Implementation
The National Security Information (Criminal Proceedings) Act 2004
On 27 May 2004, the Australian Government introduced into Parliament the National Security Information (Criminal Proceedings) Bill 2004, accompanied by the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004.
The Bill established a scheme for the handling of national security information in criminal proceedings. However, the Bill dealt only with certain aspects of federal criminal proceedings and did not canvass the much broader range of issues that the ALRC was asked to consider as part of the classified and sensitive security information inquiry.
The Bill was considered by the Senate Legal and Constitutional Legislation Committee, which published its report on 19 August 2004. The Committee made a number of recommendations for amendment of the Bill, many of which were based on ALRC recommendations.
Following the October 2004 federal election, an amended version of the Bill was reintroduced into Parliament, having incorporated a number of the Senate Committee's recommendations. The Bill was passed by both Houses and the National Security Information (Criminal Proceedings) Act 2004 (Cth) commenced operation on 14 December 2004.
The Act largely incorporates the framework and terminology developed by the ALRC, as well as a number of principles and processes that are consistent with those expressed in DP 67 and the final report, although there are some points of departure in detail or in tone between the Act and the ALRC's proposed statutory scheme. A key area where the Act does not reflect the ALRC recommendations relates to the exclusion of the accused and the accused's representative from the court in limited circumstances where the representative does not hold a security clearance. The ALRC's recommendations did not envisage a scenario where there would be criminal proceedings without the presence of the accused or his or her representative and provided courts with a measure of discretion to grant lawyers without security clearances access to national security information essential to the case subject to court imposed conditions and undertakings.
During the Second Reading Debate on the National Security Information (Criminal Proceedings) Bill 2004, the Attorney-General indicated that the Australian Government is preparing a response to recommendations on other topics within the ALRC report.
National Security Information Amendment Legislation Act 2005
The National Security Information Amendment Legislation Act 2005 (Cth) was passed by both Houses of Parliament in June 2005, and commenced operation on 3 August 2005. This Act introduced a similar regime to that put in place by the 2004 Act, but applying to classified and security sensitive information in civil proceedings. The legislation changed the title of the National Security Information (Criminal Proceedings) Act 2004 to the National Security Information (Criminal and Civil Proceedings) Act 2004. The Bill was considered by the Senate Legal and Constitutional Legislation Committee, which published its report on 11 May 2005.
Secrecy Provisions
ALRC 98 included a number of recommendations to review all legislative and regulatory provisions giving rise to a duty not to disclose official information, including secrecy provisions.
On 5 August 2008, the ALRC received Terms of Reference from the Attorney-General of Australia to consider options for ensuring a consistent approach across government to the protection of Commonwealth information, including the scope and appropriateness of legislative provisions regarding secrecy and confidentiality.
Protective Security Manual
ALRC 98 included a number of recommendations concerning the Australian Government Protective Security Manual (PSM), including that it be in the public domain. In September 2005, the Australian Government Attorney-General’s Department released a revised PSM. Although the ALRC consulted with the Department throughout the inquiry regarding the PSM, the recommendations made in ALRC 98 in relation to the PSM have not been implemented, and the PSM is not available in the public domain.