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

BUDAVARI, Ms Rosemary, Co-Director, Criminal Law and Human Rights, Law Council of Australia

GAME, Mr Tim, SC, Co-Chair, National Criminal Law Committee, Law Council of Australia

[15:18]

Evidence was taken via teleconference—

CHAIR: I welcome Tim Game and Ms Rosemary Budavari. I think both of you appeared the last time we had an inquiry—is that right?

Ms Budavari : That is correct.

Mr Game : Yes.

CHAIR: We have received your submission. It is marked number six. We are sitting as a subcommittee at the moment, because one of our members has left. I have Senator Fiona Nash with me, who is the Deputy Chair of the committee. So you only have two of us here; it could have been quite an intimate conversation if you were here in person! I invite you to make an opening statement, and then both Senator Nash and I will have a few questions for you.

Mr Game : Thank you. We do not pretend to understand all the ins and outs of intelligence sharing, and we have made some of the points in our written submissions, but we do want to emphasise the need for an overall rule of law perspective on this and we would like to draw out a few of the implications of the kind of scheme for intelligence sharing that is established in section 59AA of the ACC Act.

To put it briefly, if you create special powers in one place and you have intelligence sharing provisions such as 59AA, then the special powers get carried over to the other institutions that receive this information and the protections that sit in place in the ACC Act such as under section 25A which prohibit publication really fall away in their effectiveness. So you have a non-disclosure regime in place in this legislation, yet your disclosure is unlimited in terms of what other regimes will apply in other pieces of legislation once you release the information.

One area that concerns us perhaps the most is the extent to which the material ultimately finds its way into the hands of prosecuting authorities, and this is a situation which is arising more and more frequently. Once the material lands in the hands of prosecuting authorities then you have implications for the right to silence and privilege against self-incrimination in respect of extant proceedings. We see provisions such as section 30 as not providing an effective form of protection. What section 30 provides is use immunity. It does not provide any derivative use immunity but, perhaps most importantly, it does not deal at all with the situation of the prosecuting authority having in its hand the evidence of what the accused person is going to say. They may not be able to tender it into evidence but they can use it in a particular way in the sense that they have an understanding of the defence case. At that point you have changed the adversary system.

That is a pretty long opening statement but that, broadly speaking, is our perspective on this. As I said at the beginning, we do not pretend to understand all the ins and outs of intelligence sharing.

CHAIR: I think that is a pretty fair summation that you have made of it. As a matter of fact, it is very close to the concerns that Civil Liberties Australia mentioned this morning. They saw the principle of the application of criminal law by police and law enforcement bodies, if they have the necessary information, to prosecute the people they consider to have committed a crime. We sort of got notionally silent when we got down to talking about whether, if the real aim of contemporary policing is to disrupt and dissuade criminal activity, that information may be valid to ensure a crime is not committed, and if a crime is not committed then you do not have a victim of the crime.

Not many defence lawyers talk to me about those sorts of things but if you are, as we are, representing communities, first and foremost we are trying to ensure that our communities are safeguarded. To that extent, most of the policing submissions are very much about how you go about preventing and disrupting crime.

Mr Game : Understood. The problem is not an uncommon one in the law-enforcement world. In some European countries such as Holland, they have two lots of police—they have intelligence police and investigative police, and the twain never meets. It is difficult to draw the line, but we have police who investigate in the sense of preparing cases for court and producing evidence to prosecute people. Clearly enough a line has to be drawn as to what information they get that is, shall I say, criminal intelligence. That is really a line to be drawn by people such as you. Our fundamental point about this is that if you let one seep into the other excessively, it does have real implications on the kind of system that we have for prosecuting trials. I guess all we are trying to do is bring it to the fore so that you see clearly—it sounds as though you have already seen clearly without our help—how this does affect our adversary system in a real way.

Provisions such as section 25A are great in the hands of the examiner, using 25A to limit publication, but 25A is a very leaky sieve when you have other means by which you disseminate the information. And 25A has not operated to prevent intelligence actually landing in the hands of prosecuting authorities—and not just as evidence but as something for them to have in their mind's eye as they prosecute the case. That strikes us as inimical to a proper trial process.

There are conflicting purposes, but we do try to keep our system as transparent as we can. For example, we try to keep the investigation of terrorism offences, to the extent that we can, within the confines and structures of the ordinary rule of law. It is a struggle to do so because of the challenges that these offences produce. All we are saying is, let us try as hard as we can to steadily keep that in mind and maintain rule of law principles and qualify them to the absolute minimum that is required. I mean no criticism at all of law enforcement witnesses who give evidence to you about these things, but what I just put to you is not their perspective. You have to get the rule of law perspective from somewhere, and I suppose the Law Council is as good a place as any. We probably sound like a broken record because we do hammer the same message all the time. I do not know whether I have answered your question.

CHAIR: Mr Rowlings made his submission this morning for Civil Liberties Australia. One of the responses I had was that nobody can afford in public life to have terrorist acts occur on their watch, and hence probably in 2001 we became far more vigilant in terms of how we go about detecting, disrupting and preventing that sort of activity.

Now, probably that same notion, over the past decade or so, has become front and centre in contemporary policing, if you talk about protecting a community. People have remonstrated with me in the past in terms of the appropriate application of criminal law. They say that following an offence if there is evidence and a prosecution can be developed then the courts will do their bit. However, for us it means that for a crime to be committed, one thing is absolutely certain: there is a victim to a crime.

Mr Game : We do not quibble with any of that. We see the system being compromised—or being challenged, shall I say—when you have big court cases where, day after day, authorities are saying, 'You, the accused, cannot see the material we are relying on against you.' Or there are encroachments in that area where we hear, 'You the accused, cannot see this material that has been subpoenaed,' and so forth. It is a huge challenge to the system. But the best course is to try and find a way in which one can be as transparent about it as possible.

We know that there will have to be compromises reached. And we know that you cannot, on your watch, be seen, or desire in any sense, to do less than everything necessary to prevent terrorist acts. I guess we are saying, that that is fair enough, but try, to the absolute limit, to limit the compromise of the system of law that we have, which is worth cherishing and works pretty well.

CHAIR: This very matter probably goes to the heart of the New South Wales Supreme Court ruling not all that long back. I understand that is under appeal.

Mr Game : It is under appeal; yes. There are several cases under appeal one way or the other at the moment. But what I mentioned before is a problem.

I would like to mention this. There seems to be an assumption in parliamentary drafting that these provisions that deal with use and derivative use are the be-all and end-all and that they answer all the problems. They do not actually deal with the serious issue, which is what you say about the fact that the prosecution is in possession of the defendant's account. Similar forms of this legislation appear in a number of different pieces of legislation. They appear in the Companies Code; they appear in the ACC legislation; they appear in the ASIC legislation. So we have a number of different examples of them but they are not the be-all and the end-all and they do not necessarily work particularly well. Whether it is the work of this committee or others it is something that really requires a very close look.

The other thing that we are concerned about is accused people not knowing what evidence or material is possessed by the authorities and if it is to be used in particular ways: the introduction of ideas such as they use in England, such as 'gisting'—making people aware in a general sense of what the allegations are against them.

These are large problems but from our perspective it is very illuminating in how many different places these problems are coming up. Because of the growth of these investigative authorities these problems are becoming the legal problems that we have to deal with.

There really needs to be a systematic approach to dealing with it.

CHAIR: England has moved in certain directions to deal with that. They have moved to put limits on the right to silence and things of that nature—for the very same reason, I suspect.

Mr Game : Yes. That is about all I can—

CHAIR: Am I right to say that your concerns are mainly in relation to information gained by coercive means?

Mr Game : Absolutely, yes.

CHAIR: Do you have a view on the production of a more efficient national repository of criminal intelligence?

Mr Game : We think that is a good idea. There should be a national repository where the information is collected once. Once it is collected, its use and who it can be distributed to should be identified. We think that is a laudable aim and one which should be worked towards.

CHAIR: That is the bigger aspect of all this—trying to achieve that and how we do that in the most efficient way, without duplication. Collecting information once and using it possibly many times, if we are serious about preventing and disrupting crime, seems to be the thing to do.

Mr Game : Yes. It is also important to have a keen understanding that there are always flow-ons. If, for example, you release information to one authority, then your sieve is as leaky as that authority is. You need to understand that and see that limitations in one piece of legislation are not going to operate when you jump over to another piece of legislation.

CHAIR: We will have to go down that route. As the Commonwealth is currently going through and resetting its national security requirements, presumably any partnering organisations accessing that intelligence would have to be on the same security settings.

Mr Game : Yes. I am cutting myself short. I am not sure I have much more that I can—

Senator NASH: The chair has covered pretty much what I was going to follow up. But early on you said that information was getting into the hands of the prosecuting authorities—that that was occurring more and more frequently. What evidence are you basing that observation of increased frequency on?

Mr Game : I and other people I know are involved in cases about this. There have been a number of them. There was OK in the Federal Court. There was MP and CB, in which I appeared for the Commonwealth. There is a case called Lee in New South Wales in which I am currently appearing for the individuals. There is a case called Sellers, which is going on appeal. It is not just a coincidence that all of these cases are happening at the moment.

Senator NASH: So it becoming more evident to you—

Mr Game : It is becoming a subject of litigation. That is the thing.

Senator NASH: To clarify—that is specifically this issue of information being passed on to a third party, where you believe it should not be, who is then utilising it.

Mr Game : That is right. I am not talking it up; it is a real life problem.

Senator NASH: Not at all—I just wanted to clarify my understanding of it. Thank you.

CHAIR: On information which has been gathered—do you have views about whether, provided the necessary security regime is maintained, the information should be subject to free flow amongst those partnered groups?

Mr Game : That depends. This is the thing I do not pretend to know about. You should not release information to authorities which do not have that form of investigation within their purview.

You should not be releasing to, say, a tax authority information that touches on aspects of intelligence concerning taxpayers if it does not have a revenue content. I have said several times that I am no expert on the subject, but I do think that you need to define the class to whom you release information in terms of what the nature of that investigative authority is and what its particular mandate is.

CHAIR: So you are saying this could not go from a partner group on a fishing expedition through the national repository of intelligence?

Mr Game : That is right. You have to find a way of working out how you control the release of that information.

Ms Budavari : Our submission certainly looks at section 59AA of the Australian Crime Commission Act and I do not think we have a problem with the framework of that section. It nominates the organisations to whom the information can be released and for what permissible purposes. We have a problem with the scope of that, but we would support the framework of that machinery. The problem with some of the submissions is that they appear to want to go beyond that.

Mr Game : We would say that your committee needs to find a way of auditing how section 59A is working, to understand how it is actually playing out. That is about it.

CHAIR: Thank you very much. I am disappointed you were not here in person, but—

Mr Game : We were going to come in August but you had to put it off.

CHAIR: We poor politicians are cringing; you have avoided us twice! We look forward to seeing you in due course. We may as this progresses have occasion to come back to you and run a couple of things past you if that is okay.

Mr Game : Not at all.

Ms Budavari : Thank you very much.

Committee adjourned at 15 : 42