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Big Data Technology and National Security, Comparative AUSTRALIA REPORT Big Data Technology and National Security Comparative International Perspectives on Strategy, Policy and Law Law and Policy Program Data to Decisions Cooperative Research Centre June 2018 Research Team Professor Louis de Koker, Program Leader Professor Janet Chan, Project Leader Professor Danuta Mendelson, Key Researcher Associate Professor Lyria Bennett Moses, Key Researcher Dr Alana Maurushat, Key Researcher Mr David Vaile, Key Researcher Mr Mike Gaffney, Researcher Mr Gregory Sadler, Researcher Mr Patrick Grierson, Researcher Mr Daniel Cater, Research Assistant Other research assistants Ms Alana James Ms Sonam Gordhan Mr Jax Arnold Interns (in alphabetical order) Ms Kendy Ding Mr Ciaran Finnane Ms Monica Ma Mr Kevin Tsu Mr Atul Vidhata Mr Vincent Wan Ms Jacqueline Yip Australia Report ii Australia Report Authors Chapter 1: The Australian Legal Context 1.1-1.4: Louis de Koker 1.5-1.6: Danuta Mendelson Chapter 2: Using Big Data for National Security: Stakeholders’ Perspectives 2.1-2.4: Janet Chan 2.5-2.6: Lyria Bennett Moses Chapter 3: Big Data, Law Enforcement and National Security: The Legal Environment in Australia 3.1. Is access for data mining enabled? Louis de Koker; Observations Lyria Bennett Moses, Louis de Koker 3.2. Are legal controls comprehensive and proportional? Danuta Mendelson; 3.2.3 Danuta Mandelson, David Vaile; Table 3.1 David Vaile, Alana James; 3.2.9 David Vaile; Observations Lyria Bennett Moses, Louis de Koker; Concluding Observations Danuta Mendelson 3.3. Are legal rules clear, principle-based, consistent and instructive Louis de Koker; 3.3.1 Louis de Koker, David Vaile; Table 3.2 David Vaile; 3.3.2 Lyria Bennett Moses; Observations Lyria Bennett Moses, Louis de Koker 3.4. Is integrity of data and analysis supported? Louis de Koker; Observations Lyria Bennett Moses, Louis de Koker 3.5. Are data and systems protected? Louis de Koker; Observations Lyria Bennett Moses, Louis de Koker 3.6. Is accountability maintained? Louis de Koker; Observations Lyria Bennett Moses, Louis de Koker 3.7. Are principles and rules regularly reviewed? Louis de Koker; Observations Lyria Bennett Moses, Louis de Koker 3.8. Is there a sufficient measure of transparency? Louis de Koker; Observations Lyria Bennett Moses, Louis de Koker, David Vaile Chapter 4: Conclusion 4.1: Lyria Bennett Moses, Janet Chan 4.2: Louis de Koker, Lyria Bennett Moses; 4.2.2 Danuta Mendelson Interviews Lyria Bennett Moses, Alana Maurushat, Janet Chan, Louis de Koker Qualitative analysis Lyria Bennett Moses, Janet Chan Research assistance Mr Daniel Cater Technical editing Mr David Vaile Other Reports from this Project Methodology Report UK Report Canada Report Comparative Report Select Bibliography Technical References [for Australia Report] Australia Report iii Contents List of tables ........................................................................................................................v List of Figures ..................................................................................................................... vi 1. THE AUSTRALIAN LEGAL CONTEXT ........................................................................................ 1 1.1. Intelligence and national security – contours of the policy discussion ................... 1 1.2. National intelligence and law enforcement agencies .............................................. 2 1.3. Selection of agencies and laws for purposes of this study ...................................... 6 1.4. Terminology ............................................................................................................. 8 1.5. Australian constitutional framework and concepts ................................................. 9 1.6. Principle of legality ................................................................................................. 13 2. USING BIG DATA FOR NATIONAL SECURITY: STAKEHOLDERS’ PERSPECTIVES .................... 16 2.1. Current use of data ................................................................................................ 16 2.2. Current concerns regarding access to and sharing of data ................................... 26 2.3. How problems can be overcome ........................................................................... 33 2.4. Big Data: potentials, limits and risks ...................................................................... 36 2.5. Regulation .............................................................................................................. 64 2.6. Values and Big Data ............................................................................................... 99 3. BIG DATA, LAW ENFORCEMENT AND NATIONAL SECURITY: THE LEGAL ENVIRONMENT IN AUSTRALIA ..................................................................................................................... 123 3.1. Is access for data mining enabled? ...................................................................... 123 3.2. Are legal controls comprehensive and proportional? ......................................... 141 3.3. Are legal rules clear, principle-based, consistent and instructive? ..................... 168 3.4. Is integrity of data and analysis supported? ........................................................ 172 3.5. Are data and systems protected? ........................................................................ 177 3.6. Is accountability maintained? .............................................................................. 184 3.7. Are principles and rules regularly reviewed? ...................................................... 206 3.8. Is there a sufficient measure of transparency? ................................................... 209 4. CONCLUSION ..................................................................................................................... 214 4.1. Using Big Data for national security: Stakeholders’ perspectives ....................... 214 4.2. Big Data, law enforcement and national security: The legal environment in Australia ............................................................................................................... 221 Australia Report iv List of tables Table 1-1: Australia’s national security agencies and authorities (as per the government) .................. 5 Table 1-2: Federal national security and law enforcement agencies studied ........................................ 8 Table 2-1: General Attitudes towards Computer Technology by Role in Operational Organisations (n=19) ......................................................................................................... 16 Table 2-2: Type of Data Used by Nature of Organisation (n=19) ........................................................ 17 Table 2-3: Type of Data Generated by Nature of Organisation (n=19) ............................................... 20 Table 2-4: Sharing of Data between Organisations .............................................................................. 22 Table 2-5: Main purpose of Using Data by Role in Organisations (n=19) ............................................ 25 Table 2-6: Current Concerns re Use of Data by Role in Organisations (n=16) ..................................... 27 Table 2-7: Current Concerns by How Problems Can Be Overcome (n=19) .......................................... 33 Table 2-8: Use of Big Data by Role and Type of Organisation (n=38) .................................................. 45 Table 2-9: Current Use of Data Analysis Tools by Role in Organisations (n=19) ................................. 46 Table 2-10: Barriers/Challenges to Use of Big Data by Role and Type of Organisation (n=37) ........... 47 Table 2-11: Risks of Using Big Data by Role of Research Participant (n=38) ........................................ 53 Table 2-12: Who is exposed to risks of Big Data by Role of Participant (n=16) .................................... 59 Table 2-13: How Big Data Risks can be Managed (n=38) ..................................................................... 61 Table 2-14: Legislation and regulatory material identified by research participants according to (1) organisation sector, and (2) type of role and organisation (n=28).......................... 66 Table 2-15: Evaluation of appropriateness and effectiveness of laws, regulation and oversight by research participants (n=28) ........................................................................................ 74 Table 2-16: Mitigation of issues/risks associated with data analytics/storage systems through design ................................................................................................................................ 85 Table 2-17: Policy participants’ attitudes to privacy (n=15) ............................................................... 101 Table 2-18: Responses to general kidnapping scenario and specific prompts ................................... 105 Table 2-19: Views of research participants with policy roles on transparency of data and algorithms ....................................................................................................................... 111 Table 2-20: Sources of views of Policy group ..................................................................................... 121 Table 3-1: Legislation affecting disclosure.......................................................................................... 164 Table 3-2: Examples of agency categories in the current framework ...............................................
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