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Gunning, Patrick --- "Beyond LEAN" [1994] PrivLawPRpr 59; (1994) 1(4) Privacy Law & Policy Reporter 75

Beyond LEAN

Australian Government Report Of The Review Of Commonwealth Law Enforcement Arrangements February 1994, AGPS, 437 pp

As part of the 1993-1994 Budget process Cabinet announced a general review of the Commonwealth's structures and goals in the field of law enforcement. The review was conducted by a steering committee of senior public servants chaired by Bill Coad, the Director of the Australian Transaction Reports and Analysis Centre (AUSTRAC). The committee was faced with a short time-frame given the enormity of its task; recommendations were to go to Cabinet in February 1994 for consideration in the 1994-1995 Budget. From a privacy perspective there are a number of noteworthy recommendations made by the committee.

Is it really dead?

The Review recommends that development of the Law Enforcement Access Network (LEAN) should cease (see (1994) 1 PLPR 21). Amongst the reasons cited are that the Commonwealth was having difficulty obtaining land titles data from all the State governments and that so far as information provided by the Australian Securities Commission (ASC) to LEAN is concerned, it would be cheaper and more efficient to allow the ASC to allow access to its databases directly.

Most of the discussion of LEAN occurs in Appendix 11, a report prepared by Tony Rossiter, an information technology consultant, on the topic of ''intelligence and investigative computer systems'. Rossiter observes that ''the concept of LEAN is undergoing some change, and more emphasis is being placed on leaving data in situ and providing gateway services to law enforcement to facilitate their access to the data at source.' This language suggests that while LEAN as originally conceived may be dead, it is likely that a system with similar functionality may emerge in the future. The remainder of the report is consistent with this conclusion.

OSCA to co-ordinate surveillance?

As a long term measure the committee recommended the creation of a statutory Commonwealth Law Enforcement Board (the Board). The Board is to be comprised of the principal officers of the Australian Federal Police, the National Crime Authority, the ASC and the Attorney-General's Department. Its main role is to improve the Commonwealth's access to law enforcement information and to facilitate communication between mainstream Commonwealth agencies and law enforcement agencies.

One of the particular tasks of the Board will be to prepare a five year plan for information technology investment in Commonwealth law enforcement and to improve technical co-ordination on information technology matters. Another specific task of the Board will be to oversee the activities of a new organisation to be known as the Office of Strategic Crime Assessment (OSCA). OSCA's function is ''to provide the government with over-the-horizon assessments of the criminal environment' and to ''develop links with national information and databases'. Yet another function of the Board will be to implement a system which ensures the effective co-ordination of the Commonwealth's law enforcement effort. Implementation will be by way of a National Law Enforcement Intelligence Committee, chaired by the director of OSCA and with membership from various Commonwealth and intergovernmental law enforcement agencies and ''departments which will use the law enforcement product'.

Despite the rather confusing structure of the proposed organisations it seems relatively clear that the Commonwealth intends to develop an information technology based ''law enforcement product' which is likely to be available to a variety of departments, presumably including those which were to have access to LEAN. Given the involvement in the proposed National Law Enforcement Intelligence Committee of representatives from intergovernmental organisations such as the Australian Bureau of Criminal Intelligence and the National Exchange of Police Information it may be realistic to suggest that the ''law enforcement product' will go beyond being a compilation of information available in various public registers. If this were so, the product has the potential to generate even stronger concerns from privacy advocates than those voiced in relation to LEAN.

Unresolved 'tension' with privacy

The report acknowledges that ''there has been ongoing tension between some of the law enforcement agencies and the Commonwealth Privacy Commissioner about the extent of the use of information technology for law enforcement purposes'. Unfortunately, there is little analysis of the reasons for this tension or the methods by which the tension may be diffused. The Review rather lamely concludes that

government, the Parliament and privacy interests need to be persuaded to accept that law enforcement cannot be forced to take a Luddite approach to computing. ... Equally so, the law enforcement community cannot expect to operate information technology systems with data matching and exotic analysis on a "willy nilly" basis. There needs to be privacy guardianship. Thus it is neither proper for the Privacy Commissioner to set unrealistic guidelines nor for law enforcement to react on a "head butt" basis.

In summary, the committee's report gives a valuable insight into the future development of potentially privacy invasive systems for use by law enforcement agencies. In releasing the Report the Minister for Justice indicated that Cabinet intended to act on the recommendations to create the Board and OSCA. Appropriations for these bodies were made by the 1994-1995 Budget (see BudgetStatements, s8B, ''Law, Order and Public Safety'). However, it is disappointing that the question of how to balance the competing public interests of privacy and law enforcement was essentially avoided. All eyes will now be focussed on the activities of the Board and OSCA

Patrick Gunning


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