Policing the 21st Century: Technology, Terrorism and Transnational Crime
Australian Federal Police Commissioner
Mick Keelty APM
Speaking notes for the
2004 John Barry Memorial Lecture
University of Melbourne
6 December 2004
University of Melbourne Chancellor, Ms Fay Marles; Chief Justice of Victoria, the Hon. Marilyn Warren; The Hon. Alastair Nicholson; Head of the Criminology Department, Dr Austin Lovegrove; members of the Barry Family; Dean of Law, Professor Michael Crommelin; Dean of Arts, Professor Stuart Macintyre; distinguished guests; ladies and gentlemen.
I'd also like to acknowledge the Wurundjeri and the Boonwurung groups who are the traditional owners of this land.
It is a real honour to have been invited here tonight to give the 2004 John Barry Memorial Lecture and to join so many eminent Australians who have delivered this lecture over time.
The theme for my address, Policing the 21st century: Technology, Terrorism and Transnational Crime, is one I'm sure Sir John - a visionary in his day and a man passionate about criminology - would have had a keen interest in.
I think it is fair to say that the sort of law enforcement challenges we face in policing the 21st century, would have been difficult to comprehend when Sir John was on the Supreme Court Bench here in Victoria.
In fact, for most of us here tonight, many of the challenges we face today would probably have been unthinkable 10 or even just 5 years ago.
The nature and complexity of contemporary crime make it a fascinating time in the history of law enforcement. Tonight I'd like to share with you some of the challenges we are dealing with and examine how they are redefining the job of policing and safeguarding our community.
Then I'd like to talk about some of the policy issues that are emerging and how they are impacting on our capacity to respond.
In doing so, I need to make clear two points:
The first is that nothing I am about to say relates to matters currently before the courts in Australia.
Secondly, I point out that the AFP is not a policy department. We are merely one voice in policy development and I have to say that we have been receiving very positive responses from the Government and indeed the Parliament, as issues arise.
The challenge of change
Some of you may be aware that the AFP is celebrating its 25th Anniversary this year.
In international - and even national - terms, we are a very young policing agency but in our short history we have experienced phenomenal growth.
When we started out in 1979, our brief was essentially one of investigating crimes against the Commonwealth and protecting and safeguarding its interests. This involved investigating areas like drug trafficking, fraud and organised crime. We also had responsibility for policing the Australian Capital Territory and the external territories of Jervis Bay, Norfolk, Christmas and the Cocos Islands.
Today our role is much broader, with additional responsibilities for areas like counter-terrorism and high-tech crime and for regional assistance and law enforcement capacity building programs.
In the early days of the AFP, I guess our policing approach could be described as being fairly reactive in nature, with a focus on offences committed on Australian shores and on gathering hard and conclusive evidence of crimes when they had been committed.
Today we live in a world where crime has become incredibly sophisticated and complex. It easily transcends borders, is driven by complicated ideological, social and economic factors, has the potential to wreak unprecedented havoc and involves techniques that evolve as fast as technology is allowing.
It has significantly raised the stakes for society, creating far-reaching economic and social consequences - and sometimes involving matters of life and death on a grand scale.
To try and combat these developments, we have had to change the way we go about fighting crime. As an organisation we have had to become more proactive and strategic in our responses. We have had to learn to harness our capability in the area of technology and develop more effective and collaborative networks to boost our capability not only to fight crime but to prevent it…which I'll talk more about shortly.
Technology, terrorism and transnational crime
For many of us, it doesn't seem that long ago that technology was limited to the hard-wired telephone and the electric typewriter.
From a policing perspective, these were days when gathering evidence involved executing a search warrant and seizing hard-copy documents and when surveillance involved sitting in cars and being perched on top of buildings with a set of binoculars.
Tools like email, the Internet, mobile phones and satellite communications, were not generally available and terms like the 'virtual world', 'electronic trojans', 'phishing - with a PH' and 'bot net' had not entered our everyday vocabulary.
In essence, scope for criminals to further their enterprises using technology, was about as limited then as its application to help catch them.
But how quickly things have changed.
Over recent times we have seen the power of technology unleashed with incredible impacts on all echelons of our society. As well as changing the way we go about our daily lives and work, it has redefined the nature of crime.
Criminals have taken to it with a vengeance and exploited its every advance, significantly enhancing their capability to offend on a global and rapid scale.
For instance, we have seen how mobile phones are used by criminals to communicate anonymously across the world, as well as to evade detection and even to detonate bombs - and even as an insurance measure for the organisers to ensure a suicide bomber doesn't back out at the last moment.
We know criminals are using the Internet and email to organise, conduct, finance and mask their activities, engaging in crimes ranging from online extortion, identity theft and denial of service attacks.
Technology has even opened up new frontiers for committing 'traditional' forms of crime - such as banking fraud and child sex crimes.
It has provided new capacity for manufacturing weapons, drugs, false identities and for exploiting weaknesses in the physical world, particularly among vulnerable states that provide valuable new territory and resources for furthering criminal enterprises.
At the forefront of these developments have been organised crime groups. These groups, which are motivated by profit rather than violence, operate across an ever-increasing range of crime types. And they target places struggling with poor governance, instability, corruption and economic and social hardship.
Even in Iraq we have seen organised crime groups engage in hostage taking, because there is money to be made either from those paying the ransom or by the terrorists who the organised crime groups pass the hostages on to, as part of a "double whammy" as it were.
Groups like Al Qaeda have skilfully harnessed their capacity to achieve a global identity and to further a specific ideology, strategy, targets, and networks.
They have used the Internet and international television to broadcast threats and atrocities and to spread their culture of fear, violence and intimidation.
They have also become adept at utilising technology to communicate and fund their activities and to place themselves above traditional surveillance and policing capabilities.
That is why not negotiating is a sensible policy decision.
Fighting 21st century crime
Just five years into the 21st century, it has posed some of the most unique and difficult challenges in the history of law enforcement.
Equally, I believe it has encouraged us as a society to do some important soul-searching about how best to respond to modern-day crime, which has such great potential to undermine our security and way of life.
It has forced us to confront questions like:
- How do we combat an idea or a belief?
- What drives people to subscribe to extremist ideologies and to inflict terrible crimes on their fellow citizens?
- What sorts of powers and investigative tools do we need to counter threats and to defend our livelihood?
- And in such volatile and complex circumstances, how do we strike the important balance between security and liberty?
These are challenges that I'm sure Sir John Barry - a founding member of our national council for civil liberties and a great legal reformer - would have relished.
To date, the strategy adopted by our community has been a multi-faceted one, based on a combination of new legislation, new powers, and strategic new relationships.
From a legislative perspective, the Federal Government has introduced a raft of counter-terrorism laws enabling the investigation and prosecution of activity that relates to the membership, financing and training with prescribed terrorist organisations.
They have attempted to address gaps in intelligence gathering by giving the Australian Security Intelligence Organisation new powers to question and detain terrorism suspects.
Important new measures have been introduced to protect our critical infrastructure, and to strengthen aviation and maritime security...to name but a few.
From an AFP perspective, we have taken on a host of extra responsibilities, invested in extensive new partnerships and redefined our priorities and approaches to fighting crime.
Importantly, we have moved to intelligence-led policing, to build our understanding of the environment and make most efficient use of our resources.
We have also strengthened our focus on tackling crime before it reaches Australian shores, expanding our networks overseas and building policing capacity in our region.
The AFP now has 65 officers based at 33 posts in 26 countries, who are doing some excellent work in terms of building relationships with colleagues overseas and fighting crime offshore.
This is quite separate to the peacekeeping missions you see in the Solomon Islands , East Timor and Cyprus and more recently Papua New Guinea where the first patrols started on the streets last Thursday.
Our international strategy is yielding significant results, not only in terms of counter-terrorism efforts but also in relation to policing crimes such as drug trafficking, people smuggling, sexual servitude and child sex tourism.
For example, the mutual trust and understanding forged with the Indonesian National Police, proved invaluable for investigations both in the Bali and Jakarta bombings of the Marriott and also the Australian Embassy. And this has been integral to improving our understanding of how terrorist groups are operating throughout the region.
Cooperation with international policing agencies has also led to some significant drug seizures in the region, including the recent seizure in Fiji of enough precursor chemicals to produce up to 1000 kg of methamphetamines.
Close cooperation with international authorities in relation to the recent worldwide investigation into the trafficking of online child sex images - codenamed Operation Auxin - led to the identification of more than 700 Australian suspects and more than 2200 charges to date.
Another key feature of our international strategy has been the significant investment in regional assistance programs. These are working to bolster the capacity of police and to boost security among some developing nations.
Today, more than 200 of our officers are working offshore on these programs, restoring law and order to troublespots, weeding out corruption, and training police in sustainable investigation and crime management techniques.
Not only is this helping to raise the barriers for those looking to engage in organised crime in our region, but from a national security perspective it is helping to strengthen relations with State and Territory Police and similarly with other government agencies who are working closely alongside us in these and other national security endeavours.
Additionally, the AFP has been forging important new partnerships with the private sector and with educational institutions to improve our understanding of where we might be vulnerable as a community and to strengthen our security responses.
We have also moved to engage those in the community who we feel may have been disenfranchised or marginalised by some of our earlier activities and we work very closely with the Islamic community right across Australia.
We have also shifted our recruitment focus to boost our educational capacity and ensure the organisation is best placed to fight modern crime. More than 70 per cent of our recruits over the past five years are tertiary or post-graduate qualified, the average age is 29 indicating they have had more than one career before they have come into policing and they also speak a diverse range of languages. We are also developing extensive opportunities for our members to build on their formal education throughout their careers, by linkages with the universities for research positions and also through our executive - which is the youngest executive of any policing organisation in the country - for development positions with the private sector.
All of these are significant and vital steps in effective policing for the 21st century. But the complexity and continually evolving nature of transnational crime, means there is still much more to be done if we are to maintain security over the longer term.
Addressing the issues
Today our community has very high expectations that police and law enforcement authorities will prevent and disrupt crime, particularly terrorism.
But the reality is that we will only be as successful as the tools available for investigation, information gathering and admitting evidence into Australian courts.
It is important therefore that our criminal justice system remains robust and responsive to these changing conditions.
As I've pointed out, the world today is very different to the days when some of the basic tenets of our legal and criminal justice systems were devised.
Once - the difficult issues confronting law enforcement authorities centred around activity such as community violence, fraud and drug trafficking. Today the threats are not that simple or contained.
Who would have ever thought that commercial airliners could be turned into weapons against thousands of innocent and unsuspecting people? Or that the sale of common-garden fertilisers would need to be regulated to protect our community from incredibly violent and horrendous acts?
Australia is not immune from threat, so as a community we need to ensure that we are well positioned to respond.
The importance of this is highlighted by the chilling words of the IRA to former British Prime Minister Margaret Thatcher. After a failed attempt on her life in 1982, the IRA said: "Today we were unlucky. But remember we only have to get lucky once. You have to get lucky every day."
Therefore, given the nature of 21st century crime, we need to decide what lengths we want to go to, to ensure that criminals such as terrorists - who have a significant tactical advantage and unprecedented capacity to strike - don't 'get lucky' at our expense.
As a strong advocate for legal reform, I think Sir John would have appreciated some of the difficulties that law enforcement agencies experience in tracking and apprehending criminals today.
In canvassing some of these from an operational perspective, I'd like to raise the issue of transnational evidence collection.
Transnational evidence collection
It is increasingly critical that police travel the world to gather evidence that may assist in prosecuting those engaged in terrorism and other forms of crime.
But we encounter a number of constraints imposed by laws relating to evidence that does come from overseas.
Many of the jurisdictions that we have to deal with, do not have the same evidentiary standards that we do here in Australia.
Terrorist suspects detained overseas can be held by non-law enforcement agencies - such as intelligence or military agencies - in non-criminal custody and with no necessity to meet certain evidentiary requirements, like we do here.
Foreign law enforcement agencies don't always grant Australian authorities wanting to conduct interviews, permission to adopt Australian standards.
While you can understand why this might be so, it serves to emphasise some of the difficulties in applying practice in a globalised world.
But of course failure to comply with Australian legal requirements can give rise to issues about admissibility once the matters are brought to bear in Australia.
Some overseas agencies are also often reluctant to allow the information to be recorded on tape and to provide the suspect with recordings, as they believe it can pose extra security risks.
I believe Australia's criminal justice system needs to allow courts to exercise even greater discretion, to admit evidence acquired in circumstances which may not strictly conform to domestic requirements.
I'd like to stress that I am not advocating disregard for the long-established legal requirements; only flexibility for a court to consider admission of evidence obtained under these sorts of restrictions.
Given the transnational nature of terrorism activity and the high probability that current and future investigations will have overseas links, these issues are likely to present barriers for AFP counter-terrorism investigations for the foreseeable future.
This sort of reform could significantly overcome operational challenges that joint investigations are encountering on the ground.
If I turn to specifics…
Suspects right to silence
Another area I believe is in need of review is the law pertaining to the provision of information by terrorist suspects.
During Operation Alliance - the joint investigation with the Indonesian National Police into the Bali bombings - Indonesian laws enabling police to elicit information from suspects, contributed to valuable evidence being secured at an early stage. This included the identification of associates, some of whom were planning future terrorist acts and other related criminal activities.
Here in Australia, suspects have the right to remain silent when questioned by police about a serious offence. Although I note that here in Victoria, the Parliament recently passed the Major Crime (Investigative Powers) Bill to allow police to apply to the Supreme Court for coercive questioning orders in relation to investigating organised crime offences.
In the United Kingdom and in Northern Ireland, similar anti-terrorism legislation has been enacted allowing police to ask limited questions without delay.
These include:
- The person's identity and movements.
- What the person knows about a recent explosion or another recent incident endangering life; and
- What they know about a person killed or injured in a recent explosion or incident.
Offences exist for failing to stop and answer questions. These are supported by additional provisions which stipulate that during court proceedings, discretion exists for juries to draw inferences if a suspect fails to mention facts relevant to an offence that is relied upon in their defence.
Studies conducted on the effects of the system in Ireland (Zander M: Silence in Northern Ireland (Article on study by Prof John Jackson Queen's University) printed in the New Law Journal Volume 151 Number 6969, 2 February 2001 PP138-139.) have shown it has had some positive effects on the legal process, with more people likely to testify. Significantly, it hasn't led to increased conviction rates, but its purpose is not necessarily about achieving higher conviction rates. It is about proactive policing and preventing a disaster from occurring.
I believe, here in Australia we are at a point in the policy debate where it may be in the greater public interest for us to consider a similar system. This would enable a presiding authority to make an order requiring a specified person to provide any information or assistance that is reasonable and necessary to prevent a terrorist attack, or to apprehend those responsible for a terrorist attack.
If we can justify these sorts of provisions at the State level in relation to serious crime, then why not have appropriately tailored provisions (similar to the UK model) at the national level - where we have responsibility for prosecuting and preventing terrorist acts, the most serious crime now on our statutes?
Of course, ASIO has similar powers but they are for intelligence purposes only.
And I am not suggesting that we do away with the principle of the right to silence altogether, but if society really expects law enforcement to be able to prevent and disrupt terrorist activity, then we need to look at other models that are working or that are under development in other parts of the world.
I must emphasise at this point, that we fully support the notion of the prosecution always having to prove its case beyond reasonable doubt, but equally we believe that cases should be conducted and tried on their proper merits.
I know one of the main arguments against this proposal is that it increases the powers of police.
However, in an age where video and audio taped interviews are standard procedure, and where accused persons have recourse or review to the Ombudsman, including the protection of an adversarial justice system, that we have adequate safeguards and accountability mechanisms in place.
Early intervention
On this note, the introduction of the new non-association laws is a very positive step in strengthening investigative tools to disrupt terrorist-related activity.
What needs to be balanced here is the education of those practising legitimate religion because they are not the people being targeted by the new laws.
The key to fighting terrorism is having the means to dismantle it at the earliest possible intervention point.
You only have to have walked through the crime scenes of the Bali and Jakarta bombings to appreciate why this is so important.
During the Bali bombings investigation, it became evident that the bombers relied heavily on outside support in the time leading up to the tragedy.
If a terrorist act is to be prevented, investigators need to be able to pierce those associations at the earliest possible stage.
We know support is being offered to terrorist support networks in Australia, via telephone, on the Internet and through other electronic and physical means. But by the time investigators get close enough to gather sufficient evidence to prove a substantive criminal offence, the risk that the terrorist objective will be carried out becomes unacceptably high.
The Anti-Terrorism Act 2004 No.2 recognises this difficulty and provides stronger means for us to deal with this issue.
It enables us to take appropriate action as early as possible in terrorist investigations and to make it more difficult for listed terrorist organisations to circumvent membership, financing and training offences that support their activities.
But we must emphasise, this is not about challenging the freedom of law abiding citizens to meet for a common purpose or other shared objective, such as family or religious reasons.
It is simply about providing us with the tools to intervene and disrupt those with sinister motives, before it is too late.
The recent introduction of laws to extend telecommunications interception and surveillance powers are other important new tools helping to dismantle crimes at an early stage.
These include the Telecommunications (Interception) Amendment (Stored Communications) Act 2004 and the Surveillance Devices Act 2004.
The first aims to make stored communications such as voicemail and email, accessible to law enforcement authorities without a telecommunications interception warrant is necessary for future investigations. The latter enables the AFP to use a greater range of data, optical, listening and tracking devices to monitor all terrorism offences.
Again, I know there have been some major concerns in the community expressed about changes to telecommunications laws in Australia. But again they should not be dismissed as a grab for more powers.
They are simply about enabling us to keep pace with criminal advances. We would support of course maintaining the same level of scrutiny that existed before technology became so advanced, such as oversight by the Ombudsman and being accountable for material that is gathered through existing audit processes.
Furthermore, I think we need to examine measures like broader stop, detain and search powers - particularly in relation to the maritime freight industry - to increase our capacity for preventing and responding to terrorist attacks.
I note these sorts of provisions - which allow containers and freight to be searched - have already been introduced in the United Kingdom and that laws differ among Australian jurisdictions in relation to this issue. So I think this is also an important area for review.
I also note the NSW Government is proposing new powers to enable investigators to delay notifying occupiers that search warrants in terrorism investigations are to be executed. This is an important development for investigators and another area where I believe it is in the public interest for us to achieve national uniformity.
Finally, if international cooperation is one of the most important tools we have to fight transnational crime, then we need to continue to improve processes for mutual assistance requests.
In recent years, we have seen a significant increase in the number of requests for mutual assistance. Last financial year Australia made more than 160 requests to more than 70 countries for assistance - an increase of 20 per cent on the previous year. Overseas requests to Australia also soared, up by nearly 80 per cent compared with 2001-2002.
These have covered assistance for investigations into a wide range of crimes, including fraud, drug trafficking and people smuggling, but requests are increasingly being sought in relation to counter-terrorism matters, as well as for time-critical and multifaceted investigations and prosecutions.
In Australia, we have been making important strides in streamlining the processes of sharing material. But this must continue so arrangements can be modernised to align with major government reforms such as the proposed electronic surveillance device regime.
Regional assistance
Looking beyond some of the difficulties being encountered with investigating and prosecuting terrorism and transnational crime…I'd like to quickly touch on some of the issues we are confronting with the implementation of our regional assistance programs.
When we go and work in places like the Solomon Islands and East Timor, one of the major hurdles we confront is the difference in the way they go about their business.
While it is vitally important that we don't go in and attempt to impose our own systems and our own values on those countries, we have to find ways of working around complexities created by differing legal frameworks and technological capacity.
As we know, in Australia technology is used by police to best effect in investigations and intelligence collection. But in a capacity building context, our police officers are often confronted with low-tech or no-tech working environments. In some instances, there is no power, telephone or other means of communication to assist in policing work.
In these circumstances, we have to go back to basics and not attempt to introduce technology that is beyond the learning capacity of the user, or too costly to operate and maintain.
Therefore, we have sought to introduce equipment that is not necessarily cutting-edge, but robust enough to endure the local conditions. As an example, UHF radios are being supplied not just for communications but for the transfer of data that will assist in witness affidavits.
From a training perspective, problems with language and cultural barriers are being encountered in training local police. They are being overcome by the development of special CD-ROMs. These can be easily transported to remote areas and they use more visual teaching approaches to assist those not comfortable with large amounts of reading.
During these missions we have also encountered a number of issues in relation to court proceedings, that we now need to address. Often there is a requirement for our officers to return to the country of mission to give evidence when matters eventually reach court.
For example, the trials of a number of major offenders are due to begin in the Solomon Islands in January. These relate to offences arising from ethnic conflict alleged to have been committed between 1998 and 2003 and they include serious charges such as multiple murders. So far, 40 cases have been identified with each due to last for about one month.
As an aside, in those investigations they actually conducted 43 separate exhumations in the Solomon Islands, so you can imagine the sort of evidence that needs to be given.
The commitment of AFP officers throughout this process is significant and costly to the Australian taxpayer - not only in a financial sense but also in an opportunity cost sense, because the absence of police after they have served their tour of duty impacts upon our own needs here at home.
That is why we created the International Deployment Group and it is currently attempting to find a solution to the problem of giving evidence overseas, possibly through the use of video-conferencing not just for Australians but also - if we can manage it - for other countries as well.
Conclusion
In conclusion, when it comes to thinking about what the remainder of the 21st century holds…I believe one of the great challenges for all of us in policing, academia and the legal profession, is to remain very much in touch with changing conditions and community expectations.
This requires us to continually monitor evolving threats and trends so we can remain agile and responsive to changing needs.
Having said that, some of the difficulties with policing that I've outlined here tonight, in no way impact on the way the AFP upholds the current law.
We just think it important in the ongoing national security debate to express our views about practical difficulties we are facing in carrying out our responsibilities to the Australian public.
However, we accept that we are only one part of the community and our views may not fully encompass the broader range of issues that may need to be considered.
The balance between security and freedoms is a delicate one and it is important not to abandon fundamental legal principles. Equally however, I believe we need to apply them with due consideration to 21st century conditions.
This involves weighing up the developments, imperatives and dangers that confront our society, against the added safeguards that have come with greater public scrutiny and accountability requirements.
At the end of the day, our underlying objective must be to build a stronger and more secure environment for the generations that follow. My view is that the community would expect nothing less.
Thank you.