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Australian Law Reform Commission Keeping Secrets REPORT The Protection of Classified and Security Sensitive Information REPORT 98 May 2004 © Commonwealth of Australia 2004 This work is copyright. You may download, display, print and reproduce this material in whole or part, subject to acknowledgement of the source, for your personal, non- commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968, all other rights are reserved. Requests for further authorisation should be directed to the Commonwealth Copyright Administration, Intellectual Property Branch, Department of Communications, Information Technology and the Arts, GPO Box 2154, Canberra ACT 2601 or by email to [email protected]. ISBN 0-9750600-5-8 Commission Reference: ALRC 98 The Australian Law Reform Commission was established on 1 January 1975 by the Law Reform Commission Act 1973 and reconstituted by the Australian Law Reform Commission Act 1996. The office of the ALRC is at Level 25, 135 King Street, Sydney NSW 2000, Australia. Telephone: within Australia (02) 8238 6333 International +61 2 8238 6333 TTY: (02) 8238 6379 Facsimile: within Australia (02) 8238 6363 International +61 2 8238 6363 E-mail: [email protected] ALRC homepage: www.alrc.gov.au Printed by The SOS Printing Group (Australia) Pty Ltd The Hon Philip Ruddock MP Attorney-General of Australia Suite MF 21 Parliament House Canberra ACT 2600 31 May 2004 Dear Attorney-General, The Protection of Classified and Security Sensitive Information On 2 April 2003, the Commission received a reference from the then Attorney- General, the Hon Daryl Williams AM QC MP, pursuant to the Australian Law Reform Commission Act 1996, to undertake a review of the handling and protection of classified and security sensitive information in legal proceedings. Those terms of reference were amended by your letter of 24 March 2004, to extend the reporting date to 31 May 2004, in order to facilitate further community consultation. On behalf of the Members of the Commission involved in this reference, including Justice Susan Kenny, Justice Susan Kiefel and Justice Mark Weinberg, and in accordance with section 21 of the Australian Law Reform Commission Act 1996, we are pleased to present to you the final report in this reference: Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98, 2004). Yours sincerely Professor David Weisbrot Ian Davis President Commissioner Brian Opeskin Professor Anne Finlay Commissioner Commissioner Contents Terms of Reference 5 Participants 7 Executive Summary 9 List of Recommendations 15 Part A. Defining Classified and Security Sensitive Information 1. The ALRC’s Inquiry 33 Background to the inquiry 33 Advisory Committee 36 Structure of Report 36 National Security Information (Criminal Proceedings) Bill 2004 38 2. Classifying Information 43 What is classified information? 43 What is security sensitive information? 47 National security information 48 Security and intelligence agencies 50 3. Open Government 65 Accountability of the Executive 65 Privacy 67 Freedom of information 69 Protection of whistleblowers 73 Part B. Handling Classified and Security Sensitive Information 4. Commonwealth Protective Security Manual 89 What is the Protective Security Manual? 91 Public access to the PSM 93 Classifying information in accordance with the PSM 96 Reclassifying and declassifying information 102 Monitoring agency compliance with the PSM 117 Enforcing the standards in the PSM 124 5. Prevention and Punishment of Unauthorised Disclosure 143 Prevention 144 Deterrence and Punishment 153 2 Keeping Secrets 6. Security Clearances 175 Introduction 175 How does a security clearance work? 175 Security clearance of lawyers 181 Security clearance of judges and magistrates 201 Security clearance of jurors 204 Court and tribunal staff 208 Part C. Classified and Security Sensitive Information in Court 7. Principles of Open Justice and Fair Trials 213 Introduction 213 The right to a fair hearing 215 The right to a public hearing 215 Procedural protections in criminal proceedings 227 The right to ‘equality of arms’ 235 Open justice and national security information 236 Abuse of process 241 Procedural protections in non-criminal proceedings 243 The right to a public judgment 246 Military courts and tribunals 254 8. Restricting Access to Courts and Tribunals 261 Introduction 261 Pre-trial procedures 262 Presenting evidence in open court 267 Blocking disclosure or admission of evidence 310 9. Closing Courts and Tribunals 335 Closing courts to the public 335 Closing tribunals to the public 347 Consultations and submissions 350 Media issues 362 Appeal mechanisms 366 Prosecution guidelines 369 Legal Services Directions 373 10. Denying a Party Access in Courts and Tribunals 377 Introduction 377 Secret evidence 377 Secret hearings 423 11. Recommendations for Reform—Courts and Tribunals 431 Basic recommendation: a National Security Information Procedures Act 432 Scope of the new Act 438 Pre-trial disclosure 444 Early notification 461 Contents 3 Notification to Attorney-General 461 The court’s powers generally 463 Undertakings and security clearances 466 Public interest immunity 466 Ancillary matters 467 Statements of reasons and transcripts 471 Ministerial statements and certificates 472 Technical assistance 473 Classification is not determinative 474 Closed courts and tribunals 476 Evidence supporting application to be given in open court 479 Appeals 480 Secret evidence 480 Secret hearings 496 A single court? 497 Summary of Recommendations 499 Appendix 1. List of Submissions 511 Appendix 2. Abbreviations and Acronyms 513 Appendix 3. Extracts from Statute 517 Appendix 4. R v Lappas 549 Table of Selected Legislation 559 Table of Selected Cases 565 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 unneces- sary 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;1 • section 85B of the Crimes Act 1914 in relation to in camera proceed- ings;2 • 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 docu- ments; and • whether existing mechanisms adequately protect security sensitive information. 1 Section 23V is set out in Appendix 3. 2 Section 85B is set out in Appendix 3. 6 Keeping Secrets 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 secu- rity 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: a. Assessing the practical implications of any recommendations for measures; and b. 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 2004.3 Dated: 2 April 2003 Daryl Williams Attorney-General 3 By letter dated 24 March 2004, the Attorney-General, the Hon Phillip Ruddock MP, extended this reporting date to 31 May 2004. Participants Australian Law Reform Commission The Division of the ALRC constituted under the Australian Law Reform Commission Act 1996 (Cth) for the purposes of this inquiry comprises the following: Division Professor David Weisbrot Mr Ian Davis (Commissioner in charge) Professor Anne Finlay Mr Brian Opeskin Justice Susan Kenny (part-time Commissioner) Justice Susan Kiefel (part-time Commissioner) Justice Mark Weinberg (part-time Commissioner) Senior Legal Officers Carolyn Adams Isabella Cosenza Legal Officers Kate Connors Jonathan Dobinson Project Assistant Alayne Harland Legal Interns Adam D’Andretti Lauren Jamieson Katherine Jones Elly
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