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Parliamentary Joint Committee on Law Enforcement
21/09/2012
Gathering and use of criminal intelligence

KLUGMAN, Dr Kristine Kay, President, Civil Liberties Australia

ROWLINGS, Mr William Murray (Bill), Chief Executive Officer, Civil Liberties Australia

[9:18]

CHAIR: Welcome and welcome back, Mr Rowlings, and we appreciate your contribution to previous inquiries and we look forward to talking to you again. I invite you to make a short opening statement then my colleagues will ask questions.

Mr Rowlings : We would like to, without going over our submission in detail because I am sure you will ask questions on that, point out what has happened over the past 11 years since 9/11.

Since then there has been a real mushrooming of legislation on counterterrorism particularly, but allied to that has been a mushrooming of powers, increased powers to police and security agencies, which have gone along with a mood and a culture in the community to grant those extra powers. Those powers are overlapped to quite a significant extent. For example, in terms of financial reporting and so on, there are clear overlaps between terrorism interests and crime organisation interests. This trend has been in place for that period.

While that has been happening—concentrating now on the Australian Crime Commission—what the Crime Commission does has been changing. It was set up to be a body that looked at organised crime in a large extent, found out the evidence, charged people and put them before the courts, but it is largely morphing into an intelligence agency. It has been identified not only by us but by others, particularly, that it is in fact turning into an intelligence agency rather than a crime commission, and that is becoming its core role. The questions that Senator Parry asked are very appropriate to see where that is going and whether it should be continuing in that direction.

These are some of the issues that I think need to be addressed. To some extent we have addressed them in our submission. Part of this is that you need to judge the expertise, for example, which is one of the brief requests of the ACC, based on what it has done. With most government agencies, particularly new ones, it takes about seven to 15 years for whether they are doing well or badly to come to light, because there is stuff in train and all the rest of it. So I think it is interesting to look at what the Australian Crime Commission's results have been in recent times, and we can do that.

What we would say overall is that there are currently four reviews underway, basically into terrorism legislation. One of them is a COAG review into counterterrorism laws and whether we need them. We suggest, and propose that this committee recommends, that there be a similar review—a COAG review, if you like, but an overall review—into the countercrime legislation that has gone along with the counterterrorism legislation over the past 11 years, to work out where there are overlaps, and there certainly are overlaps, and to look also at the agencies that are implementing that legislation and at where there are overlaps. And there clearly are overlaps in the area of intelligence, as Senator Parry has identified. We think that now is the time, after that period, to look at all of that, and we suggest that this committee recommends along those lines.

The other thing that we believe is that most of the legislation that has occurred over the last 11 years started with the impetus of 9/11, which was a panic response to a major terrorism incident, and it was completely understandable that some of it went over the top. That is reasonable in the circumstances. But it was always: 'How are we going to give more powers to police and security agencies?' We never looked at what the rights, the human rights and the civil liberties of Australians are. What is the baseline that we look at against which we give increased powers to police and security agencies? We believe that that is very necessary, and that is a foundation step before you can review counterterrorism legislation or the increased crime legislation that has come in.

We have suggested to the Parliamentary Joint Committee on Human Rights that it takes all the conventions, treaties and common law that we have in this country and establishes a set of principles or rights against which we can measure legislation. We suggest to you that it would be a good recommendation from this committee that that be done. At the moment, when we look at all these things, we have nothing against which to measure what the rights are that have been abrogated or taken over by the various laws that we have in counterterrorism and anticrime. So in general that is our approach.

CHAIR: Could I just pick up on a part of the discourse that we had when you last contributed to the committee. I invite your view on it. I think there were words to the effect that victims of crime have their liberties impacted by criminal organisations or criminals. I think you were talking to the committee at that stage about how you get that balance right as opposed to simply a general philosophical statement about civil liberties and also the liberties affected, particularly of victims of crime.

Mr Rowlings : That is the issue that we are driving at: nowhere is that spelt out. In Australia we know that we have a good society; we live in an open, traditional, rule-of-law society. But that has been changed by what has happened particularly over the past 11 years. We have never actually sat down and spelt it out. We had the opportunity to do so by creating a bill of rights, and for whatever reason that has not proceeded. What we are saying is that we cannot spell out exactly what those things are. It is always a balance. All of this is a balance between the laws and the rights of individuals to be individuals. Until we sort out what that baseline is, until we get some handle on that, we cannot answer questions like that.

CHAIR: Would you see the protection of individuals as going to not waiting until a crime has been committed and there is a victim of the crime but protecting society and therefore protecting individuals within that society?

Mr Rowlings : I am not sure what the question is, but all laws are really there to protect the individuals and the society.

CHAIR: Not necessarily. If you look at the criminal laws, they are to prosecute people who commit a crime.

Mr Rowlings : Yes, but they are there to protect the society from those crimes, from people committing crimes. That is what they are for.

CHAIR: Part of that, I would have thought, is gathering appropriate intelligence not simply to detect the crime but to prevent or disrupt criminal activity as well?

Mr Rowlings : No, in terms of legislation and following the laws, it is to gather evidence to prosecute the crime.

CHAIR: When the crime has been committed?

Mr Rowlings : That is right.

CHAIR: And, after the crime has been committed, what naturally follows is that there are victims of crime in the first place—

Mr Rowlings : Right.

CHAIR: So we should not sit back and wait for a criminal activity to affect the liberties of an individual who becomes a victim of a crime before we do something about it? Should we within society be protecting the liberties of those individuals by protecting the community?

Mr Rowlings : If possible, certainly. That is certainly the case. But—

CHAIR: How do you weigh that in terms of—

Mr Rowlings : It is very difficult to weigh, but some of the examples were given by the Australian Federal Police Association—the man in Karratha. That was not an intelligence issue; it was sharing of factual evidence. This man was wanted for a particular crime. That is not intelligence; that is just a problem of a database in Victoria not communicating with a database in Karratha.

CHAIR: Silo. Yes, precisely.

Mr Rowlings : Exactly, so that is not an intelligence issue, and that can be solved easily, I would have thought, by mechanical means. We all want to protect the front-line police. Where there is factual evidence, there is no problem with sharing it. Where it becomes a problem is more at the higher level where intelligence is used against individuals when they do not know it is being used. Let me just point out what 'intelligence' is. It is not evidence. If it were evidence, it would be called evidence, but it is not, so 'intelligence' is a broad sweep of information, guess, speculation, scuttlebutt, gossip, suspicion and hypothesis. That is what 'intelligence' is.

CHAIR: I suspect that is belittling intelligence. I think that, if you look at and read the public submissions that there have been so far, there is information, but, in terms of analysed intelligence in intelligence reports, I do not think you could put that down to being scuttlebutt.

Mr Rowlings : Well, we do not know what is in there. We do not know on what basis—how do you measure whether the information that has gone into that process of putting intelligence against an individual is accurate? There is no way anywhere. There are no checks and balances in the system.

One of the other things we are suggesting is that there be a public, lay, monitoring committee that has audit processes and that can, four times a year, take random samples of what is held on particular individuals to check the accuracy of it, because there is no system of checking accuracy wherever, anywhere in the system.

Dr Klugman : One of the disturbing things, I think in the last time we appeared before you, was when Mr Lawler from the ACC was questioned about whether, if an individual went into a hotel where it was known that there were crime bosses meeting, that individual could be reported for having gone into the hotel, and Mr Lawler said, 'Oh, yes, we'd report that.' That to me is extraordinarily disturbing. The man might have been going in there to meet a friend, to go to the toilet or to do anything. To have that guilt by association just because of the fact that he went into a hotel, and for the head of the ACC to make that sort of statement, to me is extraordinarily disturbing.

Mr Rowlings : More disturbing was how, when he was asked for an example of how he would report to a corporate entity—this is where powers were given to the ACC recently to exchange information with corporate entities and politicians and he gave this example himself—he would report to the head of the bank that his senior manager and employee did this, went into this place. Just the fact that he had gone into the building where these people were was what he said would be reported. That is scuttlebutt; that is gossip.

CHAIR: Unlike most other agencies, other than the Australian Federal Police, Mr Lawler and his outfit are oversighted by a specific integrity commissioner. That has a far higher integrity rating than any other organisation. I think CrimTrac is now coming under the same body. The Commonwealth treats the gathering and storing of information pretty seriously so we can protect the rights and liberties of individuals.

Mr Rowlings : That is not borne out by a recent court case which was decided in the New South Wales Supreme Court. I believe you have a submission from Speed and Stracey Lawyers. In that case the Australian Crime Commission used its coercive powers and then shared that information with other agencies it should not have shared the information with. In one case it had an ATO officer as part of the actual quizzing of people who under coercive powers had to give answers. That ATO official was then on the case for the ATO prosecuting those people who had been interviewed.

In another case relating to the same people, because it was in the same court case, another ATO official was apparently behind one-way glass listening in and watching the evidence being given. That is in the submission of Speed and Stracey Lawyers who I understand are not appearing before this committee. We think it is very important in terms of the expertise of the ACC that this case be looked at. I think the decision was handed down only recently.

Justice Garling in the Supreme Court said: 'I am thus satisfied that the distribution of the compulsorily obtained material was intended and not due to an administrative oversight.' That is clearly the ACC acting beyond its powers and abusing its powers. The judge said that it was intentional, and we think that is a cause of great concern. This relates to things that happened in 2005 to 2007. It has taken that long for this to come out into the open. It has only come into the open because of a major court case. The ACLEI monitoring is not looking at process corruption which is that type of corruption within an agency, where an agency is going over the line, abusing powers and so on. ACLEI is looking for corruption, but that means where somebody is on the take.

CHAIR: That submission and that court matter are before another parliamentary committee.

Mr Rowlings : That submission?

CHAIR: Yes, the matter about ACLEI is before the parliamentary joint committee—

Mr Rowlings : I think this one is before yours, isn't it?

CHAIR: The position on the ACLEI issue is before another committee.

Mr Rowlings : Part of our discussion is that there are four inquiries going on at the moment. There are a lot of inquiries under the silos. You talk about the silos of intelligence, but we come to these committees and say: 'Hang on, you're looking at this bit, this committee is looking at that bit, that at another bit—it should be looked at in an overall fashion.' We have put this up and been told, 'No, we're doing this and that's all we're doing.' The problem is that nobody is looking at the overall issues, and then you get the silo problems that we have been talking about.

CHAIR: We have a very clear focus on crime reduction.

Senator NASH: Dr Klugman, I want to take you back to the discussion around the fellow that walked into the hotel—I was not here when you had that discussion. You said about the individual that guilt was apportioned. Why guilt? My understanding is there is a lot of information collection. I would expect that a lot of information is collected by the agencies that is then discarded as not appropriate or having no material impact. Why would you assume that guilt was attached to that person in the eyes of the agency?

Dr Klugman : I was not assuming it, Mr Lawler was.

Mr Rowlings : He gave it as an example of how he would report to a corporate entity on something that came to the ACC's notice.

Senator NASH: I understand that he reported it, but did he say that person was guilty because they were there?

Mr Rowlings : The inference is that they are guilt because they were there.

Senator NASH: The inference in your eyes, or did he make an inference?

Mr Rowlings : He did not make the inference. He reported that, but—

Senator NASH: Okay, I just wanted to clear that up.

Mr Rowlings : What would happen if you were the head of a bank—what do you think the head of a bank would do if the Australian Crime Commission came and said, 'Your employee has gone to this particular location where there was a criminal meeting'? What would the head of the bank do with that intelligence? The person's career would go nowhere from that time, and they would not know why.

Senator NASH: That is an enormous assumption you are making.

Mr Rowlings : No, it is not an enormous assumption. That is the way life is.

Senator NASH: I disagree on that, definitely. You said the ACC has shifted from its original purpose. I take it from that that you are not comfortable with it shifting from its original purpose—is that correct?

Mr Rowlings : Parliament gave it a brief in the first place—

Senator NASH: I understand that. Things change all the time. Legislation changes all the time. I am asking: are you not comfortable with the change that you see in the ACC?

Mr Rowlings : We share Senator Parry's concerns that you have too many groups doing similar things and that this is becoming a central intelligence agency which now has enormous powers to coerce people to give evidence. It has already proven that it has abused that power. It now has, as of the past three months or so, enormous powers to share that intelligence. The intelligence, as we point out, is not evidence; it is a lower level of fact or information—and that is very dangerous.

Senator NASH: You said 'doing similar things'. What other agency does what you see the ACC doing now?

Mr Rowlings : CrimTrac certainly does but there are—

Senator NASH: Isn't CrimTrac more just the repository for the information and the handling of the information, as the previous witness was saying? There seems to be a difference, as far as I understand it, between those two organisations.

Mr Rowlings : The Australian Crime Commission was to do high-level crime that crossed jurisdictions.

Senator NASH: But CrimTrac does not do that high-level crime.

Mr Rowlings : No, certainly not.

Senator NASH: So they are quite different; they are not similar.

Mr Rowlings : The ACC is becoming a repository of that type of information. It is not us that are saying this in particular. We are picking up on what is being said by other people. Mr Walsh and CrimTrac itself are pointing out in their submissions that the boundaries are very confused, and we are merely picking up on that. Bob Bottom, a crime journalist of long standing, approached us after we put in our submission and said that for years he has thought it is a problem that the ACC is not doing the right thing.

Senator NASH: In your view, what should the ACC be doing? How should it be operating?

Mr Rowlings : It should be operating to do what its original job was: to work on high-level crime and to catch the Mr Bigs of crime.

Senator NASH: How do you do that without information?

Mr Rowlings : You do it with the information, obviously.

Senator NASH: Isn't that the change with the ACC, that it has got more ability to get the information you are talking about to do the job you are talking about?

Mr Rowlings : We have not said it should not have information. I do not recall that we have ever said that. What we are worried about particularly is the extent to which—

Senator NASH: Sorry, maybe I was not very clear. When you are talking about moving towards a CIA model and that intelligence model you did not seem happy with that.

Mr Rowlings : No, going to an FBI model not a CIA model. We mentioned both, but it is more the FBI, we say in our submission.

Senator NASH: You say in your submission, 'Thus the ACC has become the CIA.'

Mr Rowlings : It has become the    centralised intelligence agency, but if you read on it says it is operating more like an FBI than a CIA.

Senator NASH: Sorry, it was just very clear when you said, 'Thus the ACC had become the CIA.' You said that in your view there might not be the evidence that the greater sharing of intelligence is necessary. Am I reading that correctly from your submission, that you do not necessarily think the evidence is there for this requirement or request for greater sharing?

Mr Rowlings : There is no evidence. It is only intelligence. That is the point we make. Intelligence is not evidence, and therefore you are operating immediately at a much lower level of fact.

Senator NASH: I am sorry, you have got me a bit confused; that was my fault. I was not talking about evidence being intelligence. I was saying that you were saying, about this request to have greater sharing of the criminal intelligence for a national approach, that you did not see there was any evidence that it was necessary.

Mr Rowlings : No. We are not against intelligence. We are not against catching criminals. We are in fact in favour of those things. What we want to do is make sure that the intelligence collected is not abused. That is our main concern, that we do not end up with an agency operating in the manner that the FBI, for example, after 35 years under one man ended up operating. The way you nip that sort of thing in the bud is by having very strict controls around it and having very strict auditing and monitoring of it. What we are suggesting to you is that it needs a lay monitoring body to overlay and check that some of the intelligence collected is in fact proper intelligence and not gossip, scuttlebutt et cetera.

Senator NASH: What is your definition of proper intelligence?

Mr Rowlings : Things that are accurate—

Dr Klugman : That are evidence based.

Mr Rowlings : That are fact based rather than just surmise, opinions and so on. That is what we are looking for.

Senator NASH: Could you give us an example of that—one that would be accurate?

Mr Rowlings : Not off the top of my head. I will take it on notice and give it to you. I cannot come up with an instant perfect answer for a question like that.

Senator POLLEY: In your submission you are suggesting that, fundamentally, our freedoms have been eroded since 9-11. Can you give me an example of where that has happened in Australia?

Mr Rowlings : When you go to the airport and you get on a plane is one example: you now take off your shoes and put your computers through et cetera. That is one clear example.

Senator POLLEY: You do not consider that to be a security measure to ensure safety?

Mr Rowlings : Of course it is a security measure, but it—

Senator POLLEY: How is that eroding our freedoms?

Mr Rowlings : We did not live that type of life in 2000. It is since the events of 9-11 that those sorts of restrictions have come in. Let me give you another example: it is now possible for the security agencies to go into your home without telling you at all, put monitoring equipment on your computer and you have no idea it is there. They can go into your neighbour's place and do the same to monitor your place. None of those powers existed before 9-11.

Senator POLLEY: Don't you think world events have necessitated this appropriate sort of action to protect Australians?

Mr Rowlings : I would ask you: what is different in Australia since then?

Senator POLLEY: Quite clearly there are threats that have been prevented and actions stopped from being perpetrated against Australians in light of the evidence and the intelligence the collection of which you have concerns about. Do you not think that is warranted?

Mr Rowlings : We think it is over the top; that is what we think. We think that we have become more of a fear based society. We think the powers given to police and the number of police and ASIO agents are far too expensive and are far more intrusive—potentially intrusive—into your life. You are quite right; it does not affect many people. But it affects some people and that is the problem: everybody lives not knowing whether somebody has come into the house overnight because they might be looking for a terrorist—not in your house but next door or over the road—that you have no connection with. These are powers that now exist in our security agencies that did not exist before.

Dr Klugman : There is an enormous number of powers under the terror laws, if you look them up, that do infringe on our civil liberties and human rights. As we were saying before, it is a matter of balance as to how much infringement you put up with. We are saying that after more than a decade of these laws which were brought in in haste and which, in our view and the view of many eminent lawyers, are extreme it is time to pull them back. It is time to have a look and see whether they are justified or not. If they are not, it is time to pull them back a bit.

Mr Rowlings : If they are justified, then we need them—that is right. But nobody has looked at that. While we are doing that now with counterterrorism, we are not doing it with the criminal laws that have similarly come in in an excessive way, in our opinion, over the last 11 years. It is time for a thorough review. On the questions that you asked: if you go back to what our rights are, as Australians, if we get some base, or benchmark, against which we can measure we will be able to answer questions like that, but we can't, because we don't know what these baselines are.

Senator POLLEY: Are you opposed to the sharing of intelligence information per se?

Mr Rowlings : No.

Dr Klugman : No.

Senator POLLEY: So, if I innocently wander into a hotel where there are criminal activities or whatever and all of a sudden there is a photo taken of me and it is taken into the computer systems of the ACC, it is not going to invade on me if I am not doing anything wrong. So how are my civil liberties affected?

Mr Rowlings : Of course not, if it stays within the ACC. But, with the example we gave you, Mr Lawler said that, if that happened, he would report that person, who was from a bank, to the head office of the bank. That is where the problem comes in.

Senator POLLEY: I was not here during that evidence, but I would suggest that it would be unusual for the ACC to contact an employer unless there was some evidence of association.

Mr Rowlings : You might say that, but you might also say that it would be unusual for the ACC to use its coercive powers illegally, but it has been proven in court to have done that. We would not have sat here five years ago and said that the ACC would abuse its coercive powers, but clearly it has done so. Without anyone monitoring what sort of intelligence is collected and how it is used, from an outside point of view, how do we know what they are doing? There are no checks and balances. ACLEI does not do that type of work. It is looking for corruption. Its brief is corruption. It has got about four lines, and every one says 'corruption', basically—in each clause. There is nobody looking at that. There is nobody checking. There are no checks and balances in the system to see whether it is doing its job appropriately or whether it is abusing the intelligence that it gets.

Dr Klugman : Another of the problems is the composition of the board of the ACC. We would much prefer to see some representative of civil society there. Why can't the community be represented? Why is it all security and spooks? It has been expanded, yes, beyond police—now it is ASIS and ASIO. Why can't there be some members of civil society on the ACC? Civil society has an enormously important vested interest in knowing what the ACC is doing.

Mr Rowlings : If you were setting up a private sector board, you would not set up one which had all interests on one side. You would have a collection of interests. You would have independent people on it. The ACC board is wholly inappropriate, in our opinion, to run an organisation like that.

Senator POLLEY: I think we have to agree to disagree. I will leave it there.

Senator PARRY: The great thing I love about Australia is that we can have this dialogue.

Mr Rowlings : We always enjoy our dialogues with you, Senator Parry!

Senator PARRY: I do. I know we have clashed in the past, but I have always enjoyed it. That is why we always invite you—to get a perspective that we do not have.

Mr Rowlings : I recall on one occasion you agreed with us! It was very pleasing. I think it was in Melbourne.

Senator PARRY: It must have been a rare moment! Thank you very much for your contribution. Can I just make a statement about the increased powers—I think I may have mentioned this on a previous occasion—and the oversight that we have just been talking about. First of all, every time the parliament gives increased powers to agencies, there is usually a level of oversight increase. Since I have been in this parliament, the Australian Commission for Law Enforcement Integrity has been established, and that has a clear oversight mandate. In relation to people power—the public having representation—the public does have representation through this committee, through the parliament. When the parliament makes laws, we examine all aspects—again, talking to people like you—and we hear concerns from every corner of society. So the oversight is there from a parliamentary perspective in the first instance, when we make the laws. Secondly, there is ongoing scrutiny by having parliamentarians from all parties, both houses, examining the annual reports, examining the issues and having in camera hearings with the ACC, the AFP and the Australian Commission for Law Enforcement Integrity. That happens on an ongoing basis and I am satisfied with the level of oversight. In fact, I think our agencies have far more oversight than probably most agencies anywhere. Just to counter your comments in relation to the ACC board: it is a specialist board with a specialist function that requires that level of expertise on the board. It does not require laity on the board, if I can use that term. The laity, if you like, comes from the oversight from the parliament.

Mr Rowlings : Well, you know we disagree with you.

Senator PARRY: We probably will disagree on that, but that is my view on that matter. In relation to intelligence, let me just go back. I think we have got a hang-up on intelligence, which is the core of what our inquiry is looking at—and the sharing of intelligence.

Intelligence has been held in the heads of detectives for years, and they might share it with a fellow detective and they might share it in the muster room. The example of someone going into the pub is always held up here. All we have done is translate that into documented form. Now it is in documented form then it is easily transferable by way of internet. That is what we are talking about. We have reached that stage in society where everything can be shared. What used to be here is now on there, and it is shared. The responsible sharing of that is very important; that is what we have a great concern about; also who controls it, how they disseminate it and how people access it. We are exploring those issues as we go through this inquiry. So the intelligence is not new. It is there. The information and the men walking into the hotel—

Mr Rowlings : There is a lot more of it, if I may comment.

Senator PARRY: There may be a lot more of it but it is still there. It has always existed; it is just the way it can be shared a lot more rapidly and with more people. That is the big issue with intelligence. We want to make sure that it is shared appropriately. I think you you share that concern.

Mr Rowlings : Absolutely. We have no qualms with that, but we would like it to be accurate intelligence.

Senator PARRY: That is the other thing. I think you think someone walking into a pub—and that is a good example—someone walking into a hotel; there are some crime figures in the hotel, and that is one piece of information that is collected, collated stored; whether it is stored in someone's head or on a computer, it is the same issue; it is stored.

Mr Rowlings : Not in Mr Lawler's opinion. That would be instantly given to the head of a bank and affect the career of that person—

Senator PARRY: I am going to research your comments about that, because I do not recall that being said.

Mr Rowlings : That was not said to this committee; it was said to another committee.

Senator PARRY: We can research that. I would not mind if you—

Mr Rowlings : Graham Perrett's committee, whichever one that is.

Senator PARRY: We will talk to you about that afterwards, without delaying here. I would like to research that, because I cannot understand how a comment like that would be made.

Mr Rowlings : Neither could we.

Senator PARRY: The intelligence is retained, and that intelligence is never used unless there is a need to use it. It is not disseminated in any way that I can see. It is only one piece of information, which is irrelevant unless it marries in with lots of other pieces of information, and that is the whole purpose of collecting intelligence. The whole purpose of us inquiring into this is to make sure the appropriate sharing occurs so that the law enforcement agencies have exactly what they need. That is a very important tool; it has to be collated correctly, stored and then utilised when it needs to be utilised. So that one piece of information does not mean that someone is instantly guilty of something; it is just a piece of information.

CCTVs around the world now capture information about all of us all the time. We just accept that in society. I am interested in your comments on the storage of that information—who should store that information?—because I think we have to acknowledge the information is there. We just need to know who should manage the information and how it should be managed. If you have any further comments about who should have the information, who manages it and whether it should be shared amongst law enforcement agencies, I would be keen to hear your comments about it.

Mr Rowlings : We do not think the ACC is the right place to store that information. We think that CrimTrac is an organisation set up more in keeping with storing that information. We think that giving that central storage responsibility and power to the ACC is taking the ACC in the wrong direction. The ACC, we think, should be concentrating on the corporate crime. I come back to corporate crime a bit later, if I may. But certainly not to—

CHAIR: Corporate crime or organised crime?

Mr Rowlings : I would like to say 'organised and corporate crime', if I may.

CHAIR: Okay.

Mr Rowlings : If you have time, I will come back to it. Certainly not the ACC—it should be an agency like CrimTrac.

This comes back to our discussion on the fact that there is a lot of legislation around, there are a lot of agencies with overlaps, and those things need resolving. That is why we think there needs to be someone looking at all of that and collating it. What is being done for counterterrorism we think should be done in the criminal legislation area.

How should it be stored? We believe that it is much safer to store it in silos and have interconnected silos than it is to have one big database. You would know all the valid reasons for that. The linkages between getting the information from wherever it is to wherever it is needed is the key element, but it in terms of storage there is no reason to store it in one great big database. There are massively increased risks in doing that. For example, Telstra, Sony, the banks, Google have all lost data by hacking or by something inadvertent or whatever. The same thing will happen to this intelligence database. You can guarantee it. It will either be inadvertently or deliberately mislaid or whatever at some stage. That will happen, because that happens to databases.

Senator PARRY: Why CrimTrac?

Mr Rowlings : We are not experts in this. As the AFP man said, it is not really our expertise. What we are saying is not the ACC, because we are a very worried with the way the ACC is going. We have given you the reasons for that. These are not out of our heads; these are out of courts in New South Wales.

Senator PARRY: Could I just clarify this: there is the ACC, the Victoria police—all the different agencies around the country. If CrimTrac is charged with holding the information and disseminating and sharing the information, that still will not stop ACC with its own intelligence holdings that it currently has, and that will obviously be increasing. You are suggesting that CrimTrac be an agency because it is separate from the ACC, because of your concerns with the ACC, but it should be the agency for holding and disseminating, and each of the other agencies have their own intelligence holdings, which they then share through the common connection, being CrimTrac?

Mr Rowlings : You use IT technology to enable the sharing and partly the electronic monitoring of that process, so you know where stuff has gone and all the rest of it.

Senator PARRY: That is quite sophisticated now. Your strong preference would be for CrimTrac to be the central lead agency, if you like, in relation to the holding and dissemination?

Mr Rowlings : We are not experts in that area. We are more concerned that it is not the ACC. I have explained why.

Senator PARRY: Yes, you have articulated that. Thank you. That is all I have.

CHAIR: Mr Rowlings and Dr Klugman, as usual, that was a very thought-provoking discussion.

Mr Rowlings : There is something else that I would like to take up, if I may, briefly. On the idea of corporate organisational crime, the ACC has not done an investigation, that we are aware of, of crime within the government. In recent times, crime within the government sector, such as the AWB, the Reserve Bank allegations et cetera, are areas that we believe are of significant importance to Australia.

CHAIR: I think its charter goes to serious and organised crime.

Mr Rowlings : Well, that is fairly serious, the stuff that I have mentioned—bribery on a major scale.

Senator NASH: The AWB was not a government agency.

Mr Rowlings : A statutory authority.

Senator NASH: But it was not a government agencies; it had the right to the single desk.

Mr Rowlings : They are called GPEs, aren't they?

Senator NASH: Anyway, go on.

CHAIR: I think the Australian Federal Police were involved. This is not an area of criticism of the Australian Crime Commission, but there is the fact that it does work in partnership with each police agency in the country. Regarding whether they do the press release at the end of the investigation or at the point of prosecution, I think the level of partnership working amongst law enforcement authorities has certainly increased greatly over the last 10 years.

Mr Rowlings : Certainly. I would like to table this Financial review article in relation to that which says:

Dozens of people prosecuted for offshore tax fraud by the six-year-old Project Wickenby taskforce could have their cases reviewed after a court threw out a case against two men due to flawed evidence.

All of that sharing and all of that interaction between the government agencies is now at risk because of abuse of the coercive interviewing power by the ACC. That is how dangerous the ACC's actions are. They are not only affecting what they do; they are affecting all the other agencies.

CHAIR: I thought you would have been rejoicing the fact that in this country we do have judicial oversight for all prosecutions and judges are capable of reading down and interpreting law.

Mr Rowlings : Certainly, but it has taken seven years to get to that stage and we do not know how many other people are affected. There is talk of another 17 for certain being affected under the same provisions and postulations that dozens are affected, and possibly hundreds affected, under what the ACC has done over the past seven or eight years.

CHAIR: I am sure that, if we all had a greater respect for the liberties of people, we would not need as many laws or police powers in this country. The truth of the matter is that there are groups of people who do not respect the liberties of others, which we discussed last time.

Mr Rowlings : Certainly.

CHAIR: I think we have some common positions on that. From our perspective as parliament, we are here to safeguard the rights of individuals who make up our community. There is seen to be a need. I know you think it has been accelerated since 2001 and that has possibly been the case, but in terms of crime I am sure you are not going to put a proposition to us that crime has reduced since 2001 so we should be reducing our powers to law enforcement.

Mr Rowlings : We are not putting that position to you, but we are most concerned where an agency is given clear legislation and it abuses that legislation. The Supreme Court of New South Wales has found that to be the case in what the ACC has done in the major criminal investigation that has occurred in this country in the past decade, and that is the Project Wickenby, where every resource of government was brought to bear and it appears as if the ACC's inability to follow the law has brought it down.

CHAIR: You have made your point and you made it, as always, very strongly. I thank you for your contribution. It has been thought provoking.

Senator PARRY: Chair, you asked that the information may be provided to the secretary in relation to that other committee.

CHAIR: I think Senator Nash asked you questions and you were going to come back with advice. Could you do that within two weeks for us, please?

Mr Rowlings : Certainly. Can you write it out for us, or can we get it from the transcript so we make sure we get it accurately?

CHAIR: We will get it to you.

Mr Rowlings : Thank you. Thank you for the opportunity to appear.

CHAIR: For the purpose of the record, I formally accept the document tendered, the extract from the Financial Reviewtitled 'Court spikes Wickenby case'.

Proceedings suspended from 10:01 to 10:16