Labor and the Coalition teamed up to pass a bill retrospectively authorising potentially “unlawful” use of material gathered in special investigations by Australia’s most secretive law enforcement agency.
The bill is the third attempt to cure a long-running legal defect in the powers of the Australian Criminal Intelligence Commission (ACIC) to conduct special investigations and operations.
The bill, which was introduced on Tuesday and passed the Senate on Friday, was cited by the opposition leader, Peter Dutton, as an example of bipartisan cooperation during fierce political arguments on the unrelated issue of releases from indefinite detention.
But Greens senator David Shoebridge told the Senate the “only credible” explanation for the bill’s urgency was if a decade’s worth of “covert warrants and surveillance is likely to have been found to be unlawful and therefore won’t stand up in court”.
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.
The focus of such investigations includes high-risk criminal targets, outlawed motorcycle gangs, criminal exploitation of the migration system, firearms trafficking, “high risk and emerging drugs”, and national security impacts from serious and organised crime.
In December 2019 the then home affairs minister, Peter Dutton, convinced Labor to support an urgent bill to retrospectively validate ACIC special investigations, over fears one target was set to win a high court case against the extraordinary powers.
In November 2022, the Albanese government passed a second bill to “provide greater certainty” about the ACIC board’s powers to authorise special operations and investigations.
In the House of Representatives the Greens leader, Adam Bandt, said that passing retrospective legislation was “very serious” and queried “has a government agency been acting in a way that is potentially unlawful?”.
The attorney general, Mark Dreyfus, said the bill ensured the ACIC “can continue to undertake its vital statutory function to combat serious and organised crime in Australia and keep the Australian community safe”.
Amendments for “vital statutory functions” were “standard practice”, he said in reply to Bandt.
In the Senate, Shoebridge said the bill appeared designed “to protect past illegal activities by these agencies, because there is no other explanation for the rush”.
“The only credible urgency is that they know the activities were illegal, and they’ve probably been illegal for a decade, and a whole bunch of covert warrants and surveillance is likely to have been found to be unlawful and therefore won’t stand up in court,” he said.
According to the ACIC’s 2022-23 annual report, in March 2023 it withdrew a summons for a person to appear before an ACIC examiner when the person, known by the pseudonym DCL22, raised “constitutional grounds” in a full federal court appeal.
In February 2023 high court proceedings in a separate case were discontinued by consent, after a plaintiff known as JAM “raised constitutional issues” relating to charges that appeared on his Australian federal police-issued police check.
In September 2020 Guardian Australia revealed several other instances of the ACIC quietly settling cases or withdrawing notices when the legality of its powers was challenged.
A spokesperson for Dreyfus told Guardian Australia that “consistent with the practice of successive governments, it is necessary for the government to take steps to ensure that agencies can continue to discharge their core functions”.
“This bill does not expand ACIC’s powers.”
On 14 November, Dutton said the Coalition would support the bill “in relation to an issue around” the ACIC.
“Those bills pop up all the time to address quirky outcomes that the courts provide for, decisions that we can’t really agree with or understand, but you can patch it up with a change to the law,” Dutton told 2GB Radio.
The shadow attorney general, Michaelia Cash, told the Senate the bill followed “changes commenced under the former Coalition government and continued by Labor in government”.
She said it would “preserve the status quo and ensure that there is no legal doubt about decision-making processes undertaken by the ACIC so it can continue to combat serious and organised crime”.
In a statement on Tuesday, an ACIC spokesperson said the ACIC “takes its legal and compliance responsibilities seriously”.
“The ACIC does not comment publicly regarding exchanges of intelligence and information with its partner agencies. This is especially the case for matters that may be before the courts.”
