Outline of the report
Cases involving espionage, terrorism and the leaking or misuse of national security information have been—and hopefully will remain—rare in Australia. However, such cases do arise: the successful prosecutions of Australian intelligence officers Simon Lappas (in Australia) and Jean-Philippe Wispelaere (in the US) for attempting to sell classified national security information are examples.
Criminal prosecutions highlight these issues of protecting classified and security sensitive information most starkly, but problems of principle and practice can arise in a wider array of matters.
Classified and security sensitive information is used in administrative decision making by government officials in circumstances that may give rise to subsequent legal proceedings. For example, such information may be at the heart of a decision to refuse someone a requested security clearance, or to refuse someone a visa, or to revoke a passport, or to resist the production of documents under Freedom of Information laws.
Although less common, classified and security sensitive information also may be relevant evidence in a civil suit for damages, particularly where the Government is a party.
The terms of reference for this inquiry asked the ALRC to assess the effectiveness of the various existing mechanisms designed to prevent the unnecessary disclosure of classified and security sensitive information in the course of official investigations and criminal or other legal proceedings.
The ALRC also was asked to report on whether there are any other approaches, including non-regulatory alternatives, which would improve performance in this area.
The ALRC’s challenge in this inquiry was to develop mechanisms capable of reconciling, so far as possible, the tension between disclosure in the interests of fair and effective legal proceedings, and non-disclosure in the interests of national security. It would be an oversimplification, however, to characterise the task as striking a balance between the right of an individual to a fair and open trial with the need of the Government to maintain official secrets. Due consideration and weight also must be given to the broader and compelling public interests in:
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safeguarding national security and strategic interests;
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facilitating the successful prosecution of individuals who engage in acts of terrorism or espionage;
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maintaining the fundamental fairness, integrity and independence of our judicial processes; and
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adhering, to the greatest extent possible, to the principles and practices of both ‘open justice’ and open and transparent executive government.
The Executive Summary in ALRC 98 Keeping Secrets contains a good, basic summary of the key findings and recommendations in the report.