Australian Government: Attorney-General's Department
Australian Government: Attorney-General's DepartmentAchieving a Just and Secure Society

International responses to a changing security environment

9 May 2006 - Security in Government Conference

Speech by Robert Cornall, Secretary, Attorney-General's Department - 9 May 2006 

Introduction

Over the last twelve months, I have travelled extensively with the Attorney-General to discuss national and international security issues with Ministers and senior officials in the United Kingdom, Europe, Asia and the United States.

It has been particularly interesting to see the way other governments assess and respond to threats to their national security.  Our discussions have provided many points of comparison with the approach we have taken here in Australia.

The differences largely reflect the different law, legal system and culture of the countries we visited.  They also reflect different perceptions of the origin, extent and dimension of the threat to their security, both now and into the future.

Today I want to comment on some of the insights I gathered from those discussions. 

New legislation

First, I want to talk about changes to legislation.  Many countries have introduced new laws and adapted law enforcement procedures over the last four years to improve their capacity to deal with terrorism.

You will recall that, here in Australia, the Government undertook a further review of our counter-terrorism legislation after the bombings in London last July.  That review resulted in the passage of the Anti-Terrorism Acts in December 2005. 

Two of the most discussed provisions were the introduction of control orders and preventative detention.

Control orders

Those Acts create a new form of court order to control a person’s conduct and activities.  The concept is derived from similar powers in the United Kingdom which have also now been adopted in The Netherlands. 

Under the Anti-Terrorism Act (No 2), the Australian Federal Police can apply to an issuing court for a control order where it would substantially assist in preventing a terrorist act or where a person has trained with a listed terrorist organisation. 

A control order can prohibit or restrict a person from being at specified areas or places; from communicating or associating with certain people; from using the internet; possessing certain articles or substances; and carrying out certain activities.

A control order can also require a person to remain at particular premises at certain times and to wear a tracking device.

Preventative detention

Where a preventative detention order is sought, the AFP must establish that detaining the person is reasonably necessary for the purpose of substantially assisting in preventing a terrorist act. 

The maximum period of detention under the Commonwealth preventative detention regime is 48 hours, but it can be extended to fourteen days under complementary State provisions.

I won’t go into more detail about the operation of these provisions in Australia because the point I want to make is about the approach in the United Kingdom.

United Kingdom provisions

In the UK, they have similar provisions. 

However, the British Government recently tried to extend the maximum period of preventative detention from 14 to 90 days.  It was unsuccessful, but the Parliament passed laws allowing preventative detention for up to 28 days.

While we were in Britain, we asked law enforcement and security agencies about the rationale for the increase in the period of preventative detention.  The explanations they offered were very similar. 

These are the points they made and, while it is a lengthy list, I think it is worth repeating because all the arguments have substance.

The first point they made was about the difference in the nature of terrorism experienced in England some years ago, particularly attacks by Irish Republican Army, and terrorism today. 

In the past, the authorities often had warning about a possible attack through good intelligence.  And those earlier terrorist attacks were planned and implemented over a period of time.

This meant that security and law enforcement agencies had the opportunity to conduct surveillance and other investigations which had two outcomes. 

In many cases, it enabled them to disrupt the planned attack and identify and arrest the participants.  It also enabled them to gather evidence to put before a court in a criminal prosecution.

The final point of difference is that those earlier attacks were intended to achieve a political objective and not just the random killing of innocent citizens in pursuit of an imprecise jihad against Western countries and their values.  This political definition gave their attacks some structure and predictability.

Today’s terrorist environment is quite different. 

The British view is that the lengthy task for terrorists is cultivating or identifying a suicide bomber.  Once that has been achieved, terrorist organisations move quickly to a terrorist attack before the potential bomber changes his or her mind. 

From the State’s perspective, the need for an urgent response is increased by the huge range of potential targets in an open, democratic society.  We have also seen, for example in Jakarta, the effects of displacement.  In other words, because a terrorist attack can have almost any target, if an attack is thwarted against one target, it can easily be redirected to another.

So there can be very limited time for surveillance and investigation.  Law enforcement and security agencies may have to move almost immediately they have intelligence which indicates a terrorist attack could occur to prevent that happening.

The dilemma is that, by moving so quickly, they may have very little evidence to substantiate holding, charging and prosecuting the individuals concerned in accordance with traditional criminal law procedures. 

Preventative detention could both defuse the threat of an attack and allow time for further investigations to be carried out and evidence obtained.

There are a number of other factors which can complicate and delay investigations that, in the British view, justify preventative detention in terrorist cases.  They are:

The Netherlands has preventative detention for security reasons for three days.  That period can be extended by the Court for a further 10 days if certain criteria are met and then for an even longer period if it is authorised by a judge under even stricter requirements. 

Once again, the view in The Netherlands was that 10 days was too short a period of preventative detention in terrorism cases.

The situation is different in France due to its different judicial system.  A person suspected of an offence, such as Willie Brigitte, can be held for two or more years while the investigating magistrate pursues detailed investigations.

The United States has invoked its material witness provisions in relation to suspected terrorists.  Those provisions allow a person to be arrested and detained when his or her testimony is material in criminal proceedings but it is impractical to secure his or her presence by subpoena.  There is no requirement that the person be charged with a criminal offence.  The person’s release can be delayed for a reasonable period of time until the witness’s deposition can be taken.

Many of these reasons for, and justifications of, preventative detention given to us by our overseas colleagues resonated with the rationale for the introduction of preventative detention in this country.

It his Second Reading Speech introducing the Anti-Terrorism (No 2) Bill, the Attorney-General, Philip Ruddock MP, emphasised that the Bill is designed to ensure that ‘we are in the strongest position possible to prevent new and emerging threats, to stop terrorists carrying out their intended attacks’.

These comments underline three points I have made before. 

The first is that the principal and highest priority of these laws is to prevent a terrorist attack, rather than punish the offenders after tens or hundreds of innocent citizens have been killed. 

The second is that the threat of punishment is no deterrent to a suicide bomber.

And the third is that there is nothing unusual in Parliament adjusting our laws to meet new circumstances and threats as they arise.  That happens with laws in all other areas of the Government’s constitutional responsibility.  There is no reason why laws to combat terrorism should be exempt from that standard, routine, democratic process, particularly when the changes have the endorsement of the Council of Australian Governments and are subject to a statutory review in 2010.

Developments in technology

Another concern – one which we share with the United Kingdom and the United States in particular - relates to the rapid advances in communications technology and their impact on telecommunications interception.

Telecommunications interception is a very important tool for both law enforcement and security agencies.  Its importance can be gauged from the details provided in the Telecommunications (Interception) Act 1979 Report for the year ending 30 June 2004.

The Report records ‘a 27% increase in the number of prosecutions commenced and a 48% increase in the number of convictions obtained on the basis of lawfully obtained information.  On a per warrant basis, there were 87 prosecutions and 60 convictions secured on the basis of intercepted information for every 100 warrants issued’ (page 28).

The importance of TI was confirmed by Tony Blunn’s Review of the Regulation of Access to Communications (August 2005).  Mr Blunn found that ‘access to telecommunications data is, and for the foreseeable future will remain, fundamental to effective to security and law enforcement’.

However, he confirmed that ‘new and emerging technologies provide unprecedented levels of security for users and make access for security and law enforcement purposes more problematic’.

Given these concerns, we were very interested to visit Bell Laboratories in New Providence, just outside New York, last July.  Bell Laboratories is a research institute which is now part of Lucent Technologies.  It is an American icon with eleven Nobel prizes to its credit.

Bell officials warned that readily available technology was rapidly moving ahead of our capacity for interception. 

Specific areas of concern included the use of the internet for telecommunications and the development of software programs offering extremely strong encryption.  Taken together, these developments could significantly inhibit our telecommunications interception capacity in future.

There is nothing especially new in this warning, as these technological developments are quite widely known and understood.  For example, Peter Moon pointed out in the Australian Financial Review on 21 February 2006 that, if you are using MS Word or Adobe Acrobat, ‘you can encrypt’ (AFR, page 33, ‘Good security – it’s hardly top secret’). 

Nonetheless, a warning from such a prestigious source as Bell Laboratories carries clout.

The current Australian telecommunications interception regime commenced in the 1980s.  Its basic underpinning concept was to intercept a conversation passing across a telephone landline.  Carriers were, and still are, required to hold a licence to carry telecommunications.  A condition of that licence is that the carrier will provide assistance to approved agencies acting under a telecommunications interception warrant.

Modern telecommunications have moved a long way from that conceptual starting point.  While the Telecommunications (Interception) Act has proved remarkably robust in accommodating some revolutionary developments, the challenge is to keep up with the pace of technological change.

Three particular problems arise in this technology chase. 

First, there is the proliferation of telecommunications providers and the fact that, using the internet, telecommunication services can be provided on a global rather than a national or geographically limited basis. 

Second, telecommunications regulation in other countries such as the United States and the United Kingdom is not as comprehensive as it is in Australia.  This means that, in seeking to adopt a more global approach to telecommunications interception, we are dealing with countries whose laws and regulatory regimes are not as effective as ours. 

Third, widely available software programs with strong encryption capacity have been developed outside Australia and are not subject to the sort of access requirements we have been used to in this country.

In our discussions with Ministers and officials in the United Kingdom and the United States, there was general acknowledgement of this looming problem and an agreed recognition of the significant policy and practical challenges it presents for all of us.

I don’t pretend today to have the answer to all of the issues raised by these technological developments. 

However, I note that, in the last week of March 2006, Parliament passed amendments to the Telecommunications (Interception) Act in response to a number of the issues identified in Mr Blunn’s report.  They include access to stored communications under an appropriate warrant and access to what is known as B-Party interception.

B-Party interception means intercepting communications by a person who may not be involved in the commission of an offence, but who will communicate with someone who is.

CCTV

While we are talking about technology, I was very interested to observe the CCTV coverage in the City of Westminster.  If you ever visit that area of London, you should assume your movements in the street are being watched and perhaps recorded. 

The surveillance is very extensive.  A person can be followed on camera from one side of the street to the other and from one street to another.  While we were in the control room, the operators were monitoring a man behaving strangely.  It turned out that he was a beggar who was aggressively approaching passers by, particularly women. 

The operators reported him to the local police, who we observed arriving on the scene within minutes and bringing the nuisance to an end.  It was a clear illustration of the way in which this municipal program greatly leverages the effectiveness of the police in this part of London.

CCTV is also used in London in two other significant projects. 

One is in the famous Ring of Steel around the City of London.  The City has a limited number of vehicle access points and each one is monitored by CCTV.  A camera photographs each vehicle entering the City, as well as the driver and the number plate.  The photographs are linked to a computer database which instantly identifies any match with a stolen vehicle or vehicle of interest logged in the system.  When a vehicle has been identified in this way, the information is immediately transmitted to the police for appropriate action.

The second is a project called Project Griffin, which has been championed by Don Randall of J P Morgan.  The simple but effective idea behind Griffin is that the large number of security guards employed by private enterprise can be used to assist official authorities in a time of crisis.

Guards in participating organisations are provided with awareness instruction to enable them to assess potential problems and report suspicious behaviour or situations to the police. 

The guards are also advised how to contribute in major emergencies in areas like crowd direction, cordoning off areas, managing conflict and general support to police and emergency services.  Griffin trained guards have their own identifying tabards which they wear when they are on official Griffin duty, such as the response to the July 7 bombings.

Don Randall stressed this is not extra police on the cheap.  It is a sensible utilisation of available private sector resources for the overall public good.  He also pointed out the guards themselves enjoy this enhanced role and are proud to note that they are “Griffin trained” on their resumes.

Identity security

Another area of international concern is accurate individual identification.

On 30 March 2006, Britain’s Identity Card Act received Royal Assent, despite being rejected by the House of Lords on five occasions.  

This Act provides for a National Identity Scheme, which will be phased in over a number of years. It will link basic personal information, such as name and address, to secure biometrics – a computer image of a person’s iris, face or fingerprints.

In a public statement, the then Home Secretary, Charles Clarke said:  ‘I believe the National Identity Scheme will bring major benefits.  It will give UK residents an easy and convenient way to prove their identity; deter illegal immigration and illegal working; help tackle organised crime and terrorism; and provide a means to defend against the abuse of public services.  At the heart of the scheme, a secure national database linking basic personal details to unique biometric information will strengthen, not erode, civil liberties by protecting individual identities’.

However, the passage of this legislation occurred after our visit to the United Kingdom. While we were there, the debate was still in full swing.  In fact, during our stay the Identity Card Bill suffered a major setback when it was defeated and a number of amendments were successfully passed during the Bill’s report stage in the House of Lords.

In speaking about this topic, I want to be absolutely clear that the Australian Government has, as announced by the Prime Minister on 26 April 2006, ruled out introducing a compulsory national ID card. 

In our discussions in London, UK officials told us that the advantages of a formal, Government identity card system included the fact that it would replace a large number of public and private sector schemes relating to proof of identity which are incomplete, overlap and aren’t fully effective. 

The introduction of a Government issued ID would also overcome the problem that currently issued Government documents are utilised by the private sector for identity purposes even though that is not their principal objective. 

Similar concerns have been expressed in the past by United States officials that, for example, the social security number is accepted for a whole range of identity purposes for which the number was never intended to be used.

Much of the debate in the United Kingdom surrounded the likely cost – and uncertainty about the cost - of the ID card scheme.

Another area of debate was to establish the benefits that would be likely to flow from the introduction of an ID card.  Officials acknowledged that the benefits realised by the scheme would, to some extent, be governed by the level of acceptance and usage of the ID card by Government agencies, private sector organisations and individuals. 

An alternative to an ID card that was considered but dismissed was to use a passport as a substitute ID card, on the basis that around 80% of Britons have a passport.

Market testing in the United Kingdom indicated citizens took the view that, if you were going to have an ID card, then it should be an ID card and not a passport.  There were also concerns that the size of the passport would make it inconvenient to carry around on a daily basis and that expanding the use of passports for other than their primary purpose could be subject to a legal challenge.

A final concern was that people without a passport could be marginalised because they didn’t have the most commonly accepted form of proof of their identity.

The UK proposal had voluble critics even though, as the Government pointed out, there was always some level of majority public support for the introduction of identity cards.

Leading critics included the London School of Economics and Political Science which provided a detailed assessment of the UK Identity Card Bill and its implications in a publication called The Identity Project.  The LSE report concluded that the establishment of a national secure identity system has the potential to create significant, though limited, benefits for society.

We met with the LSE project mentors, Simon Davies and Dr Gus Hosein.  They told us the LSE view is that the current UK proposal is too complex, technically unsafe, overly prescriptive and lacks a foundation of public trust and confidence.

Mr Davies and Dr Hosein listed the following objections to the current UK proposal: it was controlled by Government; monolithic; susceptible to theft and fraud; untested and unreliable; and dangerous in security and privacy terms.

In their view, the proposal was overly costly and could lead to what they called ‘cultural dislocation’.  Even so, they could see some benefits in an ID card arrangement if it overcame the problems they listed with the current scheme.

In Australia, we already have a number of initiatives underway to improve identity security in this country. 

They include the development of a national identity security strategy; the establishment of a prototype document verification service to verify the accuracy of documents (such as birth certificates and driver’s licences) which we use as identity documents; and now the introduction of the just announced access card for health and welfare services.

I should note for completeness that the issue of identity security is relevant for both the public and private sectors and for individuals in many other areas of our daily lives. 

They include establishing identity for a variety of government purposes, conducting banking and personal business transactions, proving your identity in the normal course of many daily activities and protecting your identity from misuse by others.

These issues were recognised at last year’s meeting of the Council of Australian Governments.  COAG acknowledged that the preservation and protection of a person’s identity is a key concern and right of all Australians and agreed to investigate reliable, consistent and nationally interoperable biometric security measures which could be adopted by all jurisdictions.

General recognition of the threat of terrorism

Now I want to move on to some more general comments about the perceptions different countries hold about the threat of terrorism.

The first observation is that the Ministers and officials we spoke to generally acknowledged there is a real threat of terrorism in their own country and they need to take steps to prevent a terrorist attack occurring.

This was not always the case. 

For some time after 2001, some countries seemed to believe that the lethal anger behind the September 11 attacks was directed solely at the United States by terrorists radicalised by disadvantage and resentful of Western culture.

But now I think it is fair to say that there is broad agreement in the countries we visited that we are all exposed to terrorism and that the threat will be with us for a long time.

What was interesting was to listen to their different views about the motivations for terrorism and appropriate responses.

For example, the French see North Africa as the major source of their terrorist threat, although one official saw Chechnya as a threat as well.  So the French have adopted a combination of hard and soft policies.

The hard part is to have tough counter-terrorism laws and to deal very firmly with Islamic activists who foment trouble. Foreign imams preaching a radical message have been deported.  

The soft part is to positively discriminate in favour of France’s five million Muslims.  The French view is that humiliation leads to radicalisation.  So the government has appointed a Muslim Prefect and is considering extending voting rights in municipal elections to non-national Muslim residents to better integrate their Muslim population into the French community.

In Spain, we were also told that they saw North Africa (and Morocco in particular) as a major source of their potential terrorist problems.

The view in The Netherlands was similar, and their Minister for Immigration was introducing much stricter immigration controls in the face of considerable controversy.

We met a group of Muslim leaders in The Hague who were also concerned about their separation from the mainstream community.  The Netherlands has a history of using temporary workers, many of whom were Muslim.  Temporary workers were not expected to stay for a long time and therefore no formal steps were taken to integrate them into the community.  Years later, many of them are still there and they feel they are subject to discrimination and exclusion.

After the July 7 bombings, the British Government appointed seven working groups to come up with ways the community could work together to prevent extremism.  Each working group concentrated on a different strand of the overall problem of home-grown terrorism. 

The working groups’ findings are published in a report entitled Preventing Extremism Together.  The report’s recommendations include recommendations about engaging young Muslims in the British community; instilling a more faithful reflection of Islam in the education system; setting up a new advisory body of mosques and imams; and developing a toolkit articulating a new vision for British Islam.

In London, we met Lord Nazir Ahmed who was one of the convenors of the panel of working parties.

Lord Ahmed reinforced the basic finding that there needs to be much greater inclusion of the Muslim community and mainstream engagement in British life.  A major concern was that second generation Muslims did not have any connection to their parents’ country of origin nor did they feel that they had become part of the British community. 

In this isolated situation, unemployment, personal problems and perceptions of disadvantage or other grievance can result in a level of disaffection that has the potential to be fanned into terrorism by a radical imam or charismatic leader.

Lord Ahmed emphasised the need to train imams in England, in preference to bringing possibly radicalised imams from overseas. 

He also advocated conducting, or at least translating, Muslim religious services in the English language.  This would make the mosques more accessible to Muslims from a range of ethnic and language backgrounds and broaden their teaching by addressing more than one narrow ethnic group.

Summary

In summary, I think it is a fair assessment that most of the countries we visited have greatly strengthened their laws and capability to prevent and respond to a terrorist attack.

But more importantly, they recognise that terrorist acts are the extreme tip of an iceberg. 

The iceberg is Muslim discontent and resentment about their perceived disadvantage at the hands of the more prosperous Western countries, fuelled as a starting point in some cases by concerns about the conflict between Israel and Palestine.

They have moved from focussing primarily on prevention and immediate reaction to terrorist attacks to seeking a deeper understanding of, and remedies for, the underlying causes and motivations of today’s terrorism. 

They recognise, as we do, that addressing these causes and motivations – that is, the causes not the symptoms – is the only long term solution. 

But the solution is not going to be easily attained because this is, in the words of the British Prime Minister, a battle of values and beliefs.

In his address to the joint Houses of Parliament on 27 March 2007, Mr Blair said:

‘It is a struggle about values and about modernity – whether to be at ease with it or in rage at it.  To win this struggle we have to win the battle of values as much as arms.  We have to show that these are not Western still less American or Anglo-Saxon values, but values in the common ownership of humanity, universal values that should be the right of the global citizen’.


Robert Cornall AO
Secretary
Attorney-General’s Department

9 May 2006