This inquiry, which began in April 2003, examined measures to safeguard classified and security sensitive information during court or tribunal proceedings, or in the course of other investigations—including those relating to criminal prosecutions, civil suits, immigration matters or freedom of information applications.
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:
- safeguarding national security and strategic interests;
- facilitating the successful prosecution of individuals who engage in acts of terrorism or espionage;
- maintaining the fundamental fairness, integrity and independence of our judicial processes; and
- adhering, to the greatest extent possible, to the principles and practices of both ‘open justice’ and open and transparent executive government.
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.
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.
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).
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.
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.
A full list of recommendations made in ALRC Report 98 is contained within the report.