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Parliamentary Joint Committee on Law Enforcement
Gathering and use of criminal intelligence

ANDERSON, Mr Iain, Acting Deputy Secretary, National Security and Criminal Justice Group, Attorney-General's Department

CHIDGEY, Ms Sarah, Assistant Secretary, Criminal Law and Law Enforcement Branch, Attorney-General's Department

CHAIR: I welcome the representatives from the Attorney-General's Department. I remind people on this committee that an officer of a Commonwealth department shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked to officers of a senior office or to a minister. This resolution prohibits any question being asked for opinions on matters of policy and does not preclude questions being asked for explanations of policies or factual questions about when and how policies were adopted.

The committee has received your submission, which has been marked submission 3. I ask you to make a short opening statement before my colleagues and I ask you a few questions on that.

Mr Anderson : I would like to make one comment in opening and that regards a particular case that Civil Liberties Australia referred to in their oral evidence. That decision of Justice Garling is, in fact, on appeal. That appeal is going to be heard later this year. We do not propose to comment on that—it is a matter before the courts—but it is certainly not a foregone conclusion as to what the eventual outcome of that case will be.

CHAIR: We have a lot of faith in the judiciary in this country. That is part of the process. Unfortunately, you were not present to hear much of the evidence of Civil Liberties. They certainly expressed some disquiet about what they see as the emerging role of the Australian Crime Commission regarding that which they think concerns the erosion of freedoms. They are more concerned about some of the coercive aspects of the commission. These are all matters of government policy.

In relation to issues that are before this committee about the gathering of intelligence, its interoperability with other law enforcement bodies and being able to transmit information on a real-time basis, does AGs have any fundamental difference with what is being argued by the Australian Crime Commission and, it seems to me, by the Australian Federal Police about further development of the repository of criminal intelligence and being able to share that information on a more structured interoperable basis?

Mr Anderson : I would note that we have no fundamental difference with what has been said by the ACC or the AFP. It is a work in progress. The sharing of intelligence and the building of interoperability does take time. There are legal impediments and there are cultural impediments and then there are technological impediments. Those need to be worked through. Certainly the sharing of intelligence is a central plank of the Organised Crime Strategic Framework. The Commonwealth sees it as a very, very vital part of the fight against organised crime, and it is going to be an area that will continue to receive attention for some time.

CHAIR: What do we need to be alive to with respect to possible legal impediments?

Mr Anderson : One thing I would say is a note of caution. Legal impediments are often raised but when you explore them they are not necessarily impediments—sometimes it is for cultural or other reasons. There are always going to be tensions with intelligence between the need to disclose, which itself carries risks, and the need not to disclose in certain circumstances. Those are things that agencies are working through.

I am not going to point to any particular legal impediments at the moment. We think that a lot has been done already to enable the sharing of information between government agencies and, more recently, to enable the ACC to disclose information to the private sector—to bodies that are prescribed.

CHAIR: I think that was on the recommendation of one of our former inquiries, in terms of selective use and the private sector.

Senator NASH: I am fairly new to the committee. The Organised Crime Strategic Framework is obviously pivotal. You say in your submission that it has resulted in a more informed, coordinated and prioritised approach. Can you give me a bit more information around what the more informed, coordinated and prioritised approach means?

Mr Anderson : Partly it is a state of mind. Partly it is agencies involved in the fight against organised crime understanding that the best way forward is through collaboration and through not allowing jurisdictional barriers, for example, to impede the collaboration. So the first step is for agencies to be reaching out and saying, 'What can we actually do better if we are doing it with other agencies in this space?' That means identifying the need for joint task forces and things like that, involving state and territory bodies as well as Commonwealth bodies and reaching out to bodies such as the Australian Taxation office and saying, 'Although you're not a traditional law enforcement body there are things that we can do together with you that we can't do alone.' Those sorts of messages are very important messages.

We have done an evaluation recently of the framework and it was clear from that evaluation that around a range of agencies that message has been very strongly internalised. One of the first things agencies do is think, 'Who do we need to work with to better achieve some outcomes?'

Senator NASH: What was the catalyst for the mind-set change? That obviously sounds like a much better set of arrangement than was previously there. What was the catalyst for the change of mind-set to have this focus on thinking outside the square in terms of that interaction?

Mr Anderson : It is probably something that everyone had been moving towards.

Ms Chidgey : The framework itself has pushed—

Senator NASH: The fact that it exists, and that everybody is working to it?

Ms Chidgey : Yes, that is right. There was a lot of work done in the lead-up to finalising the framework and ultimately making it public at the end of 2009. But as Mr Anderson said, that has been the direction that law enforcement agencies have been moving to. It is possibly a result, too, of developments overseas in countries like the UK and the US. The UK have done a lot of work, just preceding some of the changes and the framework we have put in place here, about a holistic, whole-of-government response to organised crime, where you set common priorities and try to use the full range of enforcement and regulatory powers to target particular crime priorities. That is something we had looked at, as well.

Senator NASH: I think you also say in your submission—correct me if I am wrong—that legislative arrangements are already in place for better processes in sharing criminal intelligence. Earlier today it was raised with us that perhaps there needs to be some sort of mandatory requirement or legislative oversight in terms of any move to this national approach to criminal intelligence. Could you just give us a comment on that?

Mr Anderson : I would just note that there is actually a great deal of oversight on the work of agencies and this committee is one example of an oversight mechanism. Of course, any new powers or amendments to existing powers that come before parliament will be scrutinised. Now, of course, they do need to have a human rights compatibility statement as well. Then of course there are the courts. So there are already a range of different oversight mechanisms. I myself do not see the need for further mechanisms.

Senator NASH: I think the Police Federation said earlier on that if we were going to move to some sort of national approach for criminal intelligence—I got the sense that they did not necessarily feel that that would spring up of its own volition—that there might need to be some sort of mandatory requirement to move that way. Has the department actually considered how the actual structure might work?

Mr Anderson : Not a mandatory requirement as such. There are a range of different bodies that exist to promote collaboration—for example, there is the Senior Officers' Group on Organised Crime, which involves representatives of all the jurisdictions and which meets regularly to talk about what is being done and about what could or should be done. Bodies such as that—and there are bodies at other levels as well—promote the sorts of aspirations contained in the National Organised Crime Response Plan. So we already have ways of saying: what is going to happen over the next two years, who will be doing them and what are the priorities? We have bodies that are charged with delivering those priorities. They also report upwards to ministers through Standing Council of Police and Emergency Management.

Ms Chidgey : Just on that, it might be worth mentioning that intelligence and information sharing is also a current priority of the standing council of police ministers.

Senator NASH: What is the risk in not moving to an environment where there is greater information sharing. What you are saying sounds great and obviously within the department there is a real mindset to do that. What is the risk of not doing that?

Mr Anderson : Of not mandating it?

Senator NASH: Not moving to a more national approach whereby the intelligence is more effectively utilised.

Mr Anderson : The risk is recognised in the organised crime strategic framework that criminals will be able to actually exploit gaps between jurisdictions or between agencies if we do not share the information and if agencies do not work together. Crime does not respect jurisdictional barriers or indeed delineations between agencies. That is the clear and present risk that we are all actively trying to mitigate.

Senator NASH: That is very useful.

Senator POLLEY: Thank you for your submission. I am not sure whether you were here when we had the civil libertarians give evidence this morning. They are having concerns that the ACC have gone too far. Initially in their submission they said it was more like the CIA and the FBI. I wonder whether you have any general comments to enlighten the committee as to whether you agree or disagree with that observation.

Mr Anderson : We do not share those concerns. As I referred to in a previous answer there are already a range of oversight mechanisms already such as this parliamentary committee. There is the intergovernmental committee on the ACC as well, so there is ministerial oversight from all jurisdictions. Ultimately, of course there are the courts. I said I would not talk about the particular case that is the subject of appeal, but I will note that the ACC's powers have been the subject of consideration by courts and have been upheld. That judicial oversight has said that the ACC is doing appropriate things and that there are appropriate safeguards.

Senator POLLEY: Their evidence this morning was that they believe that, since 9/11, there has been an erosion of civil liberties for Australians. Do you have any comments to add to that?

Mr Anderson : We do not share that view.

Senator POLLEY: Thank you.

Senator PARRY: Mr Anderson, if we end up with the utopia that police jurisdictions are looking at—where everything is shared, and I know this is not directly subjected to this inquiry, such as databases in relation to traffic matters, when a police officer pulls over a vehicle, to the federal agent searching for criminal intelligence—and a federal agency ends up controlling the movement and sharing of that intelligence, would the Commonwealth be liable if something went wrong with that information and the information were shared incorrectly against any protocols or any MOUs set up for this? What liability would the Commonwealth endure from the states if something went wrong in relation to that information sharing or intelligence sharing?

Mr Anderson : I will have to speculate on that. I note that I do not think that we will get to that utopia. If you look at existing mechanisms, jurisdictions tend to choose what they share. An active decision is made as to what is appropriate to share set against a backdrop of the desirability of sharing as much as possible. Jurisdictions will make decisions on the weight to be put on certain things and whether they are ready to be shared or not, for example. If something happens and intelligence is then disclosed by a Commonwealth agency that in turn leads to an action by a Commonwealth agency, there would certainly be issues of accountability for the Commonwealth. But if another agency acts on that intelligence, say a state or territory agency acts on intelligence disclosed by a Commonwealth agency, for accountability you are going to have to look at the decision-making processes in that state or territory agency. Not being an operational law enforcement person, other people appearing later today could answer that question better. Criminal intelligence is something that always needs to be weighed by the operational decision makers. Ultimately they would be the ones who would be accountable for the decisions that they make based upon that criminal intelligence.

Senator PARRY: Apart from professional standards integrity issues within each agency there would be no overarching liability if the Commonwealth took the lead role in the oversight of the distribution of intelligence from individual agencies, including state jurisdictions?

Mr Anderson : I am loath to speculate on that, because it depends upon the actual arrangements. If such arrangements were put in place, there would be questions as to legislation or other underpinnings. Those would have an impact on whether or not there was a liability.

Senator PARRY: As a second part to the question: in relation to the states only, if the Commonwealth wanted some interaction with the states in relation to intelligence sharing greater than what exists, would it have to be the states that initiate the ability to share their information rather than the Commonwealth mandating that information be shared? Is that correct?

Mr Anderson : That is correct, yes.

Senator PARRY: Without state cooperation the idea of sharing information on a voluntary basis would never occur. We could not request that from a Commonwealth perspective?

Mr Anderson : That is correct. We can only request it. It could be mandated for Commonwealth agencies, but you would need to have regard to other secrecy provisions and whether they would cut across each other.

Senator PARRY: If it was mandated by a legislative framework for Commonwealth agencies, where would that manifest itself? How would that happen, or is it complex, myriad acts and regulations that would require that? Could they be agency head decisions or ministerial decisions? How would it occur?

Mr Anderson : It could be done in a number of different ways. That is one of the areas where there is probably not a lot of value in me speculating. It would depend upon how the government of the day wished to do that.

Senator PARRY: Do you have any advice for the government in relation to how it should happen?

Mr Anderson : If the government wished to do that, we would be providing advice.

Senator PARRY: I know we cannot ask you for an opinion, but would you favour legislation or ministerial direction?

Mr Anderson : One thing about legislation is that it is always clear what the rights and powers are. That means there is the ability to have parliamentary oversight, parliamentary debate et cetera. That can be quite useful to clarify transparently what is intended by a particular regime that has legislated, as opposed to a ministerial direction where you do not have the same degree of scrutiny or public debate.

Senator PARRY: Thank you.

CHAIR: Thank you for your contribution. There could be a number of things that come out of this hearing which we might like to come back to you on in writing. But just before we excuse you, can you explain the recent amendments to the Australian Crime Commission Act to widen the scope whereby the ACC can share information, including with the private sector? And how is that sharing of intelligence with the private sector being conducted in practice?

Mr Anderson : As was pointed out previously, that was also a recommendation of this committee. The government has decided to give the ACC that power to share, providing the range of safeguards that are contained in the legislation are met. The sharing of information also has to be to bodies that are prescribed, and there is a process that has been underway of prescribing a range of different industries and bodies with whom the ACC can share information. As to how it is going to work in practice will be a matter for the ACC in terms of having regard to those safeguards, the nature of the intelligence that they choose to share and the bodies that they choose to share it with in any given situation. With criminal intelligence, one thing that could be shared, of course, is specific fact based or case based information, for example, about person X engaged in activity Y.

But there are other forms of intelligence or, indeed, of preventative material that might be derived from the analysis of intelligence to say that we have observed a particular type of risk that might apply to your industry or to your business and you might want to think about your general preventative measures in relation to this area. That might not be conveying criminal intelligence in the form of information about particular individuals and their activities but rather something that is derived from that.

Ms Chidgey : The only thing I would add is that there are particular additional safeguards where personal information about named individuals is disclosed in the act. The safeguards also envisage that there will be written agreements between the Australian Crime Commission and prescribed bodies that they are sharing information with, which include undertakings as to how that information is to be protected, the extent to which it can be used and disclosed by those agencies and some criminal offences that apply to any breach of those conditions. We have prescribed in regulations so far key private sector organisations in the maritime sector, the aviation sector and the financial sector. We are continuing to work with the Australian Crime Commission on additional sectors that we cover. The Australian Crime Commission are in the process of developing further memoranda of understanding that they will enter into with those organisations before sharing information with them.

CHAIR: As I said, I do envisage that we will probably come back to you during the course of the inquiry with a couple of requests for advice.

Mr Anderson : We are happy to take any questions on notice.

CHAIR: Thank you very much.