AUSTRALIA’S COURTS and tribunals must change the way they operate when dealing with classified and security sensitive information, according to a report by the Australian Law Reform Commission (ALRC).
Increased concern over international terrorism and Australia’s national security were cited as the reasons for the need for change.
The protection of classified and security information “goes to the heart” of the defence of the nation, ALRC president David Weisbrot said. This included the maintenance of critical international relationships and a continuation of the flow of intelligence information.
The report, Keeping Secrets: The Protection of Classified and Security Information, comprises 572 pages and 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, Weisbrot said.
“Unfortunately, however, we can expect increasing numbers of these types of matters, reflecting global tensions and local concerns.”
“Courts, tribunals and government agencies need clearer and more refined procedures to ensure the proper handling of such highly sensitive material,” he said.
The use of classified information was likely to create the need for administrative decisions to refuse people security clearance, a visa and passports, “so our justice system must be prepared”, Weisbrot said.
Attorney-General Philip Ruddock said a vital component in the protection of our national security was safeguarding classified and security sensitive information.
The National Security Information (Criminal Proceedings) Bill 2004, introduced by the Government last month, was consistent with a number of the ALRC’s recommendations, Ruddock said.
Weisbrot accepted that the Government Bill largely incorporated the framework the ALRC had developed. But, he said there were 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.”
The Commission consulted widely with government, law enforcement and intelligence agencies, the legal profession and other interested parties in developing the report.
This allowed it to devise a 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”, Weisbrot said.
The major challenge for the ALRC in this inquiry went beyond balancing the rights of the individual to a fair trial against the needs for the Government to maintain official secrets, he said. “That oversimplifies the complexity of the legitimate, competing interests.”
“Consideration must also be given to the broader and compelling public interest 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,” he said.
It was recommended that there should be a new National Security Information Procedures Act. This would apply to all Australian courts and tribunals.
“The [Act] should apply to all stages of proceedings in any Australian court or tribunal in which classified or sensitive national security information arises, including military courts and tribunals,” the recommendation states.