Terms of Reference

Review of measures designed to protect classified and security sensitive information in the course of investigations and proceedings

I, DARYL WILLIAMS, Attorney-General of Australia, acting pursuant to section 20 of the Australian Law Reform Commission Act 1996 refer the following matter to the Australian Law Reform Commission for inquiry and report pursuant to s 20(1) of the Australian Law Reform Commission Act 1996:

Measures to protect classified and security sensitive information in the course of investigations and proceedings. ‘Security sensitive information’ is information that has implications for Australia’s security but is not formally classified, for whatever reason.

1. The Commission shall consider, among other matters:

a. The operation of existing mechanisms designed to prevent the unnecessary disclosure of classified material or security sensitive material in the course of criminal or other official investigations and court or tribunal proceedings of any kind, including:

• common law public interest immunity;
• section 23V of the Crimes Act 1914 in relation to the provision of material to suspects and any other relevant provisions;
• section 85B of the Crimes Act 1914 in relation to in camera proceedings;
• the enforceability of Commonwealth protective security standards as set out in the Commonwealth Protective Security Manual;
• other mechanisms available to investigators and the courts to limit the disclosure of classified or security sensitive material including redaction and excision of sensitive material from classified documents; and
• whether existing mechanisms adequately protect security sensitive information.

b. International practice with regard to the protection of classified or security sensitive information in the course of criminal or other official investigations and court or tribunal proceedings of any kind;

c. Training, functions, duties and role of judges, judicial officers, tribunal members and lawyers in relation to the protection of classified and security sensitive information that is or may be presented to the court;
d. Training, functions, duties and role of investigators in relation to the protection of classified and security sensitive information that is obtained or used in the course of any investigation or court or tribunal proceedings; and
e. Any related matter.

2. The Commission shall consider the need for regulatory measures designed to protect classified information or security sensitive material in the course of criminal investigations and proceedings including:

1. Assessing the practical implications of any recommendations for measures; and
2. Assessing alternatives, including non-regulatory alternatives.

3. The Commission will consult widely with the public and key stakeholders.

4. The Commission is to report not later than 29 February 2004.

Dated: 2 April 2003

Daryl Williams

Attorney-General