02 November 2013

ASIO and ACC reports

The latest ASIO annual report [PDF] indicates that
In 2012–13 ASIO completed 130,045 counter-terrorism security assessments. No adverse or qualified counter-terrorism security assessments were issued. 
The following statistics are provided for vetting -
Top Secret Positive Vetting 1,789
Negative Vetting Level 2 6,625
Negative Vetting Level 1 19,168
Other 4 
During the reporting period, ASIO issued adverse security assessments in respect of 18 passports, presumably reflected in refusal under s 14 of the Australian Passports Act 2005 (Cth) to issue a passport. (To the surprise of some students, Australian citizens don't have an unfettered right to leave their country with an Australian passport).

ASIO issued one adverse security assessment in relation to a citizenship application.

Overall visa security assessments were up -
Temporary visas 18,748 (up on 12,623 in 2011-12)
Permanent visas 3,681 (from 5,708 )
Onshore protection (Air) 257 (from 319)
Offshore refugee / humanitarian 3,369 (from 687 )
Unauthorised maritime arrivals 3394 (4,760)
ASIO reports completing 130,045 counter-terrorism security assessments. No adverse or qualified counter-terrorism security assessments were issued.

The report offers the following "snapshots" of litigation -
M47/2012 v. Director-General of Security and Others [2012] HCA 46
M47, an unauthorised maritime arrival on the Oceanic Viking vessel, asked the High Court to quash his adverse security assessment on the basis that ASIO had denied him procedural fairness in not interviewing him.
M47 also sought an order that a visa be granted and a declaration that his immigration detention was unlawful. M47 instituted proceedings in the High Court against five defendants, including the Director-General of Security.
On 5 October 2012 the High Court delivered its judgement, finding ASIO had provided procedural fairness in the circumstances of the case. On 29 November 2012 the court remitted M47’s visa application to the Refugee Review Tribunal for further consideration.
S138/2012 v. Director-General of Security and Others
In 2009 ASIO issued an adverse security assessment in respect of S138, an unauthorised maritime arrival in immigration detention. S138 asked the High Court to quash the assessment, compel a visa grant and declare his detention unlawful. In 2012 the court handed down its related M47 decision, which was limited to applicants who had made valid protection visa applications under Migration Regulation 866.225(a). S138 did not fall into this category because he was not eligible to make a valid visa application and had requested the Minister for Immigration and Citizenship exercise his discretion to enable him to do so. This request was declined.
On 7 June 2013, following an advisory opinion by the Independent Reviewer of Adverse Security Assessments, the Director-General issued a non-prejudicial security assessment for S138. DIAC subsequently granted a bridging visa pending consideration of S138’s refugee claim. On 13 June 2013, on the basis of the parties’ consent, the court dismissed the application.
The Queen v. Khazaal [2012] HCA 26
Mr Khazaal was found guilty in 2008 of making a document in connection with a terrorist act and sentenced to 12 years imprisonment. The jury was unable to reach a verdict on the additional charge of attempting to incite others to commit a terrorist act. In 2011 the New South Wales Court of Criminal Appeal (NSW CCA) overturned the conviction and ordered a retrial, to be heard with the incitement retrial. The Crown was granted special leave to appeal to the High Court, on the basis of provisions in the Criminal Code Act 1995 relating to evidence.
On 10 August 2012 the High Court unanimously allowed the appeal of the Commonwealth Director of Public Prosecutions, overturning the NSW CCA decision and reinstating the conviction. The court remitted the matter to the NSW CCA to consider Mr Khazaal’s sentence appeal. On 13 June 2013 the NSW CCA dismissed Mr Khazaal’s appeal against the severity of his sentence. Mr Khazaal may be eligible for release on parole in 2017.
RJCG v. Director-General of Security [2013] FCA 269
ASIO assessed the applicant, an Australian citizen employed by the Commonwealth, to have engaged in acts of foreign interference by providing information to foreign intelligence officers. ASIO issued an adverse security assessment recommending revocation of the applicant’s security clearance.
On 22 August 2012 the AAT affirmed ASIO’s decision. The applicant appealed this decision to the Federal Court, which will hear the matter in November 2013.
TCXG and Director-General of Security and Anor [2013] AATA 284
On 21 June 2012 ASIO issued an adverse security assessment in respect of TCXG, and the Minister for Foreign Affairs consequently refused TCXG’s application for an Australian passport. ASIO assessed that the applicant adhered to an extremist interpretation of Islam which condoned the use of politically motivated violence. ASIO assessed that TCXG’s extremist actions involved encouraging, fostering and supporting extremist activities, including the use of politically motivated violence. On 10 May 2013 the AAT affirmed ASIO’s 2012 adverse security assessment and DFAT’s passport refusal.
NBMW v. Minister for Immigration and Citizenship [2013] FCA 651
The applicant, an unauthorised maritime arrival, challenged the ASIO adverse security assessment. On 12 September 2012 the AAT affirmed the security assessment. The applicant appealed this decision to the Federal Court but then discontinued that appeal and sought instead to join the Director-General to the separate Federal Court action against the Minister for Immigration and Citizenship. The applicant claimed the security assessment was not lawful or validly made because ASIO had denied NBMW procedural fairness.
On 5 July 2013 the Federal Court dismissed the application to join the Director-General to the separate proceedings.
The Australian Crime Commission (ACC) has meanwhile released its report on organised crime in Australia [PDF]. (Past reports are noted herehere and here.)

It is usefully read in conjunction with 'Going Dutch? Comparing Approaches to Preventing Organised Crime in Australia and the Netherlands' (RegNet Research Paper No. 2013/12) by Julie M. Ayling and 'We Get the Crime We Deserve: Exploring the Disconnect in ‘Law and Order’ Politics' by Rick Sarre.

Sarre comments that -
Every dollar that Australian governments spend on keeping people in the criminal justice system is potentially a dollar that could have been spent on initiatives that have been shown to stem the flow of potential offenders and re-offenders. These initiatives include employment incentives, community capacity-building, drug treatments, post-release services, therapeutic courts and intervention for ‘at risk’ individuals and their families. Intriguingly, governments do spend significant amounts of money on these sorts of programs, but they seem reluctant to advertise the fact that they are assisting those whom many would class as ‘the undeserving’. This is an odd and expensive political disconnect. This paper explores a number of fallacies that persist in popular thinking that have the effect of widening this disconnect. It offers a number of paths forward for justice policy-makers and social planners in order to address the malaise.
Ayling's article contributes -
to the growing literature on organised crime prevention by examining the approaches of two countries, Australia and the Netherlands. In many respects these countries are similar. They also have many organised crime problems in common. But their responses to those problems have been quite distinct. The Dutch administrative approach has been hailed as both unique and successful, while the Australian approach, primarily a reactive criminal law-based response, has encountered a storm of criticism. The article compares the two approaches and addresses the questions of whether and what Australia should learn from the Dutch approach.
Ayling suggests eight lessons -
Lesson 1: Set clear goals and benchmarks.
Setting goals and benchmarks is foundational to the establishment of any new policy framework. A very clear idea of what the new approach is designed to achieve is crucial. Similarly, it is crucial to understand what one is dealing with. This requires good empirical research into the nature, costs, harms and distribution of organised crime. Such research also provides benchmarks against which the success of any new approach can be evaluated. Evaluations against benchmarks provide the foundation for future adjustments to increase the framework’s effectiveness and can help legitimate any new measures, which may be particularly important where there are broader public impacts (see below). In the Dutch case, the implementation of the administrative approach was preceded by research into the extent and nature of organised crime in Amsterdam, and particularly in the city centre. The clarity and reliability of these studies as threat assessments has, however, been questioned. Nelen and Huisman (2008) note that no clear definition of organised crime was employed, making evaluation of the success of the approach difficult. The framework developed also relied heavily on the New York example of racketeering, which involves a quest by criminal groups for political and economic power over certain sectors, when in fact the problems faced in Amsterdam were (and still are) more concerned with vice and drugs. As a result, the administrative approach has needed ongoing adjustment (for example, the inclusion of new sectors). Australia has the opportunity to learn from the Dutch experience, to conduct research at a measured pace into its own organised crime scene without preconceptions, and to set appropriate goals and benchmarks on the basis of that research. This would give any new system the greatest possible chance of effectiveness right from the beginning.
Lesson 2: Have realistic expectations
An administrative approach will not ‘solve’ the problem of organised crime. For one thing, its application is limited to circumstances where organised crime seeks facilitation from public agencies. However, not all organised crime needs such facilitation. Furthermore, while an administrative approach would seem to clearly prevent the facilitation of organised crime by the state, establishing causality between preventing facilitation and having an impact on organised crime’s power and activities is difficult. So far, in the Netherlands, any impacts on organised crime can be considered only ‘plausible,’ rather than ‘proven’ (Nelen and Huisman 2008). Expectations may therefore need to be pared back, at least in the short term.
Nelen (2010: 97) suggests that the expectation for the Van Traa project and Emergo, that that the Red Light District can be transformed into a “decent and transparent business area”, is to some extent naïve because it “neglects the dynamics and modus operandi” of the market in vice operating there, which relies on a symbiotic relationship between the legitimate and illegitimate spheres. One is reminded of von Lampe’s (2011) observations that to properly capture organised crime settings, a situational model needs to incorporate sensitivity to the social, economic and political context. Although von Lampe’s comments were directed to the national level (that is, juxtaposing postmodern societies with societies in transition and developing countries), this observation could equally apply to the social and economic contrasts between city districts or regions.
Lesson 3: Build in flexibility and limits
Flexibility is necessary to cope with the evolving nature of both organised crime and understandings of it that necessarily alter with research and experience. However, a clearer understanding of the problem should also suggest the placement of limits on the application of a new approach to avoid the kind of net-widening effects referred to by Huisman and Koemans (2008), such as the expansion of sectors covered beyond those where the influence of organised crime can be directly observed.
Lesson 4: It’s not going to happen overnight
Multi-agency working is fraught because every agency has its own culture and conception of its ‘territory’ (sovereignty). Shared goals and explicit commitment from leaders will help, but distrust is to be expected, especially when information has previously been the exclusive domain of a particular agency such as the police. Nelen and Huisman note that the evaluation of the Van Traa project turned up information sharing as a “bottleneck” and state (2008: 210) that “Up until now, the various partners have predominantly paid lip service to the administrative approach, but have not integrated this strategy in their own working processes.” It may be necessary, initially at least, to mandate a detailed system of information exchange, not just a system for information collection with an expectation of sharing. Even then, real trust between agencies, although essential for an effective system, is likely to be based largely on informal connections, will need time to grow, and might only do so once positive results have accrued.
Lesson 5: Be prepared to be pragmatic
The stories about compensating Fat Charles for his prostitution windows and the Hells Angels for their clubhouse land suggest that cleaning out organised crime using administrative measures might pose ethical dilemmas, such as whether crime should be allowed to pay. How much the bending of principles could be tolerated needs careful consideration.
Lesson 6: Consider the red tape
One cannot expect the adoption of a whole new approach to be either easy or cheap. Bureaucratic complexities are bound to arise. The tension between increasing ‘red tape’ for businesses in order to combat organised crime and adhering to a ‘better regulation’ agenda will need resolving.
Lesson 7: Expect (and plan for) the unexpected
Unintended consequences are likely if not inevitable. As well as being realistic about the likelihood of positive results from a new framework, it is prudent to consider the possibility of undesirable impacts. For instance, Nelen (2010) notes that parts of the sex industry moved underground as entrepreneurs decided that compliance with Van Traa/Emergo requirements was too difficult, and speculates that change to less regulated ways of working, such as escort businesses, could occur. He reports that this has already happened in relation to money lending, with entrepreneurs reacting to tightened banking controls turning to informal lending systems (people like Fat Charles), which in turn has increased opportunities for money laundering. Another example of an unintended consequence is the concentration of ownership of industry sectors, referred to earlier. Attention needs to be paid to guarding any new framework against crimogenic effects.
Lesson 8: No panacea
An administrative approach will not necessarily quieten the debates about privacy, procedural fairness and punitiveness that have accompanied the introduction of antiassociation laws in Australia. These issues may still arise with the implementation of an administrative approach, as they have in the Netherlands (Council of Europe 2003). As Huisman and Koemans (2008: 142) comment: “The consequences of these administrative measures can also be more far reaching than those of criminal sanctions, while the safeguards of due process are considerably less so.” Careful consideration of these issues – how and to what extent to protect privacy, how to ensure procedural justice and whether punitiveness is a live issue – should be part of any general planning for adopting a new approach based on administrative measures.