In the modern world, many issues related to criminal law – for example terrorism, cyber security, immigration, foreign interference, encryption, and illicit finance – are not confined within national borders. Consequently, efforts to prevent and punish such activities also take on an international dimension. The Australian Government is an active participant in these efforts.
What is the Five Eyes?
The ‘Five Eyes’ is an alliance of nations for the purpose of joint cooperation on matters of intelligence. It is comprised of Australia, Canada, New Zealand, the United Kingdom, and the United States. In practical terms, it means that security and intelligence agencies from the Five Eyes nations share sensitive intelligence information with each other and coordinate efforts to combat serious international and transnational criminal activity.
Recent activities of the Five Eyes
Relevant ministers from each of the Five Eyes nations met in late August 2018 on the Gold Coast to discuss their collaborations on ‘common security challenges’. The official communiqué from this meeting sets out the key themes of the Five Eyes’ discussions and priorities.
Freedom, openness, and security of the internet
The Five Eyes Ministers agreed to a Joint Statement on Countering the Illicit Use of Online Spaces which focussed on the role of digital industry companies in combatting the promulgation of child exploitation and terrorist material via the internet. Particular attention was paid to future development of capabilities to prevent the upload of such materials, including major companies assisting smaller companies utilise such technologies. The Ministers also promoted the enhancement of communication between the digital industry and governments regarding the posting of illicit and malicious online content.
Given that the detection of terrorist movements relies upon rapid information sharing, the Ministers committed to additional sharing of information about known or suspected terrorists. Support was also given to cooperating in efforts to prosecute returning foreign fighters. Further, the Five Eyes agreed to establishing a new ‘Aviation Security 5’, specifically related to combating threats in the aviation sector.
Noting that ‘the cyber domain is a vector for threats posed by hostile state actors, criminals, terrorist networks and hacktivists’, the Five Eyes Ministers affirmed their resolve to combat such activity and agreed to strengthen the connections between their nations’ cyber watch offices. The cooperation will extend to the protection of critical infrastructure and preparations for emerging technologies.
Migration and border issues
Given the interconnectedness of the global economy, the Ministers agreed to work towards ‘touchless’ borders for legitimate travellers and trade. In response to ‘the increasing volume of irregular movements’, the Five Eyes also committed to strong border management and working with other entities to build capacity in countries of origin. Further, the Ministers committed to establishing a taskforce to combat modern slavery, human trafficking and forced labour.
The Five Eyes Ministers committed to the creation of a mechanism to share developments and approaches to combatting foreign interference, stating that such action ‘threatens a nation’s sovereignty, values and national interests’. This would include the sharing of information about foreign interference activities.
Whilst acknowledging that encryption ‘is vital to the digital economy, a secure cyberspace and the protection of personal, commercial and government information’, the Five Eyes noted that encryption is also used in terrorist and criminal activities. It was also stated that the inability to access such information poses a challenge for law enforcement and requires urgent law reform. Consequently, the Five Eyes agreed to a Statement of Principles on Access to Evidence and Encryption. The Statement affirms the principles, in relation to encryption, of:
- Mutual responsibility of all stakeholders involved in the provision of technology services;
- The rule of law and due process being paramount in any assistance requested by governments of technology providers; and
- Freedom of choice being given to technology providers to create solutions enabling authorities to lawfully access encrypted information.
Criminal information sharing
The Five Eyes Ministers agreed to convene an extraordinary meeting of operational and policy agencies with responsibility for law enforcement, border protection and criminal justice. This meeting is intended to advise ministers on potential improvements to information sharing and collaboration in order to support better responses to serious criminal threats.
The Five Eyes Ministers agreed to support the G20 and Financial Action Task Force in their efforts to combat illicit finance and agreed to collaborate between their respective financial intelligence units on this issue.
Nyman Gibson Miralis specialise in all aspects of international criminal law.
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