Media release
Australian Law Reform Commission
Thursday, 5 February 2004
Courts need new laws to protect national security information
New laws providing courts with more sophisticated strategies to protect classified and security sensitive information during espionage and terrorism trials are being considered by Australian law reformers.
Australian Law Reform Commission (ALRC) President David Weisbrot says the proposed new procedures would apply in those rare but difficult cases when the interests of fair and open justice clash with the need to protect information with consequences for national security.
The proposals are set out in a Discussion Paper, Protecting Classified and Security Sensitive Information (DP 67), released today by the ALRC for public comment.
DP 67 is part of an inquiry into the protection of classified and security sensitive information in the course of official investigations and criminal or other legal proceedings. The ALRC is also looking at ways to improve government processes for handling and classifying national security information.
"Recent events here and abroad have sharply heightened public awareness of matters of national and international security," Prof Weisbrot said.
"Prosecutions involving espionage, terrorism and the leaking of national security information have been—and hopefully will remain—quite rare in Australia. However, classified or security sensitive information also may be at the heart of decisions to refuse someone a security clearance, a visa or a passport, or to resist the production of documents under the Freedom of Information Act.
"Such cases are particularly challenging. Our courts and tribunals operate within a strong tradition of open justice. However, there may be reasons of national security to avoid disclosing this kind of evidence in open court or to conceal the identity of an undercover agent, for example.
"At the moment, it isn't clear how far our courts can go to accommodate legitimate national security concerns. As a consequence, the government may be forced to drop or reduce criminal charges against an individual or to settle a civil claim—even though the result is unsatisfactory—because ultimately this better serves Australia's strategic interests," he said.
"It is not simply a matter of balancing the rights of an individual to a fair trial against those of the government to maintain official secrets. There are also compelling public interests in safeguarding national security; facilitating the successful prosecution of spies and terrorists; maintaining the fundamental integrity and independence of our judicial processes; and adhering—to the greatest extent possible—to the principles and practices of open justice and open government.
"It is important to note that our proposals do not increase the powers of the executive government—rather, they provide the courts with flexible mechanisms to safeguard classified and security sensitive information when this is necessary," Professor Weisbrot said.
ALRC Commissioner Mr Ian Davis said the scheme proposed by the ALRC would be set out in a new National Security Information Procedures Act, which would trigger the special procedures as soon it becomes clear that the use of classified or security sensitive information may be an issue in a case.
"The purpose of the proposed new laws is to identify as early as possible all of the issues associated with the protection of such information. The courts would then have at their disposal many strategies for maximising the amount of evidence available for use in the proceedings, consistent with national security considerations."
Mr Davis said these proposed strategies include:
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editing or 'redacting' (obscuring the sensitive parts) classified material before it is admitted into evidence;
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replacing classified material with alternative, less sensitive forms of evidence;
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using technology—such as closed circuit TV and computer monitors—to hide the identity of witnesses or the content of sensitive evidence;
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restricting access to classified material to persons who hold an appropriate security clearance; and
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closing all or part of the proceedings to the public.
"As a last resort, the ALRC is looking at whether a court might even hear part of the proceedings in the absence of one of the parties or its legal representatives. This only would happen in truly exceptional cases, subject to certain safeguards—and, of course, never in a criminal prosecution," Mr Davis said.
Mr Davis said other key proposals included in the Discussion Paper cover:
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improvements to the Commonwealth Protective Security Manual;
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improving the performance of government agencies in classifying and handling national security information;
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implementing a program for the routine declassification of material that is no longer sensitive;
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restructuring the criminal and administrative offences which prohibit the unauthorised disclosure of classified or security sensitive information;
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the use of injunctions to stop the publication of classified or security sensitive information; and
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whistleblowers' protections and procedures for public interest disclosures.
The ALRC will continue its public consultations on the proposals outlined in the DP before completing its final report and recommendations, to be delivered to the Attorney-General of Australia later this year.