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

HARFIELD, Mrs Karen, Executive Director, Fusion, Target Development and Performance, Australian Crime Commission

LAWLER, Mr John, AM, APM, Chief Executive Officer, Australian Crime Commission

LACEY, Dr David, Executive Director, People, Business Support and Stakeholder Relations, Australian Crime Commission

McDEVITT, Mr Ben, State Manager, Queensland, Australian Crime Commission

[13:54]

CHAIR: I welcome representatives of the Australian Crime Commission. I invite you to make a short statement and after that my colleague Senator Nash and I will ask a few questions.

Mr Lawler : Thank you, Chair, I will make a very brief opening statement and I would like to thank the committee for giving us the opportunity to appear before you this afternoon. The committee has from the Australian Crime Commission both a classified and an unclassified submission in relation to the committee's terms of reference. I know the committee is very familiar with the nature of the threat that we are dealing with so I do not want to go into detail about that threat; you know the various components of it. But the reality is that we are not always as well informed as the criminals we confront. It is true that we need to be smarter about how we share intelligence and more systematic and fulsome in that sharing process.

We thought long and hard about our appearance here this afternoon and thought it might be of assistance to the committee if we tabled an unclassified document. It is done on A3 to help those who have trouble with their eyesight, like I do, but it is not a technical document. It is a diagram that tries to put on one sheet of paper what the current state of criminal intelligence is and what a future state might look like and how one might actually get there. That sheet of paper may very well help the committee as you proceed with your questioning. With the committee's indulgence, I would like to table that.

CHAIR: Yes, thank you. The committee formally accepts the document as an unclassified document from the ACC, which has a legislated mandate to maintain a national picture on serious and organised crime. Please continue.

Mr Lawler : Thank you, Chair. In leading you through that document, I know it will be unfair in some ways because the committee members have not had access to it before now, so it might be important to take you through what the document is. On the left-hand side you will see the current state of play. It is a challenging environment in which there is limited availability and accessibility of current and complete criminal intelligence. There are inconsistent approaches to the way in which Australian agencies collect, collate, analyse, produce and share criminal intelligence and there is outdated technology, including the ACC's national criminal intelligence systems. If you then go to the far right at the top of the sheet you will see where we are striving for the future environment. That has a number of components to it, but it is where criminal intelligence is seen as a national asset, is available to those who need it, is collected once and used often, is contemporary and relevant, and informs disruption and prevention. In the middle of the diagram there is the bridge between these two environments. That bridge is the Australian criminal intelligence model which has been developed jointly by agencies from across Australia to improve the way in which we manage and use criminal intelligence.

The optimal environment we seek is one where technology is available to facilitate information sharing through more-complementary systems, where there are a commitment by agencies to quickly and effectively collect, analyse and share relevant intelligence and a collaborative culture of intelligence sharing to support decision-making across agencies and across operating domains. I hope the diagram assists the committee's deliberations either today or at some future point in time. With those opening remarks, my colleagues and I are happy to answer any questions that you may have.

CHAIR: One of the things you made reference to in your opening address was the ACC's outdated systems. Presumably you were referring to ACID and ALEIN and that these databases need to be modernised not only for the purpose of collecting, maintaining and storing but also distributing criminal intelligence. One of the other things that have occurred, as I understand it, is that the Commonwealth has caused to be changed various security settings applying to its stored material. I hear there is some disquiet amongst partner organisations, who are largely the contributors to a lot of this material coming in, who will not share the same security rating at the moment. Is it likely to lead once again to a cultural impediment where people ask why they should contribute if there is a likelihood that they will not be able to retrieve and use that information because of the changed security criteria?

Mr Lawler : You are right insofar as the Australian Criminal Intelligence Database, ACID, and its network, ALEIN, are ageing technologies. They were brought into the Australian Crime Commission from the then Australian Bureau of Criminal Intelligence. They are 1980s technology. There have been enhancements to the technology throughout the years, but it is fair to say that it is widely recognised that the technology underpinning Australia's national criminal intelligence holdings is eroding and will require attention and potentially complete replacement.

As far as the issue of the Commonwealth protective security framework is concerned, this is work that has been underway for a number of years in the Commonwealth arena. There are grandfathering provisions that extent I think to August 2013 for agencies to implement the new Commonwealth protective security regime. This matter has been raised at the board of the Australian Crime Commission as a challenge that we are all facing in moving from what was a 'highly protected' environment through to a 'secret' environment. There are very good reasons why that needs to occur, particularly as it relates to our interface with our national security partners, particularly the Australian intelligence community. It is also fair to say that a range of other partners of the ACC, including board member agencies at both Commonwealth and state level are impacted by this change. I know that some state agencies are moving to a position to support the new protective security regime and that others are variously progressed at different levels. It does have the potential, if not properly implemented, to adversely affect the exchange of information.

The other thing that the board has been briefed on, and has established a working group on, is the systems classification interface.

This is a very complex environment insofar as we need to have the systems, particularly the Australian Criminal Intelligence Database, to be able to ensure that people who access the system at a required level have the appropriate clearances, and that where the systems interface between each other it is done at a consistent classification level. These are very challenging and complex areas, and some of my colleagues may wish to add to that if need be.

CHAIR: Apparently not. Recently, there was a lot of criticism by Professor White, a Senior Lecturer at the Australian Graduate School of Policing at Charles Sturt University, that arrangements for the development and handing over of criminal targets to a national security agency need to be further developed. He seemed to be not necessarily caustic but certainly critical in procedures helping advocate it. Do you have any view on that?

Mr Lawler : On handing targets to our national security partners?

CHAIR: Handing over criminal targets to the national security agencies.

Mr Lawler : I do not believe that is an issue at all. Let me start off by saying that over the last few years the Australian Crime Commission and its partners have had a picture of the threats to the Australian community in more granularity than probably ever before in its existence. That is, in part, because of the sharing of intelligence between agencies. Notwithstanding the chart you have in front of you, there is more to do. We have lawfully exchanged information with our national security partners and we have worked closely with ASIO, who is on the board of the Australian Crime Commission. The new changes to the national security community and the inclusion of organised crime in the definition of 'national security' in the 2008 National Security Statement mean that the Australian Crime Commission is well positioned in those structural bodies that inform the intelligence community of the threats and risks of organised crime. Without knowing the full context of the person who has made those particular comments, on the face of it I do not believe them to be accurate.

CHAIR: Has the national criminal intelligence model now been signed off by all jurisdictions?

Mr Lawler : The answer to that question is yes, it has. Ben McDevitt might like to talk in more detail on that, as Mr McDevitt has had the responsibility of leading the work on the national criminal intelligence model.

Mr McDevitt : I seek to table an unclassified version of the model. It may be useful if I can draw your attention to particular elements of the model.

CHAIR: Just before you do, I put it on record that I accept the document of the Australian criminal intelligence model.

Mr McDevitt : The work towards the model has been ongoing for at least two years, so its endorsement last month by the ACC board is a significant step forward. In its endorsement the board has signed off on several elements which lead to an intent, an underlying philosophy and a desired end state for the management of criminal intelligence.

If you look at the model, I will draw your attention to certain components of it. You will see firstly that the model crosses several of what we call 'operating domains'. The first you will see they are at the top is the policing and community safety domain.

It is important to see the distinction between these domains, because traditionally they have operated under their own rules of engagement, their own methodologies, their own structures and processes. For example, you had a presentation this morning from CrimTrac. CrrimTrac essentially was pivotal—and is pivotal—to the policing and community safety domain and is about systems built by police for police, for that domain. Its main work is aimed at the players within the policing and community safety domain.

Then of course we have the national security domain, which has a great degree of maturity and sophistication in terms of its processes, protocols and methodologies for treating and moving the intelligent assets between agencies.

The third domain is the serious and organised crime domain, which is central to the ACC and quite a growing number of other Commonwealth and state and territory agencies. It is important to point out that this model actually seeks to acknowledge that for us to be successful in our respective domains we actually need to see a flow of intelligence not just in between the domains but across those operating environments. You will see in the middle there that we have a vision, which has been endorsed by all ACC board agencies plus CrimTrac plus ANZPAA. They are the 17 agencies that have endorsed this model

CHAIR: So they have already signed off on it.

Mr McDevitt : Yes. The vision there is intelligence partnerships for a safer Australia. All 17 agencies recognise that that is what we need—that intelligence is the critical currency for all of us; it is the thing that allows us to remove ambiguity and to remove uncertainty, and it gives us a decision advantage in our respective agencies if we have timely and accurate intelligence available to us. The intelligence assets we are dealing with emanate from across agencies operating in all three of these domains. Where it is appropriate and proper, we are trying to encourage movement of that intelligence across the domains so that we are looking at criminal intelligence as being a national asset that would belong to the enterprise of agencies involved, and we would treat it and manage it as a national asset.

So you will see there that our mission, which is exactly that, is the free flow of intelligence across the policing, law enforcement, law compliance and national security environments. We accept that we will never have, for good reason, an entirely free flow of intelligence. However, all of us agree that as an aspirational statement we would like to move as closely as we can to a free flow, bearing in mind that all of our agencies operate for good reason within legislative and policy constraints.

We have agreed on three underlying principles, if you like, which help us to get a philosophy for this. The first is that intelligence must be customer focused and requirements-driven. We are not collecting intelligence for the sake of collecting intelligence; we are not collecting information for the sake of collecting information. In fact, a saying I like is: you don't find the needle in the haystack by putting more hay on the stack. So we collect against specific requirements. For our space, in the ACC, we have very clearly articulated national criminal intelligence priorities, and we have a number of strategic documents which guide our collection efforts. All of the agencies have their own set of requirements which drive their collection efforts.

The second principle we agreed on is that information and intelligence should be collected once and used often. That is a really important principle for us to have, because it leads to a concept of re-useability. At the moment, when any of our agencies collect intelligence, it is generally for a very, very specific purpose.

We have multiple examples of where intelligence from one agency collected for a specific purpose comes into the enterprise and, in fact, because we do not apply this concept of reusability, we are constrained in being able to actually use that intelligence for multiple purposes across the enterprise. It creates some significant difficulties for us.

The third principle is information security requirements being balanced accordingly to enable the right people to access the right information quickly, securely and from the right sources. That really is about making sure that we get the balance correct in terms of the traditional need-to-know way of thinking, or the need-to-know principle, to this principle which Assistant Commissioner Morris spoke about, which is really the responsibility to provide. Somewhere in there is a better balance that is required for us.

That leads to the issue of accountability, which, as I said, Tim Morris raised, whereby under this model agencies seeking to consume intelligence from the enterprise, from the national asset, would actually be required and held accountable to contribute intelligence to that. That is quite different to what we have now, which is a model largely based around goodwill, with agencies contributing where they feel it appropriate, based on their own decision-making.

I will not go through the strategic objectives, but you will see that there are seven of them at the bottom of the model. They are the deliverables, if you like. They are the things that we will report back to the board and ensure that we are moving towards the end state that we desire.

CHAIR: Essentially, under this model, in terms of law enforcement, you will rely on the commitment of the commissioners who are members of the ACC board to drive as much as possible their own jurisdictions?

Mr McDevitt : There is immense goodwill amongst board agencies. This is representative of that goodwill and that intent. In saying that, the respective commissioners themselves are within jurisdictions which have a whole range of legislation that allows or disallows the movement of information and intelligence in and out of the model. Whilst they have all the goodwill, it is not their decision alone to see this operationalised.

CHAIR: Is that going to be overly problematic at this stage? I imagine there will be issues about protocols but also probably some matters that need to go before the council of police ministers themselves.

Mr McDevitt : That is correct. I suspect we will make incremental progress as we seek to identify specific legislative impediments and so on. For some of the agencies, it is quite easy for them to contribute, particularly within a jurisdiction or to particular categories of agencies. It starts to become a lot more complicated when intelligence or information goes into the middle and then is disseminated beyond and they are not able to act to track where it originally started from, in terms of their contribution.

CHAIR: Integral to moving to the new model, is it also important at that stage to ensure that our technology is up to speed and is able to store and disseminate information? Mr Lawler has made it clear that we are talking about 1980s technology. A lot of our state and territory partners would claim that some of their technology far outstrips its capability presently.

Mr McDevitt : That is correct. I take you back to the model very quickly. On the top left-hand side, you will see what we refer to as a traditional intelligence cycle. I spoke briefly before about the prioritisation phase. That is the first phase of the model. Then you move on to collection and collation, then analysis and production, then reporting and dissemination, and then evaluation and review.

What is being proposed under this model is not so much to look specifically at any existing database or system but more to design, develop and implement the technologies that are required at each stage of the model. So, for collection and collation, for example: what automated collation abilities do we need, what connectivity to what existing systems and databases do we need to actually be able to collect automatically where possible that intelligence and information? You then go on to the analysis and production, and that is about smart analytical tools.

Quite frankly, I think a lot of the databases that we utilise collectively at the moment are very good in terms of being useful repositories of data but are probably underexploited. So once we have the data and the intelligence, we need to be able to exploit that to its maximum. That might take one of three forms. We might exploit it, for example, to learn more about a target or to value-add to the information itself and enrich it. We might exploit it by being able to match datasets together and start to identify criminal footprints from within the data. That might be datasets that on the face of it you would not think you would learn a lot from. But we have seen some really good examples through the fusion capabilities of that working to great effect.

CHAIR: So you think we get here by a series of stepping stones, if you like, or building blocks to it?

Mr McDevitt : I think that is right. I think this will be a journey that takes some time. I heard earlier the discussion about building blocks; I think that is the logical process. It is an evolutionary one rather than a revolutionary one. I think the revolution here is actually signing off on the philosophy, the concepts and the end state. But I think now we have a lot of catch-up in terms of processes, protocols, technologies, agreements, possibly legislative—

CHAIR: Just on that: I think there is only one other organisation that has so far submitted and said that they have signed off on this—that was the ATO. Just making it clear: you are saying that all those partner agencies have signed off?

Mr McDevitt : That would be because most of their submissions were probably prepared before the board meeting. The board endorsed the model at its September board meeting.

Mr Lawler : Chair, can I raise a couple of other matters in response to your question. One is around the system and the current ACID/ALEIN performance. It is fair to say that partner agencies—and particularly in the states and territories—are showing significant frustration with the system because it is not able to deliver the sort of performance that one expects now in a personal context from the sort of computer power that is more broadly available. It is quite clunky, and the sorts of tools that are available are not where they need to be. That has had the effect of a drop in user numbers, which I would expect to continue until such time as that is remedied. We are doing the best we can to respond to users' needs, but it is a challenging environment. I think it is important to put that on the table.

CHAIR: Is dropping user numbers synonymous with fewer of your partner groups contributing or the contributions are still coming—

Mr Lawler : These are registered users on the system, people who have access. I think it is reflective of the fact that they are not valuing the access as they might have in previous times. That is reflective, I think, on the system. The other issue you raised was in relation to police ministers and where they might sign off on such an arrangement that Mr McDevitt has outlined.

The ACC will present to the Standing Council on Police and Emergency Management, I think at its November meeting, on the criminal intelligence model. So they will be briefed, after our board, as to the work that has been done. I have likened this, in a colloquial sense, to the standard gauge railway of criminal intelligence in this country. That is the sort of fundamental infrastructure change that we are seeing.

There is a question, even, about whether police ministers have the jurisdictional authority to commit to such a significant endeavour and whether there is a compact of some other nature that is required here to ensure that what the board of the Australian Crime Commission, and its 15 representatives, believe to be in the national interest, is actually set on very solid foundations. I think that is an important position going forward.

Senator NASH: I am a new kid on the block so bear with me if I ask a few not particularly stretching questions. Mrs Harfield, can you just explain Fusion to me?

Mrs Harfield : I can. In terms of the Fusion capability that we are developing within the ACC—within our purpose and function—the elements are about the identification of risk and threat relating to serious and organised crime for Australia. We take criminal intelligence, as well as data from other agencies, to help us understand what that threat and risk looks like. So, the Fusion capability looks at how that would relate to the model, in order to make good and responsible decisions about resourcing and not create duplication of effort, what you can do within the prioritisation cycle, in order to make choices about what threat and risk looks like and where you want to apply resources to that, in terms of what we already know.

There are a couple of other functions. In increasing the scope of what is already known—and that might be about the who, the what and the how; also the types of methodologies used by serious and organised crime networks as well as the vulnerabilities they are exploiting—we then specifically understand the requirements for the collection part of the intelligence cycle. So we then specifically go out and search for information through a variety of methods to fill that intelligence gap. The third element is about discovery. So, knowing what you do know, and going out and collecting what you do not know, then shows you what the new areas for discovery might need to be to pinpoint new and emerging risks and threats. So we do this type of work with many partner agencies, some of which are actually with us at the ACC working in the Fusion capability. Some partners are working on very specific pieces of work that are relevant to their areas and issues.

To give you a practical, non-policing example, if you think of information, intelligence and data as separate pieces of jigsaw that you empty out of the box, the job of Fusion is to create those into the picture, see what the picture tells you and then understand what you need to do to respond to it.

Senator NASH: Thank you. That is very helpful. Thank you very much. Mr Lawler, in your submission relating to tactical intelligence you say:

The ACC is now intent on measuring its performance in a way that reflects this role

that is the role you referred to before—

and which captures the value and impact ACC intelligence provides.

What will that measurement entail?

Mr Lawler : That is probably another very good question for Karen Harfield. Let me just say that a performance measure is a very difficult thing to do, particularly in the prevention context. How do you measure what you have prevented, and its impact? Everybody around the world who have such a mandate struggle with that mandate.

In the commission's context, some of the tactical measurements that we traditionally use, such as the number of people arrested or indeed in the number of information reports produced—quantitative performance measures—only tell a part of the picture. Indeed, there would be some who argue that a performance measure that actually stops victims becoming victims might be a much more powerful performance measure than actually measuring how many people might have been arrested and charged. The two cohabit together and must always cohabit together. The commission's focus has been on performance measure in that area of prevention and disruption.

Mrs Harfield : That is absolutely right. If I could give you at least one practical example of some of the work that we are currently doing with partner agencies. Partner agencies have lots of referrals. One of their issues is how to prioritise those referrals and how to decide which elements to investigate and which elements not to investigate, given any particular set of circumstances. The work that we are doing, particularly within the fusion capability, is about identifying vulnerabilities so that you can target hardened environments so that other people cannot exploit those vulnerabilities if you disrupt groups that have been exploiting them up until now. Therefore, the gap does not remain for somebody else to fill it behind them. The notion for that and what we are testing out is whether we can see a reduction in referrals as a result of target hardening an environment. That is quite a different perspective and context for our partner agencies.

The other type of issue is: can we develop risk profiles for our partners that help them better target what are known vulnerabilities and risks? An example of that might be working with a partner who has responsibility for, for example, on the ports searching cargo. Customs do a lot of this work themselves. But can you get the ratio of examinations and finds higher than it currently is? What that actually demonstrates is that your targeting methodology is improving over time. You may not cut down the number, but what you want is your success rate to improve. So we are looking at all those types of issues.

Moving out into a future space, what we would like to be able to measure is the reduction of risk over time. Currently, our improved picture of risk, particularly around understanding the 'who,' which Mr Lawler has already spoken about, actually being able to demonstrate that their capability to carry out serious and organised crime reduces over time. You would still want to combine that with traditional indicators because that goes, in part, to their ability to commit future crime. But there is actually quite a lot of ongoing work in those arenas. But we see that it is a much broader perspective than currently.

Senator NASH: Mr McDevitt, previously you were talking about tracking information in terms of contribution of where that information had originated. One issue that has arisen is obviously around privacy and integrity. But if you step into the brave new world and there is this national collection in some way, shape or form and information goes in that is then disseminated, if it is subsequently determined that that information is incorrect, how do you pull it back out again?

Mr Lawler : What we deal with is intelligence, and intelligence is assessed on the so-called admiralty scale. It is not just the ACC that does this; this is a globally recognised process for assessing information and determining its likely veracity. Some intelligence will be A1 in that it can be corroborated, it might be sworn testimony and it might have very high levels of authenticity and reliability. Then other information that might come from a single source that is unknown will be of a much lower quality and be much less reliable, and we are likely to have everything in between that.

The purpose of the intelligence process is to use that information and build upon it so that it produces an assessment or a judgement—a professional judgement—undertaken by professional intelligence analysts that goes to inform. In some ways, it is not a matter of absolute truthfulness or absolute inaccuracy. These are assessments that are made based on a variety of pieces of information by professional people to say that in our professional judgement we think X or Y. That is how the intelligence process works in a very simplistic form. If you needed experts in this field, I am sure they could do it more eloquently than I can.

Senator NASH: I suppose that what I am asking is: if it were subsequently determined—this may not happen in the nature of how you have described the information going in—that some of that information may have been wrong, perhaps some of information at the lower level of that spectrum, how do you rectify that? Does that ever happen or is that not likely to happen? Do you understand what I am saying?

Mr McDevitt : It would happen. Some people define intelligence itself as being what lies between knowledge and established fact. We are dealing with a lot of unknowns—that is the currency. As Mr Lawler said, the beauty of the model and of things like the fusion capability is that you are constantly seeking additional intelligence and corroboration which will then strengthen the product you have got and allow you lady to make further decisions and remove more uncertainty. Really, we are gathering this for the purposes of assisting decision makers to make better decisions because they have got a broader suite of intelligence. The ratings systems are very useful for them in that they allow them to make very informed judgements about the sort of weighting that I would attach to a particular piece of intelligence.

Mr Lawler : If we had intelligence about X that was circulated to agencies and that was subsequently found not to be supported by the facts or was inaccurate a further report would be circulated to say that that is untruthful or that has been discredited or whatever the case may be.

Senator NASH: That is what I was after. That is great. Thank you. In your submission, with regard to the legislation, you talk about there being several challenges that continue to limit the ACC's ability to share valuable intelligence with its partners. I also note that, in relation to the first document you tabled, legislation is part of that jigsaw pathway across to the future state. Currently what are the challenges and, in terms of the pathway to the new world of this national approach, how do you see legislative requirements fitting in?

Mr Lawler : The legislative challenges are multifaceted. Some of the legislative challenges actually start within the commission itself and some of the legislative challenges have a very sound basis. Of course, the commission in the exercise of its powers—we have very intrusive powers that have been entrusted to us by parliament—has constraints on whom that information can be shared with. There are very strict legislative arrangements in place. I would like to give the committee, if I could, a sense of the legislative constraint within the commission itself.

I am not saying that this is inappropriate constraint; I am just saying that this is the totality. With your agreement, Chair, I will table a 21-page draft disclosure checklist, which is a checklist in relation to the fact that each piece of information that leaves the commission has to be completed and signed off. It takes into account the multitude of various acts and provisions that have to be considered and what the implications of those provisions are before information can be disseminated to our partner agencies.

CHAIR: Could you just pause there. Is this document protected?

Mr Lawler : It is protected after the first entry, so after it is filled in, but it is for official purposes only.

CHAIR: Okay. I formally accept the document 'ACC information disclosure checklist and record of decision'.

Mr Lawler : That is just to give you a context of how the legislation interfaces with the practical application of what the commission is required to do and does do, so there you have it.

We also see legislative challenges between agencies at the Commonwealth level, where, for example, particular evidence or intelligence gathered in particular ways cannot be shared with other Commonwealth agencies because of legislative constraint. The telephone interception act is one such example. We appeared before the Parliamentary Joint Committee on Intelligence and Security this morning and gave them a case study where information that, in my view, was very relevant to another Commonwealth agency in the performance of their function could not be provided to them and about whether that was an optimal situation to be in.

And then, as Mr McDevitt has indicated, we have within the state context different legislative regimes around privacy, freedom of information and other legislative constraints that they have that can cause difficulties when we come to sharing between the states and the territories. It goes to the point of whether the board can give absolute effect, given some of the legislative constraint that some board members find themselves under.

So, whilst there has been some very good work done by the department over a number of years in looking at these legislative impediments and working to eliminate them where it was possible to do so, the reality is that some still remain, and it does inhibit the sharing of information.

Senator NASH: You refer in your submission to the current difficulties you have in accessing information and intelligence held by others. What are those difficulties, and is the proposed model going to address those difficulties?

Mr McDevitt : The difficulties are multifaceted. The issues associated can probably fall into three different realms. One is the technology and the technical issues associated with actually connecting databases and getting a flow of information. Generally they are probably the easier ones to resolve. There are lots of very smart IT people out there who can do this; albeit issues of interoperability, data standards and so on are a big part of that.

The second area is around the policy and legislative constraints that we have spoken about. One way you might look at it is that, if criminal intelligence were an asset and were managed as an asset, then perhaps you might have specific legislation around the management of that as an asset in its own right in terms of how it flows around the country. At the moment, the issue of dissemination of intelligence and collection of information and so on falls under a very, very broad array of different legislation.

I can give you just a couple of examples which I think might hit on the mark. Up in Queensland where I work, the ACC have been seeking access to information which belongs to Queensland Corrective Services. That is information around prisoner population names and details around that, which, from a national intelligence perspective, is quite valuable and quite an important asset to have and to be aware of and can directly affect decisions for a number of agencies. The reality is that Queensland Corrective Services advise us that, under their privacy legislation, this sort of information is classified as personal information, which requires specific permitted uses for that information and really significantly restricts the use to which the ACC can put that information in terms of passing it on to others, incorporating it into our intelligence products and so on. So there is just one example.

Of course, the legislation created for particular agencies in managing their own functions, when looked at in isolation, is eminently sensible and appropriate, but when you are trying to create these national pictures it becomes actually quite difficult because of the various constraints.

Senator NASH: Thanks, Mr McDevitt.

CHAIR: We might break and go in camera shortly. Northern Territory police were not exactly entirely complimentary when they were saying that the ACC is almost entirely dependent on law enforcement agencies supplying it with intelligence and, in turn, all they can get out of it is what they put in. Is that an unfair criticism?

Mr Lawler : That is one perspective.

CHAIR: I hate to ask: did that ever get raised around the ACC board table?

Mr Lawler : No, it has not been raised with me. But the reality is: can the commission do better with its information sharing and collection analysis? I do not think there is any doubt that we can. We are trying hard to do that, but we have a range of challenges—one of them which you see here, our legislative regime, quite properly—which some jurisdictions may not understand. They might know that we have the intelligence and might want it but not be familiar with the sorts of processes that we are required to go through under Commonwealth law and that we do go through as we lawfully must. That can create tensions, of course, with some partners that do not fully understand that complexity. So part of our challenge has been an outreach to those jurisdictions to try and inform them about the commission and the commission's work.

The reality is that in our federation we absolutely need this in the national good. A crime, as we have said before, does not restrict itself to the Northern Territory or any other jurisdiction. We have had multiple examples where we have done matching of intelligence around jurisdictions to find that, in fact, many jurisdictions hold information on the one particular issue, and some of that is captured within our national intelligence systems and some is not. You do not have to think about that for too long to understand the vulnerability and risk that that presents to the community.

CHAIR: There is one further thing. In the first submission this morning, from Civil Liberties Australia, they have raised concern, as they have on previous occasions, about the coercive powers of the ACC. In particular, their criticisms are expressed in respect of the New South Wales Supreme Court hearing. I know that that matter is on appeal, but, whilst that is pending, has there been any change in the way that the ACC conducts its coercive operations?

Mr Lawler : Yes, there has, unfortunately. Can I start off by just setting some context around the coercive hearings. Indeed, the commission is one of 22 Commonwealth agencies that has coercive hearings. People are very surprised to hear that, but that is the truth, as I am advised.

We find that criminals, often in concert, represented by singular counsel—multiple organised criminal groups, particularly outlaw motorcycle gangs—are challenging the commission's coercive powers.

The truth is that they do not like the coercive powers. The coercive powers are a way of breaking their business model, and they do whatever they can to try to thwart that. Part of that is through challenges through the court. The commission is no stranger to appearances before multiple courts in this country, including the High Court on a number of occasions. Indeed, the use of the coercive powers around people who have already been charged has been settled by the High Court and certainly the full Federal Court, and, I understand, leave to appeal was rejected. So it is very clear as to how the commission can use its powers after someone has been charged.

The particular matter that you refer to—the Seller-McCarthy matter—is, as you say, before the courts, so I do not want to be drawn too much into the specifics of that particular case. But I will make a few broader comments, if I may. They go to what has been well-established practice for many, many years by a range of agencies around the country in the use of coercive powers before people have been charged. Indeed, it has been well accepted—and strong legal precedent and legal authority—that what the commission had done in the Seller and McCarthy case in subjecting people to coercive hearings and the derivative use of that material was well-accepted, lawful practice.

The current judgement of the Supreme Court in New South Wales puts that whole way the commission and others have operated now for many, many years into question. It will be subject to the appeal processes and the rulings of the courts. But I can say that it has disrupted the commission's activities. We have had to respond to that ruling by the Supreme Court. It has the potential to have significant ramifications on matters where coercive hearings have been used in such a manner, both historically and in the current context. We have had a number of agencies that have now withdrawn hearings that they wanted us to undertake on their behalf because of this decision. Indeed, the matters that we are advancing with we are doing so with a very clear mind to the sorts of issues that have been raised in the Seller and McCarthy case, and we will await the court's decision in relation to that.

Evidence was then taken in camera but later resumed in public—