Main recommendations
A National Security Information Procedures Act
Open government
Practice and procedure in classifying information
Prevention and punishment of unauthorised disclosures
Security clearances
Full list of recommendations made in ALRC 98
A National Security Information Procedures Act
The central recommendation of the Keeping Secrets report is the introduction of a National Security Information Procedures Act to govern the use of classified and security sensitive information in all stages of proceedings in all courts and tribunals in Australia (except where expressly displaced by other legislation).
The essential purposes behind the scheme set out in the National Security Information Procedures Act are to:
-
identify and bring forward as early in the proceedings as practicable—preferably before the trial—the issues associated with the admission, use and protection of any classified and security sensitive information;
-
provide the court with a wide range of possible methods of maximising the amount of evidence available for use in the proceedings—ensuring that fairness is afforded to all parties (including the Crown) and public access is not unduly restricted; and
-
leave the Government with the ultimate option to withhold extraordinarily sensitive information where it considers that (following the court’s final rulings on these issues) the risks associated with disclosure outweigh all other considerations (including gaining a criminal conviction at trial or successfully defending a civil action). However, the court or tribunal retains the final power to determine how the proceedings will go ahead in the light of the Government’s decision about whether or not to produce the evidence.
The ALRC’s recommended scheme would give the court a range of options to tailor orders to suit the exigencies of the particular case, including (but not limited to):
-
admitting the sensitive material after it has been edited or ‘redacted’ (that is, with the sensitive parts obscured);
-
replacing the sensitive material with alternative, less sensitive forms of evidence;
-
using closed-circuit TV, computer monitors, headphones and other technical means to hide the identity of sensitive witnesses or the content of sensitive evidence (in otherwise open proceedings);
-
limiting the range of people given access to the sensitive material (for example, limiting access only to those with an appropriate security clearance);
-
closing all or part of the proceedings to the public; and
-
hearing part of the proceedings in the absence of one of the parties and its legal representatives—although not in criminal prosecutions or civil proceedings (except some judicial review matters), and only in other exceptional cases, subject to certain safeguards.
[back to top]
A comprehensive public interest disclosure scheme should be introduced in legislation to clarify whistleblowers’ protections and the procedures for investigating public interest disclosures, especially those that relate to classified or security sensitive information, or the defence and intelligence agencies.
[back to top]
Practice and procedure in classifying information
Improvement should be made to the structure, content and enforceability of the Commonwealth Protective Security Manual.
Practice and procedure in the classification and handling of sensitive material by government agencies should be improved, with the necessary guidelines, education and training provided to government officers for these purposes.
The monitoring of the compliance by government agencies with the protective security standards should be tightened and improved.
A system of periodic review of classified material should be introduced, with a view to declassification or reduction in classification—and mandating the automatic declassification after 30 years of material that is no longer sensitive, subject to any specific contrary decision taken at the time (as is the case in most comparable countries).
[back to top]
Prevention and punishment of unauthorised disclosures
The Australian Government should undertake a comprehensive review of all laws and regulations that give rise to a duty not to disclose, to clarify (among other things): whether the prescribed conduct will result in administrative action or criminal liability; the elements of the various offences including whether it is necessary to show that the disclosure of the information is likely to, or did in fact, harm the public interest); and to consider the need for the introduction of a new, lower order offence of strict liability which could be heard summarily.
The use of injunctive relief should be facilitated to prevent the threatened publication of classified or security sensitive information.
[back to top]
The National Security Guideline in the Legal Aid Guidelines—which requires lawyers receiving legal aid funding in matters relating to Australia’s national security to be security cleared—should be rescinded, with all lawyers to be dealt with under the same general regime established in the recommended National Security Information Procedures Act.
Having regard to Chapter III of the Australian Constitution, no security clearances should ever be required for judges, or for members of a jury.
[back to top]
A full list of recommendations made in ALRC 98 is contained within the report.