|
Navigation: Previous Page | Contents | Next Page
Chapter 6
A holistic and harmonised approach to serious and organised crime
6.1
Throughout the inquiry the committee heard that there is no single
solution to the problem of organised crime. A number of experts highlighted
that strong and targeted legislation needs to be supported by a range of
broader law enforcement strategies. The Attorney-General's Department's submission
noted that:
...legislation specifically targeting serious and organised
crime groups is only one of the possible approaches to combating such groups...it
is noted that intelligence, investigative and operational capabilities and
collaboration, both nationally and internationally, remain vital to addressing
criminal networks.[1]
6.2
Similarly, the Australian Crime Commission (ACC) noted in its
submission:
Legislation alone may not effectively deal with the ongoing
threat posed by serious and organised crime. It is only one aspect of the law
enforcement approach to organised crime groups. It is vital to also retain a
focus on ongoing development of responses to the actual crimes, and to ensure
that any legislative response is consistent with structures, focuses and
responsibilities of law enforcement agencies. Intelligence collection,
information sharing and development of knowledge is fundamental to combating
serious and organised crime.[2]
6.3
In particular, the committee heard that the development and
implementation of association offences should be considered as part of a suite
of tools available to law enforcement agencies. Deputy Commissioner Ian
Stewart, from the Queensland Police Service told the committee:
I would like to stress that the development and introduction
of anti-gang legislation is only one part of the law enforcement response to
targeting serious and organised crime groups. We must strive for continuous
improvement in investigations, using forensic evidence gathering and analysis,
intelligence, collections and information exchange within law enforcement
agency and government networks. The effort to collect and further develop
intelligence with respect to significant crime issues and criminal networks
from the national perspective is strongly supported by the Queensland Police
Service.[3]
6.4
Similarly, the Government of South Australia, in its submission also
noted the need for a holistic approach to serious and organised crime:
The South Australia Government’s current legislative reform
program provides a holistic approach to serious and organised crime by
targeting the associations of and between members of criminal organisations,
enhancing criminal laws relating to organised crime activity including public
violence, drugs and firearms as well as targeting unexplained wealth and assets
of these members.[4]
6.5
While the previous chapters of this report have canvassed the key issues
set out in the inquiry's terms of reference, the inquiry also identified
further administrative, policy and legislative approaches critical to supporting
Australia's response to serious and organised crime. These include:
-
a coordinated law enforcement approach through:
-
improved information and intelligence sharing arrangements;
-
improved international partnerships;
-
a supportive suite of law enforcement capabilities; and
-
adequate levels of resourcing.
6.6
In developing effective strategies for combating serious and organised
crime, Australia must take a holistic and coordinated approach. This chapter
highlights the issues which the committee believes should be considered in
conjunction with any legislative developments in the areas of association and
unexplained wealth.
A coordinated approach to serious and organised crime
6.7
Chapter 2 discussed in detail the nature of serious and organised crime
in Australia, and identified that crime does not respect domestic or
international borders. As the ACC noted in its submission, serious and
organised crime is increasingly sophisticated and is beyond the capacity of a
single jurisdiction to disrupt and dismantle:
Reducing the harm caused by serious and organised crime is a
complex composite of policy and intelligence issues that are beyond the capacity
of any one jurisdiction or agency.[5]
6.8
The Attorney-General's Department also argued that, as law enforcement
responsibilities are divided between the Commonwealth and the states, there is
a need for coordination and cooperation in order to develop an effective
national approach:
In our federal system of government, law enforcement responsibilities
and interests overlap, so national coordination and cooperation between the
Commonwealth and the states and territories is vital. In considering the
possible legislative approaches to serious and organised crime groups in
Australia, we also need to be mindful that this is a complex problem that
requires a multifaceted approach.[6]
6.9
A national coordinated approach to serious and organised crime was
widely supported by all the law enforcement agencies. In his submission, the
Hon Jim Cox, Minister for Police and Emergency Management, Tasmania, noted
that:
Due to the ease in which serious and organised criminal
groups operate across borders, it is advocated that a co-ordinated national
approach will be the only effective strategy. Consequently, my department
supports the development of a national response following appropriate
discussions which strengthens the ability of all Australian law enforcement
agencies, including the Australian Crime Commission (ACC) and other
Commonwealth agencies to respond to serious and organised crime groups.[7]
6.10
Mr Christopher Keen, the Director of Intelligence of the Queensland
Crime and Misconduct Commission (CMC), told the committee about the
multi-jurisdictional nature of serious and organised crime in Queensland. He also
noted the importance of taking a coordinated law enforcement approach to
combating organised crime, and of the crucial role of the ACC in that approach:
The other aspect that is generally well accepted is that
Queensland crime is not just Queensland crime. It transcends borders, you move
between states and also overseas. When you start looking at those sorts of
aspects, it is one of the reasons why law enforcement needs to be very much
coordinated and linked into both interstate and overseas agencies and federal
agencies. That is where the Australian Crime Commission plays a major role
because we need to be able to have that coordination and those links with other
investigative agencies.[8]
6.11
Similarly, Mr Neil Jensen from AUSTRAC noted the importance of the ACC
in coordinating the efforts of a range of agencies in regard to serious and
organised crime:
Joint task forces that are set up under the ACC are
significant. Certainly the use of the powers that they have available to them
can assist us, even though they may not be directly related to us. Those powers
might enable them to find further information, associates, what is happening
with transactional activity, and what is happening with drug activity. We can
then go back to our database and provide them with further information. I think
the importance of the ACC is linking together a number of agencies, including
us, but also understanding what we are doing and where we are going.[9]
6.12
The committee notes that the ACC was established to bring together and
support all Australian law enforcement agencies and develop a coordinated focus
on nationally significant crime. It does this via its statutory criminal
intelligence and investigation functions. The ACC notes:
Our purpose is to unite the fight against nationally significant
crime.
As an agency we provide intelligence, investigation and
criminal database services. We are a flexible and dynamic organisation and
change our work priorities to adjust to the ever changing criminal environment.[10]
National priorities
6.13
The significance of lead agencies such as the ACC in Australia, the Criminal
Intelligence Service Canada, and the Serious and Organised Crime Agency (SOCA) in
the United Kingdom, [11]
is that these organisations can collate intelligence to produce a national picture
of the nature and threat of serious and organised crime. In Australia, the ACC
produces both the National Criminal Threat Assessment and the Picture of
Criminality. This national picture informs law enforcement priorities and
assists in the development of appropriate responses to serious and organised
crime. The committee was told that:
Both the National Criminal Threat Assessment and Picture of
Criminality in Australia, undertaken by the ACC, assist to develop a better
national understanding of the significant crime issues as well as improving the
ability to undertake coordinated law enforcement action against identified
high-threat crime networks possessing transnational and cross-jurisdictional
capabilities.[12]
6.14
Mr Kevin Kitson from the ACC noted that the production of national
intelligence on serious and organised crime is an evolving process, which over
time is becoming more comprehensive and therefore more useful:
I referred earlier on to a maturing process of understanding
and working with our partner agencies. What we have seen, particularly over the
last three to four years, is a much greater understanding of what it is that we
are looking at...I think that we as a community are now getting better generally
at understanding the nature of the problem and in dealing with some of its more
serious manifestations.[13]
6.15
Mr Michael Outram from the ACC highlighted the value of nationally
targeted priorities based on risk assessments in assisting law enforcement
agencies to target serious and organised crime in a coordinated and prioritised
manner:
I should say also that there is a coordination occurring
across the states under the Australia and New Zealand Police Advisory Agency
that was recently established by the state police... The police commissioners
have asked for ... a national triaging system, if you like, to determine which
groups and individuals represent the highest threat nationally so that we can
agree between the states and the Commonwealth on the targets we should take on,
based on an agreed risk-threat assessment methodology, so that everyone is
actually on the same page.[14]
6.16
The committee commends this approach and was concerned to hear that, at
times, jurisdictional particularities can take precedence over the implementation
of the national priorities identified by the ACC Board.[15]
Mr Kitson explained that:
The ACC’s mandate includes the responsibility for developing
a set of national criminal intelligence priorities, which we recommend to the
board each year and which the board makes its own commentary and adjustments
on. That has some impact over the menu of work for the ACC but, arguably, it
does not have particularly significant influence over the work of the
jurisdictions and the level of resources that are focused nationally towards
those nationally identified criminal intelligence priorities.
We would recognise that in each state and territory there are
peculiar challenges to law enforcement, there are different political pressures
and there are different natures of criminality. But I think we would be more
effective dealing with some of the national challenges that are before us if
there was a flow-down effect, a cascading effect, from those national criminal
intelligence priorities across the resourcing commitments of the state and
territory jurisdictions, particularly in terms of gathering information and
intelligence to fill those gaps in our knowledge.[16]
6.17
The committee recognises that, as with all government agencies, law
enforcement agencies operate in a political environment with finite resources.
However, direct political involvement in the redirection of national priorities
diminishes and undermines the value of an intelligence lead agency, such as the
ACC, to set national priorities on serious and organised crime. The committee
is concerned that the value of the national threat assessment and picture of
criminality will be diluted by increasing political involvement, at all levels
of government, which redirect both law enforcement priorities and resources to
areas outside of the national priorities.[17]
6.18
The continued ability of the ACC to be a truly national agency to unite
the fight against nationally significant crime requires that the ACC Board set
the national criminal priorities, and that those priorities be accepted
nationally.[18]
In addition, the committee strongly believes that the ACC needs to be
adequately resourced to ensure that it can continue to support its partners in
their execution of the national priorities, and that the ACC's jurisdictional
partners must continue to give due support to the national criminal priorities.
The committee is concerned that there is a perception that this may not be the
case:
...it is reasonable to anticipate a diminished or diminishing
capacity of the Australian Crime Commission to deliver support to Western
Australian police in light of competing national priorities and budget
pressures. The proposed state based legislation will ensure that the Corruption
and Crime Commission of Western Australia will be able to support Western
Australian police in meeting the serious and organised crime challenges
specific to Western Australia.[19]
6.19
The committee urges Commonwealth, state and territory governments and
law enforcement agencies to continue to work together to ensure that the ACC
has the necessary information, resources and support to develop a national
approach to serious and organised crime.
Harmonisation of legislation to
tackle serious and organised crime
6.20
The value of harmonising legislation to more effectively tackle serious
and organised crime was raised throughout this inquiry. Commissioner Andrew Scipione,
from the NSW Police Force, told the committee that:
It would be difficult to mount an argument to suggest that we
would not look at trying to harmonise on the basis of getting maximum
effectiveness, and that is what it is all about at the end of the day. It is
trying to put a regime into place backed by legislation that allows us to best
control and minimise the effect of serious and organised crime across the nation.[20]
The need for harmonisation
6.21
The committee heard that the lack of legislative coordination and harmonisation
undermines law enforcement strategies and causes displacement of criminal
activity to the jurisdiction with the weakest legislation and law enforcement
tools.[21]
I guess it is a ‘weak link in the chain’ type philosophy,
where people will look for the easiest opportunity to exploit the laws of the
state or the land to go about their criminal enterprises and activities.[22]
6.22
A significant amount of evidence was taken on the potential for
displacement of serious and organised crime groups from one state to another
when legislation and law enforcement approaches are not harmonised across
jurisdictions. It was argued that criminal activity will more readily occur in,
or that individuals involved in criminal activity will locate themselves in,
those states which are considered to be less hostile to serious and organised
crime. Chapter 4 discussed this issue as a possible consequence of the South
Australian anti-association laws. The South Australian Government told the
committee that as a result of South Australia's strong law enforcement reform
process, displacement of organised crime was viewed as a
legitimate outcome.[23]
6.23
The ACC highlighted the potential for the displacement of organised
criminal groups across jurisdictions as a result of fragmented legislative
reform, and the possibility of intelligence gaps resulting from this
displacement:
Displacement of criminal activity is a potential consequence
of legislation to outlaw serious and organised crime groups. Legislative reforms
targeting criminal groups may lead to shifts in the dispositions and activities
of some criminal groups or the displacement of criminal activities to new
locations, new targets or other crime types. Displacement of criminal activity
generally creates new intelligence gaps for national law enforcement, albeit
sometimes for a relatively short period. Anticipating legislation that will
effectively outlaw OMCGs in South Australia, there are indications that some
outlaw groups have already relocated to other jurisdictions.[24]
6.24
AUSTRAC, in its submission, also raised the potential for displacement
of criminal activity as an unintended consequence of any legislative reform:
The ACC note in their submission to the Committee that there
is a risk of displacing criminal activity and driving crime syndicates
underground as an unintended consequence of legislation to outlaw serious and
organised crime groups. From our perspective as Australia’s FIU, we agree with
this assessment. This risk and the associated repercussions for law enforcement
and intelligence need to be weighed carefully when considering the overall
impact of legislative solutions of this nature.[25]
6.25
The committee also heard that the lack of consistency in legislation
between jurisdictions has administrative implications for law enforcement. As
Detective Superintendent Paul Hollowood from Victoria Police highlighted for
the committee:
Probably the biggest challenge we face in tackling organised
crime across the board is interoperability between the jurisdictions.[26]
6.26
The Australian Federal Police Association's submission highlights some
of the administrative challenges arising from this lack of legislative
consistency. These include barriers to information-sharing and extradition,
when different rules apply in different jurisdictions regarding obtaining
evidence.[27]
The lack of legislative consistency creates problems for cross-border
investigations. The Commonwealth has recently introduced a Bill which, if
emulated by other jurisdictions, would resolve many of these difficulties. That
Bill, and the harmonisation process, is discussed at paragraph 6.33 below.
Challenges in achieving
harmonisation
6.27
Despite the identified concerns, harmonisation of legislation in the
area of serious and organised crime appears to be difficult to achieve. The
inquiry identified a number of reasons for this, such as: the federated nature
of law enforcement in Australia; the different law enforcement, cultural, and
social issues of each state and territory; and the different political
priorities of individual governments.
6.28
The Commonwealth's constitutional framework also presents difficulties
for the development of nationally consistent legislation, as officers from the
Attorney-General's Department identified:
However, clearly it was difficult enough with terrorism to
put a constitutional framework under it, and to actually have a general law
like you have in the South Australian law would, of course, be much more
difficult constitutionally. No doubt it would be a patchwork type outcome, which
is not always good for law enforcement if there is uncertainty about what the
coverage is.[28]
6.29
A number of witnesses identified different jurisdictional law
enforcement issues and priorities as a barrier to standardising legislation,
despite the potential benefits for law enforcement:
Standardising any law makes it easier to police and makes it
easier for the public to understand what the law is. But, whilst standardising
law is a great concept, it is not easy for each state to adopt standardised
laws. We have a number of standardised laws anyway. Whether they are for road
rules or crimes, they were all based on the Westminster system anyway. It is
just different laws for different states dealing with different problems.[29]
6.30
The differing politics and priorities of federal, state and territory
governments was identified as contributing to the development of a fragmented approach
nationally to serious and organised crime. The establishment of the national
DNA laws was frequently cited as an example of the complexity of achieving legislative
harmonisation in Australia's federated system:
I was involved in a project to develop uniform DNA laws. Even
though people were trying, it took a long time for the states and territories
to get to a point where we had some consistency between them...One of the reasons
it takes a long time—we certainly found it with DNA and we will probably find
it with this too—is that the individual parliaments themselves have a different
tolerance of how far the laws should go... That was quite a good example of how
it takes some time to get consistency and how it is a very difficult process.[30]
6.31
As noted earlier, the committee acknowledges that each state and
territory has different law enforcement issues and priorities. As Acting
Commissioner Hine told the committee:
It is one of those things where you would do a risk based
assessment or an assessment of what is going to suit your community and what
issues you are actually dealing with in your state or jurisdiction. We are not
facing the same issues that South Australia are obviously facing; therefore,
they saw the need to enact different legislation... We obviously do not have the
same problems that they do. It is a matter, again, of what your community
expects, what risks you are facing and what problems you are facing.[31]
6.32
However, considerable resources have been spent over an extensive period
of time to harmonise the law enforcement landscape in Australia, yet progress
in this area appears slow and piecemeal.
A huge amount of resources has been put into harmonising
laws. The federal government has pretty well implemented a model criminal code.
That has been implemented by the ACT, and other states have implemented bits
and pieces of it. It is quite a good example of how governments can work
cooperatively to put together good laws. At the same time, it is also an
example of how independent each of the parliaments is. I am not saying that the
area of serious and organised crime is not an area where we can work together
in the way we have with proceeds of crime and other stuff like that, but it is
likely to be an area where different jurisdictions will have different views and
it is not something that would be achieved quickly.[32]
Attempts to harmonise police
investigation laws
6.33
In response to the significant problems that police face in conducting
cross-border investigations, in 2002, Commonwealth, state and territory leaders
agreed to adopt harmonised, national laws dealing with cross-border
investigations covering controlled operations, electronic surveillance devices
and witness anonymity.[33]
6.34
The Standing Committee of Attorneys-General agreed to a set of model
laws on these issues in 2004. The model laws have currently been adopted to
varying degrees by the states and territories.
6.35
The adoption of the model laws by all jurisdictions would result in:
-
an authority for a law enforcement agency to conduct a controlled
operation to be recognised in other jurisdictions, making cross-border
controlled operations much simpler;
-
assumed identities acquired in one jurisdiction to be recognised
in other jurisdictions; and
-
a witness identity protection certificate issued in one
jurisdiction to be recognised in other jurisdictions.
6.36
The committee notes that the Commonwealth government recently introduced
the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009,
discussed in chapter 5, which seeks to implement model laws at the federal
level relating to controlled operations, assumed identities and witness
identity protection.
The intent of the model legislation is to harmonise, as
closely as possible, the controlled operations, assumed identities and
protection of witness identity regimes across Australia and enable
authorisations issued under a regime in one jurisdiction to be recognised in
other jurisdictions.[34]
6.37
Key aspects include:
-
Providing for protection from liability to informants who
participate in a controlled operation;
-
providing for recognition of state and territory controlled
operation laws;
-
extending the timeframes for controlled operations (although to a
lesser extent than under the model laws);
-
streamlining reporting requirements;
-
increasing the Ombudsman's inspection powers;
-
prescribing offences for the unauthorised disclosure of
information;
-
introducing a new assumed identities regime, which recognises
state and territory assumed identities;
-
expanding the class of people who may be authorised to assume
identities to intelligence officers and foreign law enforcement officers;
-
introducing a new witness identity protection regime which
recognises state and territory witness protection laws; and
-
introducing offences for the unauthorised disclosure of protected
witness' identities.[35]
6.38
The committee commends the Commonwealth for its work to implement the
model laws and encourages all state and territory governments to give proper
consideration to the implementation of the model laws.
The importance of political will
6.39
A national approach to serious and organised crime based upon national
priorities and legislative harmonisation is dependent upon political will.[36]
The committee notes that the senior law enforcement officers with whom it met
were all cognisant, if not vocal, about the importance of political will to
remove or minimise identified legislative and administrative barriers.
Having nationally consistent laws in relation to anything is
obviously going to be an advantage, again, to the public and to law
enforcement, but again it comes down to the level of risk that you have within
your community, the level of laws governing your community and what your
community is going to accept... I hear your question. It is probably more a
question for your side of the table than for this side of the table...[37]
6.40
The committee notes consideration is being given to the development of
model legislation to provide a nationally consistent approach to addressing
serious and organised crime through the Standing Committee of Attorneys-General
(SCAG) and the Ministerial Council for Police and Emergency Management – Police
(MCPEMP).
6.41
SCAG is comprised of the Attorneys-General of each state and territory,
the Attorney-General of the Commonwealth and the Attorney-General of New
Zealand. It provides a forum for Attorneys-General to discuss and progress
matters of mutual interest. SCAG seeks to achieve uniform or harmonised action
within the portfolio responsibilities of its members. SCAG meets three times
per year.
6.42
The committee notes that at the SCAG meeting in April 2009, Ministers
agreed to develop a national response to combat organised crime. In summary,
they:
-
noted that the Commonwealth should develop an Organised Crime
Strategic Framework;
-
noted the Commonwealth's intention to consider the introduction of
a range of reforms including:
-
strengthened assets confiscation provisions, including
unexplained wealth;
-
consorting laws;
-
police powers;
-
telecommunications interception; and
-
addressing the joint commission of criminal offences;
-
agreed that states and territories would consider these
legislative issues if they had not already done so, and develop model
provisions;
-
agreed to arrangements to ensure cooperation between
jurisdictions in relation to organised crime, including coordinated law
enforcement priorities; and
-
agreed to establish a SCAG officers' group to undertake work on
interoperability and information-sharing measures.[38]
6.43
The Ministerial Council for Police and Emergency Management – Police
(MCPEMP) (formerly known as the Australasian Police Ministers' Council)
promotes a coordinated national response to law enforcement issues to maximise
the efficient use of police resources. Since 1986, MCPEMP has been involved in
efforts to coordinate the national approach to organised crime.
6.44
MCPEMP is comprised of the Ministers responsible for policing from the
Commonwealth, each of the states and territories and New Zealand. The chairmanship
of MCPEMP rotates annually. MCPEMP meets twice per year (with associated
officers meetings).
6.45
Commissioner Scipione informed the committee that MCPEMP sought to
consider and enact complementary and harmonised legislation targeting serious
and organised crime:
In June 2007 the Ministerial Council for Police and Emergency
Management—Police, commonly known as MCPEMP, established a working group to
develop a national approach to gangs. At the November 2007 MCPEMP meeting, each
of the jurisdictions agreed to review its legislation pertaining to the
disruption and dismantling of serious and organised crime and to consider
enacting complementary and harmonised legislation to achieve this outcome.[39]
6.46
Similarly, the Government of South Australia also noted in its
submission that governments through the MCPEMP are seeking to progress a
nationally consistent approach to serious and organised crime.[40]
6.47
The committee commends the Commonwealth, state, and territory
governments for taking a coordinated approach to the issue of serious and
organised crime but urges that the issue of serious and organised crime
continue to be viewed as an area of national importance requiring both
continued political focus and resource allocation.[41]
Information and intelligence sharing
6.48
The increasingly multi-jurisdictional and transnational nature of
serious and organised crime was a significant theme to emerge during the
inquiry, as was the need for law enforcement agencies to share both information
and intelligence to deal with this aspect of criminal activity. Mr Jeffery
Buckpitt, from the Australian Customs Service, told the committee:
The timely exchange of information and intelligence amongst
law enforcement agencies is crucial to counteracting the increasingly
transnational and multi-jurisdictional nature of serious and organised crime
activity. Over the coming years, Customs anticipates an increase in the volume
of trade and passenger movements across the Australian border in concert with
growth in the sophistication and complexity of the serious and organised crime
environment. In this context the importance of timely, coordinated and
appropriate responses by Australian policy, regulatory and law enforcement
agencies to serious and organised crime cannot be underestimated.[42]
6.49
While a number of witnesses identified the importance of information and
intelligence sharing, information exchange appears to be problematic. When
asked what mechanisms would assist law enforcement agencies in tackling serious
and organised crime, Assistant Commissioner Tim Morris, from the AFP, told the
committee:
...anything that would assist in harmonising the transfer of
information across jurisdictions in Australia.[43]
6.50
During the committee's previous inquiry into the future impact of
serious and organised crime on Australian society,[44]
the committee examined at length, issues around information and intelligence
sharing and databases. It is not the intention of the committee to revisit in
any detail the issues canvassed in that report. However, it is apparent that
law enforcement agencies are still hampered by many of the same issues in
regard to information and intelligence sharing between agencies, across
jurisdictions and with international partners.
The Australian Criminal
Intelligence Database
6.51
Evidence to this inquiry focused on the Australian Criminal Intelligence
Database (ACID). As required by the Australian Crime Commission Act 2002,
the ACC provides this national criminal intelligence database. ACID is a
'secure, centralised, national repository for criminal intelligence',[45]
which enables the sharing of intelligence between Commonwealth, state and territory
law enforcement agencies. Mr Kitson from the ACC characterised ACID as follows:
ACID sits as the sole national criminal intelligence
repository...It is perhaps best described as a place where law enforcement
agencies and a relatively select number of other agencies can go to search nationally
held information about a particular crime type. Some jurisdictions use ACID as
their sole intelligence database, so it will include all of their intelligence
from street-level crimes to relatively—if I can take the risk of describing it
thus—insignificant crimes compared with, say, nationally significant crimes.
But it also contains information about things like clandestine laboratories,
and we will include information about some of the major crime figures.[46]
6.52
The ACC has made a number of enhancements to the database over time such
as the addition of new analysis tools and improved search functionality.[47]
This was noted by witnesses to the inquiry. Mr Keen, Director of Intelligence
with the CMC in Queensland, noted that there had been a number of improvements
with respect to the usefulness to ACID in the past few years and that the ACC
had encouraged greater participation across the states in uploading information
to ACID.
6.53
The value of law enforcement information or intelligence depends upon
the quality and completeness of the information being placed in to the system.
Mr Keen told the committee:
It still comes down to the fact that it is only as good as
the input. You need to have the different agencies responding and putting it in
in a very comprehensive manner.[48]
6.54
Mr Keen went on the note:
You would probably need to check with the Australian Crime
Commission, but I suspect they would say that some agencies are better than
others and that can come down to simply our workload. A lot of police services,
in particular, have such high volumes that it is very hard for them to always
put that intelligence onto the database in a timely manner.[49]
6.55
The unevenness in intelligence exchange presents limits to how
comprehensive a picture of organised crime can be elicited. Mr Kitson, from the
ACC, emphasised the need for ongoing investment in information and intelligence
technologies and their use. He stated:
The challenges of maintaining a modern comprehensive and
cutting-edge information technology system are huge. There is no doubt that we
will face challenges as we step into the future about the funding of the
existing ACID and ALEIN arrangements. At the moment I believe they represent a
good range of tools for us and for our partner agencies, but they will continue
to require investment into the future.[50]
The need for a consistent and
standardised approach
6.56
A number of witnesses raised the need for a nationally consistent and
standardised approach to the collection and storage of information, with the
current fragmented systems identified as a challenge for law enforcement:
To make use of intelligence and information you have to
disseminate it to someone for action... In terms of the quality of information
that comes to the ACC, we are always dependent on how the other agencies
compile their information, how they express their information. There are
constant challenges for all of law enforcement, particularly when we come to
share information nationally, about the standardisation of terms. I think we
said to this committee in a different context that different jurisdictions
might record methylamphetamine differently; they might record something as ice
or as crystal methylamphetamine. That presents some challenges in validating
the quality of information that we get.[51]
6.57
The committee was told that several Commonwealth law enforcement
agencies were considering a greater level of collaboration in the area of
information and communications technology (ICT). The committee commends this
approach and views this collaboration as a means to standardise some aspects of
information collection and storage:
If we take the specific area of ICT, yes, I think there are
some compelling arguments for greater collaboration, particularly when we are
all investing in major new systems as well, which we all inevitably need to do
to keep pace with technology and with the demands of acquiring, holding, using
and appropriately managing increased volumes of datasets. The ACC has worked
with some of its Commonwealth partners to examine systems that might apply
across Commonwealth law enforcement agencies. We have talked to Customs and to
the AFP about investing jointly in new systems.[52]
Enhanced interoperability
6.58
A previous committee inquiry[53]
noted that multiple information and intelligence databases and case management
systems exist across Australia as a result of each jurisdiction establishing
and maintaining its own systems and technologies. The inquiry also identified
that the interoperability of these systems did not allow for the smooth
transfer of information and created vulnerabilities for law enforcement
agencies and opportunities for organised crime to escape detection. While it
was acknowledged that a single national system for intelligence, information or
case-management was not feasible, it was recommended that steps be taken to
enhance the interoperability of the existing systems.
6.59
As noted above, the ACC has improved the connectivity of its databases, however
the ACC again confirmed the need to pursue greater interoperability of systems
to assist information and intelligence sharing across jurisdictions:
In terms of national approaches, we have used a lot of the
funding that we had arising out of the review of aviation security and
policing, otherwise known as the Wheeler review, to help jurisdictions to
contribute to ACID to improve connectivity so that we would overcome some of
the obstacles of incompatibility of technology and language used in the
databases so that there is a seamless transition between the databases. As long
as we have our current system of government, one of the most efficient ways of
doing things is to make the existing systems talk to each other more
effectively. The scale of enterprise that would be required to dispense with
the existing systems and replace them with a whole national framework would be
beyond measure, I think.[54]
Legislative restrictions
6.60
The committee was informed of legislative barriers to the exchange of
information between agencies and organisations. However, it was noted that information
sharing between jurisdictions and between agencies is an evolving process:
Indeed that scope as to partner agencies is constantly
evolving so there is probably no point in time when it is a static picture. I
think we will always need to continue to strive to share information and we
could never be satisfied that we have a comprehensive set of arrangements. I am
confident that it is as good as it could be for the most part. There are areas
where we need to work harder and areas where we would welcome greater
assistance from some of our partner agencies and areas where perhaps our own
legislation might enable us to share information better, particularly with the
private sector.[55]
6.61
During discussions with a number of international law enforcement
agencies legislative barriers to sharing information both domestically and
internationally was raised as an issue. Assistant Commissioner Mike Cabana, from
the Organized Crime Committee, Federal and International Operations, Royal
Canadian Mounted Police, told a Canadian Parliamentary Committee:
I was talking about the multi-faceted approach, is to deal
with the importance for us of ensuring the enforcement community's ability to
share information and intelligence between agencies, both domestically and internationally...
In the legislative reviews, aside from lawful access there's
also a need to look at some of the legislation put in place, sometimes several
decades ago, governing the exchange of information—including the Privacy Act—to
make sure that federal agencies can share the intelligence, among themselves
and with the provincial and municipal agencies and vice versa. A gap exists now
that is actually putting Canadians at risk.[56]
6.62
One of the specific problems that the committee heard about was that created
by differences in privacy legislation. Some international privacy regimes, such
as the EU model, require that agencies cannot share personal information with
their counterparts in another jurisdiction unless that jurisdiction has
equivalent privacy protections. The committee heard that this has resulted in
delays and barriers to information sharing between law enforcement agencies.
6.63
In Australia, while legislative barriers currently exist with regard to
some aspects of information exchange, the committee notes that these matters are
being progressed. Mr Cranston from the Australian Taxation Office, told the
committee:
The tax office has a suite of powers at its disposal under
the various acts we administer. This was enhanced with a relatively newly acquired
power in April 2007 to enhance information sharing—section 3G in connection
with the Wickenby task force. In the year ending 30 June 2008 the tax office
made 133 disclosures of information acquired under taxation law to Wickenby
agencies for the purpose of this task force.[57]
Multi-agency taskforces
6.64
During the inquiry the committee formed the view that multi-agency
taskforces greatly enhance information and intelligence sharing and allow a
range of specific expertises to be brought to investigating a criminal issue. The
committee heard that Project Wickenby was an example of this approach:
I believe Project Wickenby has brought together five agencies
with one outcome. I think it has been successful.[58]
6.65
Mr Neil Jensen, from AUSTRAC, highlighted the effectiveness of regulatory
approaches and law enforcement processes being brought together in multi-agency
taskforces to investigate potential criminal activity:
It is important for each agency to have a specific expertise...
Each agency brings to the table, if you like, the expertise that it has
available....We have financial transaction analysis expertise and we provide that
to the ACC and also to other agencies. But it is important that that is
identified and that any changes do not diminish the skills set that we have, or
that each of the other agencies has available to them. We do [not] want
duplication; we just need it to be complementary.[59]
6.66
Similarly, Mr Michael Cranston, Australian Taxation Office, told the
committee that a taskforce approach better allows for complex and
multi-jurisdictional issues to be investigated:
The Project Wickenby task force has enabled the agencies
involved to deal with very complex structures and arrangements across borders.
The Wickenby task force approach is proving effective in tackling abusive use
of tax havens. This approach is equally effective in dealing with organised
crime groups that have similar complex business models and arrangements.[60]
6.67
The committee notes that at a Commonwealth level, agencies and
organisations appear to be moving towards greater engagement with partners. Any
attempt to breakdown organisational silos is to be commended. Mr Neil Jensen
from AUSTRAC outlined that agency's approach:
We play an integral part in the whole-of-government task
force operations and continue to work closely with the Australian Crime
Commission and other agencies. We have in place memorandums of understanding
with 34 domestic partner agencies. Our network of outposted liaison officers
means that we are able to provide direct on-site support to a number of partner
agencies. In addition to operational intelligence support we also have a
research and analysis program which produces strategic assessments, analyses
feedback from our partner agencies, and disseminates information on money laundering
risks and typologies.[61]
6.68
The committee notes that law enforcement agencies and officers continue
to work together to minimise operational and legislative gaps. The committee
commends them for their professionalism in this regard:
...coordination across the federation will always remain a
challenge that we have to keep working on...[62]
Secondments to other agencies
6.69
The secondment of law enforcement and departmental officers to other
agencies was also identified as an effective mechanism to enhance information
sharing.
We are again probably unique being a smaller jurisdiction. We
work very closely with the Australian Crime Commission, the Australian Federal
Police, Customs and the Attorney-General’s Department, so we have
representatives of this state in all those organisation, so we work very
closely with them. We have a good intelligence-sharing network with those
organisations, and we often share resources across the various organisations.[63]
6.70
The committee was able to see first hand the value of placing law
enforcement officers with international law enforcement agencies. The committee
was particularly impressed with the effectiveness of AFP officers working with
international partners. Assistant Commissioner Mandy Newton, from the AFP, told
the committee:
[W]e have a person placed at SOCA and a member of SOCA placed
in the Australian Federal Police as well. We work very closely together and
have joint groups that come together on a regular basis across the world to
discuss new technologies, new crimes and internet related or
non-financial-transaction types of crimes and how we counter those, including
legislation across countries, and we monitor each other’s successes in those
areas.[64]
Integrated justice units
6.71
In their submission, the Police Federation of Australia quoted Justice
Moffitt, former President of the NSW Court of Appeal, who stated:
Most Australians have come to realise that, despite the many
inquiries, convictions, particularly of leading criminals, are few and that
organised crime and corruption still flourish. The path to conviction is slow,
tortuous and expensive. ... The criminal justice system is not adequate to secure
the conviction of many organised crime figures. ...
Those participating in organised crime or white-collar crime,
often part of organised crime, are usually highly intelligent and often more
intelligent that the police who deal with them. They have the best advice. They
exploit every weakness and technicality of the law. When they plan their crimes
they do so in a way that will prevent their guilt being proved in a court of
law. They exploit the freedoms of the law, which most often are not known and
availed of by poorer and less intelligent members of the community.
Crimes are planned so there will be no evidence against those
who plan and, if by accident there is, it if often suppressed by murder or
intimidation.[65]
6.72
During discussions with both the Royal Canadian Mounted Police and
Senior Counsel from the Department of Justice and the Public Prosecution
Service of Canada, the complexity of the Canadian criminal justice system was
raised as a significant challenge facing both the judiciary and law
enforcement. The increasing sophistication of organised criminal enterprises
and their activities requires the judiciary and law enforcement officers to
have greater specialised knowledge. Of concern, was the practice of specialised
defence counsel who used the complexity of the case to considerably slow the
judicial process.
6.73
Department of Justice officers highlighted a range of reforms currently
being implemented in Canada to address the challenges that complex criminal
cases present to law enforcement and prosecutors. As discussed in chapter 5, Integrated
Justice Units were flagged as a significant new approach. The units integrate
the investigation and prosecution of criminal cases by having both police and
prosecutors involved in cases from the outset. This approach moves away from
the more traditional silo approach in which police are responsible for the
investigation of a case and then hand it over to the Public Prosecution Service
of Canada to prosecute. Integrated Justice Units allow prosecutors to be
involved with police to ensure that the case and brief of evidence are
collected and prepared in a manner which is compatible with the prosecution
process. It was noted that while this approach has little public or political
appeal, it has significant benefits for law enforcement.
6.74
This integrated approached was raised during the inquiry by the South
Australian Government who argued:
Law enforcement training of investigators, intelligence
practitioners and prosecutors has traditionally focused on the criminal justice
system and its corresponding rules of evidence. A multi-faceted investigation
approach combining civil administrative procedures with the criminal law has
generally been limited and dealt with by a select group of employees. Enhanced
knowledge, skills and aptitude across broader investigation, intelligence and
prosecutorial disciplines will be required to ensure effective application for
this 21st Century investigation approach.[66]
6.75
The committee sees great merit in such an approach. By involving both
law enforcement officers and judicial officers, the process is more targeted
and can be developed in such a manner as to more readily satisfy the
requirements of a successful prosecution. As noted earlier in this report, individuals
involved in criminal activities are increasingly able to hide their illegal
activities through the use of professionals and complex business structures. Within
this context integrated justice units are a fitting response.
6.76
The committee acknowledges that while the issue of information and
intelligence sharing remains a major impediment for law enforcement agencies,
law enforcement officers do work together to enhance information sharing and
operating procedures.
...we work very closely with each commissioner to make sure
that we share information and have a common set of operating procedures or
approaches to various threats.[67]
6.77
The committee urges all jurisdictions to work collaboratively to resolve
key issues around information and intelligence sharing.
International partnerships
6.78
In the committee's report on the delegation to North America, Europe and
the United Kingdom,[68]
the committee clearly identified the global and transnational nature of serious
and organised crime. The submission from the Australian Crime Commission noted:
The threat from organised crime demands the pursuit of
constant innovation in law enforcement capabilities and adaptation to the changing
threat environment. The ACC is developing advanced capability to generate, prioritise
and proactively monitor groups and individuals that represent the highest threat
to the Australian community and economy and to attack criminal enterprise structures
that are highly successful at generating wealth. Of particular concern is the
extent that offshore connections can manipulate, influence and assist the
flight of capital from the Australian economy.[69]
6.79
Serious and organised crime is a global problem which increasingly
requires global solutions. As Dr Dianne Heriot from the Attorney-General's
Department told the committee:
To combat organised crime effectively, there needs to be a
global approach as well as an effective regional and national approach.[70]
6.80
Countries increasingly have to engage with international partners, and
while Australia faces a range of domestic hurdles regarding the need to
harmonise and coordinate law enforcement approaches to serious and organised
crime, increasing challenges are also emerging in regard to engagement and
coordination globally:
It is not just a matter of getting our laws right with regard
to operating across the nation; it is what is occurring now overseas that is
starting to become a bigger challenge for us.[71]
6.81
A key issue to emerge in the inquiry was the ability to share
information and to share it in a timely manner with international law
enforcement partners:
...getting information from offshore jurisdictions. That is a
particular concern for us—not only the process, but the timing of that and the
extended time that it takes.[72]
6.82
The committee heard from several commonwealth departments about
Australia's need to engage with international partners and about the strategies
employed to facilitate productive bilateral relationship. Mr Michael Cranston,
from the Australian Taxation Office told the committee:
The first answer to that is that it is not just an Australian
problem; this is a global problem with tax havens, and we are working closely
with the OECD to get information exchange agreements in place, which will
enable us to have this particular information that we find necessary disclosed
to us. We have negotiated four taxation information exchange agreements, and
there is global pressure for other tax haven jurisdictions to also go down that
path and enter agreements with countries. We are very proactive in that area.[73]
6.83
Similarly, in its submission, AUSTRAC told the committee that its
international network is both effective and vital in the exchange of
information, and that the agency has been successful in establishing exchange
instruments with 53 international financial intelligence units (FIUs):
AUSTRAC also has exchange instruments in place with 53
international FIUs. Through AUSTRAC, partner agencies are able to share information
on operational cases with international counterparts. AUSTRAC’s exchange
instruments provide access to an international network of financial
intelligence and enables Australia to trace transactions as funds flow across
borders... these ties are vital to the early detection of and response to
emerging money laundering and terrorism financing threats and trends in the
region.[74]
6.84
Mr Jeffery Buckpitt from the Australian Customs Service spoke of the
importance of Customs' domestic and international partnerships to successfully
tackle serious and organised crime:
Customs’s engagement in cooperative and collaborative
partnerships with domestic and international law enforcement and regulatory
agencies greatly enhances our role in disrupting and dismantling serious and
organised criminal activity.[75]
6.85
The committee heard that effective information sharing needs to occur
through both formal and informal networks. One informal model that the
committee heard has been particularly successful is the Camden Assets Recovery
Inter-agency Network (CARIN), of which Australia is a member. CARIN provides an
informal network of contacts between law enforcement officers working in assets
recovery. The committee did not look at the model in depth, however, further
information about it can be found at Appendix 9.
6.86
The committee also heard about 'Intelligence Fusion Centres' (IFC) in a
range of international locations, which provide a forum for international
sharing of intelligence and resources, as well as a mechanism for providing technical
training and assistance. The committee was told of the following Fusion
Centres:
-
Spain is the lead nation for the Marine Operations Analysis
Centre which brings together seven nations to share intelligence on Class A
drug shipments.
-
France is the lead nation for an IFC in the Mediterranean with a
focus on human smuggling.
-
UK is the lead nation for an IFC in West Africa.
-
USA has an IFC in Miami with a focus on drug trafficking.[76]
6.87
The committee was told that currently no IFC is located in the Oceania
region. It was suggested that there is a case for one to be established in this
region and that Australia is well placed to progress this issue.
Recommendation 7
6.88
The committee recommends that the Australian Government, in consultation
with regional partners, give consideration to establishing an intelligence
fusion centre in the Oceania region.
6.89
A second issue identified in relation to international partnerships, and
related very much to the first issue, is the capacity of partner law
enforcement agencies to engage in collaborative law enforcement strategies.
6.90
Australia has a range of programs which assist countries in the
Asia-Pacific region to develop strong legislation and enhance their capacity to
combat serious and organised crime.
6.91
The committee notes that the AFP has a number of highly effective programs
whereby it assists its counterparts in the region with capacity building in law
enforcement.
6.92
The Attorney-General's Department has a range of teams that assist other
countries in the region with capacity building. This includes:
-
The Regional Legal Assistance Unit, which assists South-East
Asian countries in the development of effective terrorism and transnational
crime legislation and advises and conducts training on the 'practical
implementation of legislation'.[77]
-
The Anti-Money Laundering Assistance Team (AMLAT), which assists
Pacific Island countries with the implementation of anti-money laundering and
counter-financing of terrorism arrangements.[78]
-
The Pacific Police Development Program (PDPP), which is delivered
jointly by the Attorney-General's Department and the AFP and 'provides legal
policy and legislative assistance to Pacific island countries on police and
criminal justice issues'.[79]
6.93
The committee was informed of a range of international partnership across
Commonwealth agencies which assist law enforcement in the Asia-Pacific region.[80]
The committee views these programs as a key element in addressing serious and
organised crime in our region. It is through the development of strong
international partnerships and capacity building, that law enforcement, is
better equipped to ensure that Australia is not an attractive destination for
transnational crime. As Assistant Commissioner Tim Morris from the AFP told the
committee:
...the profits are so huge and so lucrative that people will
take the risk continually. They are too big to ignore, so we are always going
to have players willing to inject themselves into the market no matter what the
risk. So I think the ultimate, if you like, endgame for us is to make the
Australian market one of the more risky in the world to deal in, so that people
will perhaps look at other markets than Australia—this is from an international
perspective—to do their business and make their money in.[81]
A supportive suite of law enforcement capabilities
6.94
In addition to appropriate laws targeting organised crime groups, and
strong mechanisms by which criminal assets can be confiscated, law enforcement
agencies need a range of capabilities to support their efforts to dismantle and
disrupt serious and organised crime. The Attorney-General's Department's
submission sets out some of the key policing tools:
Controlled operations are undercover
operations where law enforcement officers conceal their identities to associate
with people suspected of being involved in criminal activity and to gather
evidence or intelligence about them. During a controlled operation, it will
often be necessary for law enforcement officers to commit offences to obtain
evidence and to conceal their law enforcement role.
Assumed identities are false identities used by
undercover operatives to investigate an offence or gather intelligence. Assumed
identities protect undercover operatives engaged in investigating crimes and
infiltrating organised crime groups. To substantiate their assumed identities,
undercover operatives need proper identification documents, such as birth
certificates, drivers' licences, passports and credit cards. In the absence of
a verifiable identity, the safety of undercover operatives can be jeopardised.
Witness identity protection in some
circumstances, it is necessary to allow an undercover operative to give
evidence in court proceedings without disclosing his or her true identity. This
is to ensure the personal safety of the operative or his or her family. Certain
measures are provided by Australian jurisdictions to protect the identity of an
operative; including holding court proceedings in private, excusing the operative
from disclosing identifying details, and enabling an operative to use a false
name or code name during court proceedings.
Coercive powers enable a person to be compelled
to give oral evidence and/or produce documents or things.[82]
6.95
Regarding the importance of witness protection laws, the Queensland
Crime and Misconduct Commission (CMC) explained:
Witness protection is seen worldwide as an increasingly
valuable asset in the suppression and prosecution of organised crime. Organised
crime flourishes in an environment where threats encourage silence, and the
witness protection program supports witnesses through allowing them to safely
provide crucial evidence in relation to serious offences; evidence that, due to
fear and intimidation, may have otherwise gone unheard... The role of witness
protection in investigating organised crime is instanced by the success of a
witness protection operation conducted by the CMC.[83]
6.96
The South Australian police agreed with these sentiments, and discussed
the special challenges that organised crime groups present to the ability of
law enforcement to gain evidence.
...we have had many
victims that, because of the very real threats they perceive, do not want to
proceed or give evidence because they feel that they may not be protected. Some
victims feel that the criminal justice system may not support them, and the
likelihood of getting a successful prosecution for witness intimidation is
extremely low because those witnesses for the most part will not give evidence.[84]
6.97
The committee also received evidence during this inquiry about the
importance of telecommunication interception and other surveillance devices to
law enforcement. The committee also heard about the challenges that the dynamic
and fast-paced developments in technology present to law enforcement in this
area. In its discussions with law enforcement agencies in Canada, the committee
was told that developments in telecommunications often occur without the
provision of 'backdoor access' for law enforcement, so that law enforcement
agencies are unable to intercept some of the newer telecommunications technologies.
6.98
Assistant Commissioner Mike Cabana, Organized Crime Committee, Federal
and International Operations, Royal Canadian Mounted Police told the Canadian Standing
Committee on Justice and Human Rights, that:
[An area] we need to progress is the area of lawful access.
While communications technology has evolved considerably and criminals are
embracing and taking advantage of it, Canadian law has not kept pace with the
rapid changes. Increasingly, complex technologies are challenging conventional
lawful access methods. Communication carriers are not required to provide
access technology. Law enforcement agencies are simply asking that
telecommunication carriers build interception capability into existing or new
networks and provide access to important customer name and address information.[85]
6.99
Consequently, Canadian law enforcement agencies are required to develop
their own post-implementation solutions, which can be both complex and costly.
6.100
In contrast, in the United States (US), the committee heard that it is a
requirement under the Communications Assistance for Law Enforcement Act 1994
(CALEA) that before any telecommunications provider can roll-out services they
must provide 'backdoor' access for law enforcement.
6.101
CALEA enhances the ability of law enforcement and intelligence agencies
to conduct electronic surveillance by requiring that telecommunications
carriers and manufacturers of telecommunications equipment, modify and design
their equipment, facilities, and services to ensure that they have built-in
surveillance capabilities. A paper from the Congress Research Service notes:
The Communications Assistance for Law Enforcement Act (CALEA,
P.L. 103-414, 47 U.S.C. 1001-1010), enacted October 25, 1994, is intended to
preserve the ability of law enforcement officials to conduct electronic
surveillance effectively and efficiently despite the deployment of new digital
technologies and wireless services that have altered the character of
electronic surveillance. CALEA requires telecommunications carriers to modify
their equipment, facilities, and services, wherever reasonably achievable, to
ensure that they are able to comply with authorized electronic surveillance
actions.[86]
6.102
In the years since CALEA was passed it has been modified to include all
VoIP (Voice over Internet Protocol) and broadband internet traffic. However,
the committee was told that criminal organisations have sought to evade
surveillance of their telecommunications by developing their own broadband
internet system using wireless servers.
6.103
During this inquiry the issue of telecommunications access was not
specifically discussed with Australian law enforcement agencies. However, this
matter was discussed at length in the committee's previous inquiry and a number
of concerns were identified. The committee considers it is imperative that
legislation allows law enforcement to keep pace with developments in
technology, at a reasonable cost.
Resources
6.104
While this inquiry predominantly considered legislative arrangements to
outlaw serious and organised crime groups, paramount to any attempts to tackle
serious and organised crime is the operational response. The success or
otherwise of legislative tools is dependant upon the existence of appropriate
law enforcement resources to monitor, police and prosecute any legislative
arrangements. The Hon. Leonard Roberts-Smith QC, Commissioner for the
Corruption and Crime Commission of Western Australia, informed the committee
that:
Legislative solutions need to be appropriately framed to
strike cleanly, even surgically, at the criminal conduct, individuals or
organisations which they are intended to affect whilst minimising the
collateral effects on others. They must be crafted to produce an effective,
practical result... But even if the legislation meets these criteria it will not
work. That is to say, it will not produce the desired practical social result
unless the law enforcement agency which is responsible for administering it is
given the financial and other resources to do so.[87]
6.105
He went on to argue:
The relative success of these initiatives can be put down to
a focus of resources sustained over a significant period of time... A direct
consequence of this intense law enforcement activity was the collection of
intelligence on, and an understanding of, their criminal activities and their
method of operation. This has better informed both tactical and strategic
decisions. Unfortunately, the inability to sustain this focus has enabled the
gangs to rejuvenate and re-establish their presence within the criminal
landscape. The significance of persistent law enforcement attention, and the
disruptive effect, cannot be understated and needs to be part of the broad strategy
to deal with the problem... This confirms the belief that the sustained
application of these resources to the problem is the most effective strategy in
deterring, disrupting and discouraging organised and serious criminal activity.[88]
6.106
In essence, the committee was told:
I think the police, properly resourced, do a terrific job.[89]
6.107
The committee considers that while targeted legislative tools are
critical, some of the measures being currently mooted, and which are canvassed
in this report, will have significant resource implications for law enforcement
agencies. The committee cautions that due consideration should be given to this
aspect and that ultimately, legislative tools are only fully effective when law
enforcement agencies have the human and technical resources to support them.
The committee concurs with Assistant Commissioner Tim Morris:
...they are complex pieces of legislation. I sometimes wonder
how much extra resource would need to go in to monitoring some of these pieces
of legislation. We have a finite resource in the Australian Federal Police and
in most law enforcement agencies. There would have to be a very careful
calibration between the expected benefit and the resource that you would put
into the back end to get the benefit.[90]
Concluding remarks
6.108
This inquiry into legislative arrangements to outlaw serious and
organised crime was established in part to consider the legislative
developments in South Australia with the enactment of the Serious and
Organised Crime (Control) Act 2008. This Act signalled a new approach on
the part of law enforcement agencies in Australia to tackle the growing and
complex issue of serious and organised crime.
6.109
This report has sought to present: a current snapshot of serious and
organised crime in Australia; the increasing threat of transnational organised crime;
and the current legislative developments to address this. Central to this
inquiry was the examination of legislation which targets association offences,
as this was the foundation of the Serious and Organised Crime (Control) Act
2008 (SA).
6.110
During the course of this inquiry, political and public acceptance for
association offences has changed. Initially all other states and territories
adopted a 'wait-and-see' approach to the South Australian legislation. However,
the events of March 2009 at Sydney airport, in which a confrontation between
two OMCGs resulted in the murder of one man and later the attempted murder of
another, produced a concerted political response to target 'gang' membership.
6.111
A number of jurisdictions already had a range of association offences,
but in light of the Sydney airport murder, these were enhanced to mirror, to a
large degree, the legislation in South Australia. While not all states and
territories acted as swiftly as NSW, a number have publicly stated that they are
considering enhancing or enacting association offences.
6.112
The committee acknowledges that OMCGs present a very public and
threatening face of serious and organised crime. The committee has also heard
that the structure of OMCGs, and indeed of many groups involved in serious and
organised crime, is sophisticated and allows them to evade law enforcement.
Accordingly, it seems to be a logical response for law enforcement to attempt
to restrict the members of criminal groups from meeting to plan and execute
their activities. The committee sees some value in this response.
6.113
However, during this inquiry, the committee heard of a number of
alternative methods for both restricting association, and for preventing
serious and organised crime. In the committee's view, some of these approaches
share many of the benefits of South Australia's laws without some of its
difficulties, complexities and costs.
6.114
The committee also became aware that the threat of serious and organised
crime goes far beyond OMCGs, and that the groups committing some of the most
serious and lucrative crimes, and driving the lower-level criminal groups, do
not have such a public face. Moreover, witnesses emphasised the changing nature
of organised crime groups from tightly structured and enduring groups to
loosely affiliated and transitory networks. The committee heard time and time
again that organised crime is fundamentally motivated by financial profit, and
that those directing serious and organised crime will be those benefiting most
financially from it. Consequently, the committee also considered criminal asset
confiscation in this report as another means of preventing serious and
organised crime.
6.115
Chapter 5 of this report discusses in detail, legislative approaches to
target and confiscate the proceeds of crime. The committee heard that by
confiscating criminal assets, law enforcement can deprive organised criminals
of the motive for and benefits of their activities, and restrict their ability
to finance further criminal activities. The committee is persuaded that the
confiscation of criminal assets is an effective way of tackling serious and
organised crime. The committee commends the Commonwealth government for
pursuing this approach and those states and territories that have or are also
enhancing legislation in this area.
6.116
Finally, the committee's inquiry highlighted that appropriate
legislative tools are only part of the law enforcement equation. The
operational capacity of law enforcement agencies is paramount to any attempts
to tackling serious and organised crime. Clearly, operational capacity is
dependant on appropriate numbers of skilled law enforcement personnel, but it is
also dependant upon greater coordination of law enforcement approaches across
the country, improved information and intelligence sharing arrangements,
improved international partnerships, a supportive suite of law enforcement
capabilities and adequate levels of resourcing.
6.117
As a result of the federated system of government, Australia's approach
to law enforcement is currently fragmented. This situation presents
opportunities for serious and organised crime and great challenges for law
enforcement agencies. It is these vulnerabilities that criminal groups exploit.
The committee recognises the significant challenges that Australian law
enforcement faces in tackling serious and organised crime. In order to do this
effectively, law enforcement agencies must be well supported with resources,
law enforcement tools and administrative and policy arrangements. However, the
committee urges that any legislative developments be considered and
evidence-based rather than politically driven. Ill-considered legislation risks
increasing the problems of Australia's already piecemeal legislative framework.
Senator Stephen Hutchins
Chair
Navigation: Previous Page | Contents | Next Page
Top
|