASIC) or maritime security identification card (MSIC) as defined in the Aviation Transport Security Regulations 2005 and Maritime Transport and Offshore Facilities Security Regulations 2003 respectively.

Section 4 defines an assessment subject to be the person who is the subject of a criminal intelligence assessment.

Section 5 – Instrument application

Section 5 provides for when the contents of the Instrument will be applicable, which is where the Australian Criminal Intelligence Commission (ACIC) has information which raises the question of whether it is necessary or desirable for prescribed administrative action to be taken in respect of the assessment subject.

An example of prescribed administrative action would be preventing an assessment subject from being an ASIC or MSIC holder due to the threat they may present to aviation, maritime transport or offshore facilities because the individual may commit a serious and organised crime or will assist another person to commit a serious and organised crime consistent with the Transport Security Legislation Amendment (Criminal Intelligence Threshold) Regulations 2023.

Item 6 – Matters to be taken into account

Section 6 provides a non-exhaustive list of matters to be taken into account by the ACIC when conducting criminal intelligence assessments under the ACC Act at subsection 6(1). The types of matters include:

• the nature of the relevant prescribed administrative action;
• intelligence or information available to the ACIC relevant to whether the assessment subject may commit, or assist another person to commit a serious and organised crime; and
• the extent to which the criminal intelligence assessment would prevent the use of aviation and maritime transport or offshore facilities in connection with serious crime.

Further guidance on the intelligence or information available to the ACIC that may be relevant in conducting a criminal intelligence assessment is provided for at subsection 6(2). This subsection is intended to provide certainty, for both an assessment subject and the ACIC, with regards to considerations of relevance, origin and nature of the available intelligence or information.

Subsection 6(2) clarifies that:

• information or intelligence should be directly, indirectly or circumstantially relevant to the assessment subject and to the use of aviation, or maritime or offshore facilities, in connection with serious and organised crime.
• the nature and origin of the information that is relied upon should be considered carefully – in particular, frivolous or vexatious complaints are not sufficient to suggest the assessment subject may commit, or assist another person to commit a serious crime.
• incidental contact, or a passive association based on family connections to an individual or individuals suspected of being involved in serious and organised crime is not, of itself, sufficient to conclude the assessment subject may commit, or assist another person to commit a serious and organised crime.
• in some cases, close or regular contact with individuals suspected of being involved in serious and organised crime may be sufficient to suggest that the assessment subject may commit, or assist another person to commit a serious and organised crime.

Section 6 provides assurance to assessment subjects and the ACIC that criminal intelligence assessment will be conducted by the ACIC in a way that is consistent and proportionate.

Section 7 – Manner in which matters in section 6 are to be taken into account

Section 7 further clarifies the manner in which matters in section 6 are to be taken into account by the ACIC when making a criminal intelligence assessment. This clarification provides further guidance to the ACIC and assurance to assessment subjects that the criminal intelligence assessments are consistent and fair.

Subsection 7(1) requires the ACIC to have regard to the requirements of procedural fairness and the reliability of the information available about the assessment subject. Procedural fairness is a core value in administrative decision making, such as the conduct of a criminal intelligence assessment.

Subsection 7(2) specifically provides for each requirement of procedural fairness that should be considered by the ACIC. These include that:

• adverse criminal intelligence assessments are to be made in good faith, and without bias.
• the reasons for the adverse criminal intelligence assessment are to be recorded in a statement of grounds.
• the criminal intelligence assessment process is to be as fair and transparent as the proper protection of law enforcement and security interests allow and taking account of the protective elements of Division 2A of Part II of the ACC Act.

Subsection 7(3) clarifies the second part of subsection 7(1), the reliability of the information available, by providing that matters affecting the reliability of information include:

• the credibility, nature and authenticity of the relevant facts, information and sources,
• the currency of the information, and
• whether or not the information has been corroborated.

Section 8 – Matters not to be taken into account

Section 8 provides guidance to the ACIC and assurance to assessment subjects on what matters will not be taken into account by the ACIC when making a criminal intelligence assessment. This section further confirms the consistency and fairness of the criminal intelligence assessment process.

Subsection 8(1) provides that matters that are not to be taken into account by the ACIC when conducting criminal intelligence assessments are:

• information containing a legislative restriction preventing its use in a criminal intelligence assessment, and
• in relation to a transport security card (as defined in section 4 of the Instrument), the access level signified by the colour or type of transport security card the assessment subject holds or has applied for.

The note on section 8 clarifies that the access level of a transport security card should not be taken into account because the card itself is evidence of a successful background check, regardless of the access, type or colour of the card.