Media release
Australian Law Reform Commission
23 June 2004
Justice system must adapt to meet terror challenges: ALRC
Increased concerns over international terrorism and Australia’s national security mean our courts and tribunals must change the way they operate when dealing with classified and security sensitive information, the Australian Law Reform Commission (ALRC) said today.
“The protection of classified security information goes to the heart of the defence of the nation, including the maintenance of critical international relationships and the continued flow of intelligence information.
“Courts, tribunals and government agencies need clearer and more refined procedures to ensure the proper handling of such highly sensitive material,” ALRC President Professor David Weisbrot said.
“After extensive consultation in Australia and overseas—including with the intelligence community—the ALRC has devised a sophisticated strategy that would allow courts and tribunals to provide a high degree of protection for sensitive information—without compromising the fundamental fairness, integrity and independence of our judicial system.”
Prof Weisbrot’s comments follow the release of a major ALRC report, Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98), tabled in federal Parliament today. The 572-page report, which follows more than a year of research and consultation, makes 80 recommendations for reform.
“Criminal trials involving allegations of espionage, terrorism and the improper disclosure of national security information have been rare in Australia. Unfortunately, however, we can expect increasing numbers of these types of matters, reflecting global tensions and local concerns.
“The use of classified and security sensitive information is also increasingly likely to surface administrative decisions to refuse someone a security clearance, a visa or a passport, or to resist the production of documents under Freedom of Information laws—so our justice system must be prepared.”
Prof Weisbrot said the major challenge for the ALRC in this inquiry went beyond simply balancing the rights of the individual (to a fair trial) against the needs of the Government (to maintain official secrets).
“That oversimplifies the complexity of the legitimate, competing interests. Consideration also must be given to the broader and compelling public interests in safeguarding national security and strategic interests; facilitating the successful prosecution of terrorists and spies; and adhering, to the greatest extent possible, to the principles and practices of both ‘open justice’ and open and accountable government.
Prof Weisbrot said a central recommendation is the introduction of a new National Security Information Procedures Act, which would apply to all Australian courts and tribunals.
The Australian Government recently introduced into Parliament the National Security Information (Criminal Procedures) Bill 2004, relating to the protection of classified information in criminal trials.
He said the Government Bill “largely incorporates the framework and terminology we developed, as well as a number of principles and processes that are consistent with those expressed by the ALRC—but there are also some differences in detail. While the Bill focuses on certain aspects of criminal proceedings, the Government asked the ALRC to provide advice on a much broader range of issues”.
“Keeping Secrets starts from basics, suggesting many improvements to the practices and procedures used by government officers in classifying and handling national security information; promoting better monitoring of compliance; and, at the other end of the spectrum, restructuring the offences which punish the improper disclosure of classified information, whether by negligence or malice.
“A unique feature of the ALRC’s National Security Information Procedures Act is the identification—as early as possible, and preferably before any legal proceedings—of the need for a court or tribunal to tailor the most effective strategies to protect security sensitive information,” Prof Weisbrot said.
“At the moment, there are no clear statutory guidelines for Australian courts and tribunals, contrary to the position in the US, the UK, Canada, NZ and elsewhere. We have considered the various schemes used overseas and selected or adapted the best features for use here.
“The courts would have at their discretion many techniques for maximising the amount of evidence available for use in the proceedings, consistent with considerations of fairness and national security.”
Prof Weisbrot said these techniques would 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; and
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using technology—such as closed circuit TV and computer monitors—to shield the content of sensitive evidence or to hide the identity of a sensitive witness (such as intelligence agent).
Given that this process should occur before trial, the Crown also would have the opportunity to drop some charges, or vary the charges, or try to secure a guilty plea, where this is believed to be the best way to protect especially sensitive information, and to serve the interests of justice.
On the contentious issue of security clearances, the ALRC concluded that it would be unconstitutional to require judges and juries to undergo security clearances, even if classified information is an issue in legal proceedings. However, the position regarding lawyers is somewhat different.
“Under our recommendations, courts can restrict access to classified material only to those lawyers who hold (or obtain) an appropriate security clearance, or to require strict undertakings from lawyers about how they deal with the information, or both.
“The proper focus should not be on the dignity or convenience of the lawyer, but rather on the client receiving the best possible representation in circumstances in which highly classified information must be protected. The central involvement of the court should guard against any unfairness.”
Other key recommendations made in the ALRC’s Keeping Secrets report include:
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a comprehensive government review of all laws and regulations that give rise to penalties for improper disclosure of official secrets;
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implementing a program for the routine declassification of material that is no longer sensitive;
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the introduction of legislation to clarify the protection given to legitimate whistleblowers; and
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improvements to the content and organisation of the Commonwealth Protective Security Manual, which governs most aspects of official policy and practice in this area.