Smoke and mirrors and motorbikes

A growing level of international controversy has accompanied the ongoing revelations of the ubiquitous electronic surveillance capabilities and activities of various states, ostensibly under the guise of counter-terrorism. The community is at a great disadvantage in understanding the meaning and implications of such disclosures because of the secrecy that invariably surrounds national security issues and state-sanctioned spying. Officials routinely respond to media inquiries about such activities with "we never comment on national security matters", and in many respects it is in the state's interests for such activities and capabilities to remain opaque.

Effectively ensuring the accountability of the various organs of state security remains a constant challenge in a liberal democracy. While the community determines an acceptable balance between national security and civil liberties through legislation, it has to rely on secret oversight mechanisms to ensure state surveillance activities remain proportionate and within the law. This necessitates a level of community trust in the efficacy of the oversight mechanisms, and confidence in the professionalism and integrity of those working in the various security and intelligence organisations. There is potential for this trust to be exploited when ill-defined threats to national security (such as terrorism) cause anxiety and fear within the community.

Despite widely-reported intelligence failures the community remains largely oblivious to the nature and inherent limitations of intelligence advice and its general unsuitability for use in the public domain. Community confusion is understandable given the amorphous and ambiguous way that intelligence is officially defined, even amongst the various security agencies. Some agencies define intelligence as secretly obtained information, with anything and everything collected covertly designated as intelligence product. For others intelligence is created through the analysis and interpretation of available information to reveal new insights (the application of inductive logic to develop reasonable inferences from limited premises).

The distinction as to what constitutes intelligence product has important implications for the accuracy and reliability of intelligence advice. Secretly obtained information may or may not be factual (remember reports on WMD in Iraq), while interpreted information is intrinsically fallible due to the element of judgement involved. This issue was explored in detail by Justice Hope during the two royal commissions into Australian intelligence organisations in the 1970s and 1980s. Justice Hope recognised that intelligence is created through the disciplined application of rigorous analysis and critical thinking, and acknowledged the limitations of intelligence product as the basis for public policy or as evidence in legal proceedings

Issues concerning the accuracy and reliability of intelligence advice and the effective oversight and accountability of security agencies have taken on greater significance since the terrorist attacks on 11 September 2001 (9/11). The horror and fear that these highly visible attacks generated transformed conceptions of security across the world. The threat posed by transnational terrorism was perceived to be so severe and immediate that the existing balance between state security and civil liberties was effectively compromised by the contingencies of a militaristic response under the "global war on terror". The powers of security agencies were broadened and the reach of the "secret state" expanded in the face of the threat of terrorism. In Australia the budget for the intelligence agencies increased by 400% in the decade following 9/11.

In the period since 9/11 the threat of terrorism has remained as a menacing and ever-present prospect that continues to dominate national security priorities in Australia. Counter-terrorism imperatives have subtly challenged long-established conventions that institutionalise the separation of powers and enforce checks and balances to limit the abuse of authority. In a security environment permeated by a latent fear of domestic terrorism, officials and politicians have sought to broaden the scope of national security and facilitate the convergence of the (traditionally separate) military, law enforcement and intelligence functions. The vision in the Australian Government's 2013 "Strategy for Australia's National Security" is for "a unified national security system that anticipates threats, protects the nation and shapes the world in Australia's interest". Key national security risks span military, law enforcement and intelligence responsibilities. This theme is replicated in the Australian Crime Commission's 2013 "Organised crime in Australia" report that notes that "Such is the risk posed by organised crime that governments around the world … have recognised for some time that organised crime has implications for national security. Australia's National Security Strategy … lists serious and organised crime as one of the seven key national security risks".

Now part of the national security architecture, the Australian Crime Commission's role is to collect, collate, analyse and disseminate criminal intelligence to a variety of stakeholders. Given Justice Hope's prescient observations about the limitations of intelligence for use in public policy and legal processes, it seems reasonable to evaluate the quality and impact of the ACC's public assessments. Such an evaluation is complicated by the fact that the specific meaning and connotations of the term "organised crime" are only vaguely defined. Do the ACC's assessments reflect careful, thoughtful, balanced and discerning judgements based on the rigorous analysis of incomplete and sometimes conflicting information? What are the foundations for the agency's conclusions about the nature and extent of the threats posed by organised criminal activities and groups?

The introduction to the ACC's 2013 "Organised crime in Australia" report makes a series of statements that are so general as to be indeterminable, and the term "organised crime" is used (on fifty eight occasions) to infer a monolithic entity. The introduction states that "organised crime has become more pervasive, more powerful and more complex"; "organised crime now seems to have no borders or geographical constraints"; "organised crime is now a part of the everyday lives of Australians in ways that are unprecedented"; "today, any Australian on any day can be affected by organised crime"; "organised crime not only has a direct impact on individuals, but also affects our communities, our economy, ours government and our way of life".

The ACC's assessments on outlaw motorcycle gangs (OMCGs) appear to constitute a major part of the rationale for nationally-coordinated and high-profile law enforcement action against these groups, described in some sections of the media as a "war on bikies". Law enforcement has historically had great antipathy towards the highly visible and openly defiant (some may say threatening) members of self-described anti-social groups like OMCGs, but have had limited success in establishing the extent of organised criminal conspiracy within these groups (as distinct from the criminal activities of individual members). For many years some in law enforcement have (unsuccessfully) sought access to US-style Racketeer Influenced and Corrupt Organisation (RICO) legislation that would enable the prosecution of individuals based solely on their association with other criminals rather than individual criminal activity.

A July 2013 ACC crime profile on OMCGs states "some members of outlaw motorcycle gangs are responsible for serious criminal offences and form part of organised crime networks". The crime profile later states that "aside from these examples of group violence, most OMCG chapters do not engage in organised crime as a collective unit. Rather their threat arises from small numbers of members conspiring with other criminals for a common purpose".

These vital caveats (that only "some members" or "small numbers" are involved in organised criminal activities, and that most OMCG chapters per se are not organised crime groups) have not been reflected in widely-reported ACC statements that "outlaw motorcycle gangs remain one of the most high profile manifestations of organised crime" and "OMCGs have become one of the most identifiable components of Australia's criminal landscape". Such emphatic public statements have undoubtedly provided significant impetus for current state policing operations to indiscriminately "hunt down" all OMCG members. (Intriguingly, there is a discrepancy of 1500 OMCG members between the ACC's July 2013 crime profile that estimates 6000 members and an ACC media release in October 2013 that estimates 4483 members).

These examples illustrate the inherent risks of selectively reporting potentially fallible intelligence advice that may reflect the narrow perspectives of particular security agencies.