Finance and Public Administration Legislation Committee
Estimates hearings, 24 May 2012
- Mr Roger Wilkins AO, Secretary, Attorney-General's Department
- Mr Tony Sheehan, Deputy Secretary, National Security and Criminal Justice Group
- Mr Geoff McDonald PSM, First Assistant Secretary, National Security Law and Policy Division
- Ms Jamie Lowe, Assistant Secretary, National Security Policy and Programs Branch
- Ms Sarah Chidgey, Assistant Secretary, Criminal Law and Law Enforcement Branch
- Mr David Irvine AO, Director General of Intelligence Security
Senator RHIANNON: On 16 May it was reported in the Herald Sun that the Attorney-General's Department had identified several places as potential breeding grounds for terrorism. How many places are on this list, please?
Mr Sheehan: The Attorney-General's Department has a countering violent extremism program and that program focuses on such things as grants and role models. We also work through the national counterterrorism committee with states and territories on projects in the community. We do not identify areas and we do not have any intelligence function of the type you have described.
Senator RHIANNON: So the implications in that article were wrong?
Mr Wilkins: Yes.
Senator RHIANNON: In May the US homeland secretary and the Attorney-General announced four joint statements. I want to deal with the joint statement which commits Australia and the US to share law enforcement data to combat crime and to expand information sharing to counter violent extremism. Is the joint statement public and could you table it if it is?
Mr Irvine: Part of the answer is yes, and in that case I see no reason why not.
Senator RHIANNON: Is it here to be tabled?
Mr Irvine: We have got one copy here, I think. Do want to ask questions about it though, because if you take it away and copy it now we will not be able to answer the questions?
Senator RHIANNON: Yes, if it could be copied, and I will go on to other things. I probably will not have the time to look at it properly but we will see how we go. I have got some other questions we can move on to. I want to move to the Parliamentary Joint Committee on Intelligence and Security. Mr Wilkins, before we go on to the parliamentary joint committee, what role has the Attorney-General's Department played in the COAG review?
Mr Wilkins: I am not sure we played any particular role in the COAG review at all. I think we probably assisted the Department of the Prime Minister and Cabinet in some of the matters—trying to get some of the names together of people who might be on it. When it eventually starts going, I think we will be helping to service the COAG review.
Senator RHIANNON: Considering the delay, has the department done anything to push it along?
Mr Wilkins: I am not sure the nature of the delay is such that there is anything I can do to push it along. I cannot really pick up the phone and say, 'Can you get on with it?'
Senator RHIANNON: No, I was actually asking if you have done anything?
Mr Wilkins: That is what I am saying. I am not sure what you would expect me to do.
Senator RHIANNON: To make it happen.
Mr Wilkins: But it is not my decision. We have done everything we can do.
Senator RHIANNON: I know. We are bouncing around just trying to get a handle on this extraordinary delay.
Mr Wilkins: We have done everything we can do for the thing to occur. It is involved in other processes. I think you have talked to officers of the Department of the Prime Minister and Cabinet about it, have you not?
Senator RHIANNON: Yes, we have. But it is so vague. We just keep trying to understand why there is this delay. To move on: why is the Attorney-General's Department not waiting for this review before pushing ahead with further expansions of the antiterrorism laws?
Mr Wilkins: What further expansion is that?
Senator RHIANNON: What the Attorney-General foreshadowed. A parliamentary joint committee is being set up. The Attorney-General has certainly set out various objectives that need to be achieved.
Mr Wilkins: I am not with you.
Senator RHIANNON: I will phrase it another way. Why is the Attorney-General not waiting for the COAG review before pushing ahead with this parliamentary joint committee?
Mr Wilkins: Because the matters the parliamentary joint committee are dealing with have nothing to do with the COAG review.
Senator RHIANNON: Nothing? Even though the COAG review is looking at our intelligence laws and the—
Mr Wilkins: No, the COAG review is quite specific. It is relating to those particular laws which were enacted with the states and territories after 9-11. There were a number of particular statutes where there was an intergovernmental agreement that they would be reviewed. So that is what the COAG review is. It is quite specific and it does not include anything which is before the Senate.
Senator RHIANNON: You really say that is irrelevant to the Parliamentary Joint Committee on Intelligence and Security?
Mr Wilkins: Yes.
Senator RHIANNON: I am still trying to understand the process here. What is the relationship between the inquiry—I am talking about the parliamentary joint committee here—and the role of the monitor?
Mr Wilkins: I guess there could potentially be some overlap. But the monitor is really looking at existing laws. This inquiry is presumably looking at new law and new policy in some areas.
Senator RHIANNON: Surely, Mr Wilkins, if you are looking at new laws, you should be considering first whether the existing laws cover it. At least you would have to agree that we are in the same ballpark.
Mr Wilkins: The other thing is that the monitor is essentially dealing with counterterrorism matters. The ambit of the matters going before the inquiry are much broader than that.
Senator RHIANNON: But it would still cover that, wouldn't it?
Mr Wilkins: Theoretically, I guess you could. What is the point of the question, though, Senator?
Senator RHIANNON: The point of the question is to understand the process with all these different aspects of government looking at intelligence and how to counter terrorism so that we can then make an assessment and allow democracy to work. I think that is what we are trying to achieve, Mr Wilkins.
Mr Wilkins: I think the Attorney's view is that the parliament is probably one of the key institutions of democracy, and therefore sending this matter to a committee of the parliament to have a look at is probably a good thing to do in terms of furthering democratic accountability in policy development.
Senator RHIANNON: But, surely, it is legitimate to ask the question and for you to answer that question thoroughly about what that relationship is, because at the moment we have new reviews, we have—
Mr Wilkins: As I say, I think the answer is that the monitor looks at existing law and gives a view to the government and to the parliament more generally about what they think about existing law. In relation to counterterrorism in particular, what the inquiry, on the other hand, is looking at is a range of issues that go beyond counterterrorism and deal with other issues around cyber, the future of telecommunications interception and procurement—a variety of issues that go beyond that. So there could be some overlap between what the monitor could do and what the inquiry will do. I think that is a fairly insignificant overlap in a sense. I think the Attorney's judgement is that the parliament, after all, is meant to be representing the people and that is where the laws are going to have to be enacted. So why wouldn't parliament inquire into this?
Senator RHIANNON: I am sure the monitor is also doing his best for the people. Mr Wilkins, can you confirm that the reference for the Parliamentary Joint Committee on Intelligence and Security has been accepted?. The reference from the department is what I am trying to ascertain.
Mr Wilkins: I think the answer is that the committee is getting more information; it is getting a briefing. It has already been said at this committee hearing that they are being briefed tomorrow and so the terms of reference have not been settled.
Senator RHIANNON: Is it accurate to summarise that answer by saying that it is getting close; it may be finalised tomorrow?
Mr McDonald: We cannot pre-empt what the decision of the parliamentary committee will be.
Senator RHIANNON: No, I was not asking that. I was trying to get an idea. There are so many different processes going on. Do you expect it will?
Mr Wilkins: We expect it and hope that they will make a decision soon. But it is not for us to tell them when they are going to make a decision.
Senator RHIANNON: Thank you. To go back to the US-Australia Joint Statement, what type of information will be shared? Is it law enforcement data and other information? I am trying to get an idea of what type of information it will be. Do you want me to repeat the question?
Mr Wilkins: No. Do you want us to say something about that?
Senator RHIANNON: Yes. The question was: what type of information will be shared?
Ms Lowe: The joint statement that you are referring to deals with a number of matters, counting transnational crime, terrorism and violent extremism. On the question about what sort of information will be shared, can I just ask you which part of that agreement you are referring to, because—
Senator RHIANNON: It is only one page.
Ms Lowe: Yes, that is right.
Senator RHIANNON: No, it is one page and another paragraph. I am asking: will law enforcement data be shared, and what other types of information will be? It is an agreement between two countries to address violent extremism. Clearly there must be more detail than this, so I am trying to ascertain the very important issue of what information is going to be shared between our two countries.
Mr Wilkins: I think, actually, that this is the beginning of a conversation. In fact, the Attorney and I were just in Washington talking to Secretary Napolitano, and at that meeting we agreed, for example, to exchange people in terms of the computer emergency response teams of the United States and Australia so that people could get to know how, in our case, the American organisation actually operates and, in the case of the US, how the Australian organisation works, and so that people could better identify exactly what information and protocols should apply to the exchange of information. So this is pretty much a very high-level conceptual document and there is not, if you like, underlying this a whole list of documents or information that is going to immediately begin to whiz across the Pacific between the US and Australia. I think that what is going to occur on the back of this is very much a conversation—for example, in relation to countering violent extremism, what their best practice is, what they are doing in terms of working with communities in the United States to counter violent extremism and what programs they have going, and similarly what we are doing here. On the back of that, we might be able to exchange information about the efficacy of different approaches and different programs in the two countries. That is really, I think—
Senator RHIANNON: Could I just ask, just to clarify: are you saying it is more about protocols than actually sharing information at this stage?
Mr Wilkins: It is a bit more than protocols.
Senator RHIANNON: Are you going to be sharing information?
Mr Wilkins: There is actually one area which this agreement picks up, which I will get either Mr Sheehan or Ms Chidgey to elaborate on. It is in relation to organised crime. There is one specific area where there will be information of a rather more concrete and specific sort exchanged.
Senator RHIANNON: It does actually get a whole paragraph in your statement.
Mr Wilkins: Yes, and that is what I am referring to.
Ms Chidgey: There is a reference in this document to having taken steps to better prevent, detect and investigate transnational crime by sharing data. Those steps that have been taken refer to a memorandum of understanding that was signed by the then Minister for Home Affairs and Justice and the US Ambassador; I think it was in November last year. That was made public and released at that time. It covers fingerprint data, DNA data and some personal information. It is subject to the laws of both countries for those categories of information, which means DNA data will not be shared at this point in time under that agreement. But the agency responsible for implementing it is working on implementation arrangements at the moment to engage more streamlined sharing of fingerprint data.
Senator RHIANNON: Thank you, that is what I was after. What do you mean by 'violent extremism'? Is there any definition or restrictions written into the statement?
Mr Wilkins: In this agreement or just broadly?
Senator RHIANNON: I am trying to understand how you define violent extremism.
Mr Wilkins: I do not think we are defining it. It is a general term that is used.
Senator RHIANNON: Good. Could the Occupy movement be covered by this statement?
Mr Wilkins: Probably not. That is not what we generally mean by violent extremism in this context.
Senator RHIANNON: Or 'countering transnational crime, terrorism and violent extremism'. Would the Occupy movement be covered by any of those?
Mr Wilkins: I do not think so. Not unless they get into drug trafficking and stuff like that.
Senator RHIANNON: Can environmental groups fall into this category?
Mr Wilkins: I do not know. If they start smuggling arms or get involved in people trafficking, then they would also be involved. But I imagine environmental movements are not inclined to do that.
Senator RHIANNON: Do you remember the Scott Parkin case?
Mr Wilkins: No, I do not.
Senator RHIANNON: It was only back in 2005. Scott Parkin is a US citizen who was in Australia He had attended a few protests here. He was picked up by ASIO, held in solitary confinement and then deported. It actually came up in Senate estimates at the time. Would a case like that be covered by this?
Mr Wilkins: I do not know enough about the Scott Parkin case to say whether that involves violent extremism.
Senator RHIANNON: That was never suggested in the material I have read about him, but there was certainly cooperation between the security forces in Australia and the US, with the young man then being deported. It seems as though it would be something that would easily fit into this when you read what actually happened.
Mr Wilkins: Countering violent extremism is not really about taking coercive action against people who are likely to be violent extremists or in danger of becoming violent extremists. It is about actually preventing that occurring in the first place. It is a prophylaxis, a prevention. In other words, if you are confronted with violent extremism, your program probably has not worked in that sense.
Senator RHIANNON: But I do draw your attention back to the term 'countering transnational crime'. This young man was locked up. There were no issues of violence as far as I am aware, except that he had been to protests et cetera. Does that fall under 'countering transnational crime'? He is a US citizen who protested at global events in Australia. He ended up in solitary confinement in Australia and was deported.
Mr Wilkins: Had he committed some serious crime?
Senator RHIANNON: Not that I am aware of. Having said that, maybe you regard protesting against some of the globalisation events in the early 2000s as serious.
Mr Wilkins: It depends whether the person has committed some serious crime. A transnational crime would have to be relatively serious to qualify under the exchange of information provisions of the MOU. I do not think it is a problem for people who are not involved in criminal activities.
Senator RHIANNON: We might move on to the issue of the sharing of the information. What type of data will Australia hand over to the US as part of this agreement?
Mr Wilkins: I think Ms Chidgey just outlined that.
Senator RHIANNON: Can an individual find out what information has been provided to the US about them?
Mr Wilkins: I do not know.
Senator RHIANNON: Isn't that rather important for Australian citizens to—
Mr Wilkins: No, it will depend on the circumstances.
Senator RHIANNON: I am not saying that they should know, but that we should at least understand the process.
Mr Wilkins: Suppose we are talking about Mexican drug cartels or something, and information is flowing across the Pacific in relation to the identification of such people. I think it might actually undermine operational matters—
Senator RHIANNON: You know that I am not suggesting we undermine such. I am talking about Australian citizens who may have concerns that there is information being collected about them. Can an individual find out what information has been provided to the US? There must be something about safeguards.
Mr Wilkins: No, that is what I am saying. The normal privacy laws et cetera will apply, so if they could have found out under the existing laws here now they will still be able to find that out.
Senator RHIANNON: So there are no judicial safeguards in place for this new arrangement?
Mr Wilkins: There are judicial safeguards in this country now.
Senator RHIANNON: Yes, but we are entering a whole new realm. It sounds like I will have to go to question—
Mr Wilkins: No, just to be clear about this, we are not inventing a whole new system of law around this. This agreement to exchange information will be done within the existing laws of both countries. It is not some artifice to sidestep the existing laws and protections of both countries.