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Editors --- "Protecting Classified and Security Sensitive Information" [2006] AdminRw 21; (2006) 57 Admin Review 96


Protecting classified and security sensitive information

On 31 May 2004 the Australian Law Reform Commission presented to the Attorney-General its report Keeping Secrets: the protection of classified and security sensitive information. The report reviews the current procedures for dealing with classified and security sensitive information and how such information is handled in the courts. It also makes a number of recommendations for reform in the policy, procedures and associated law.

The report focuses on a number of areas that are of particular importance to security sensitive information—for example, the Commonwealth Protective Security Manual; the use of security clearances for public servants, lawyers and judges; and the use of security sensitive evidence in courts and tribunals. On the last point, the ALRC proposes the creation of a National Security Information Procedures Act that would set out ‘a procedural framework for the disclosure and admission of classified and security sensitive information in court and tribunal proceedings’.[1]

The proposed regime would operate on the principle that ‘all parties are given a fair hearing or a fair trial, and that any departures from the usual standards of judicial process and procedural fairness are limited to those strictly necessary to protect the national interest’.[2] In relation to administrative law proceedings, the ALRC recommended a range of measures in connection with the use of secret evidence and made the following observation: ‘The use of any secret evidence is highly undesirable and generally should not be allowed in … civil proceedings other than those involving judicial review of administrative decisions withholding evidence or based on evidence withheld from a party’.[3]

In situations when it is necessary (and required by statute) to use secret evidence, the ALRC lists several safeguards that must be met before such action is taken. The report rejects suggestions that the Migration Act 1958 (Cth) should be used as a general precedent for regulating the use of secret information. It notes that the Act ‘does not provide for any alternative methods of disclosure to the applicant of the secret evidence relied on; nor does it contain other safeguards that are a feature of comparable legislation overseas’ and, moreover, the decision of the Minister to withhold information is determinative and not subject to review.[4]

In substance, there are seven safeguards:

• Ministerial certificates should generally not be determinative of the manner in which any evidence may be used.

• In the case of tribunal proceedings, before consenting to any application that evidence be led in secret, the tribunal should consider alternative methods of presenting the evidence—such as summaries, stipulations and redactions—and the decision of the tribunal in respect of alternative methods is reviewable by a court.

• The affected person should always retain the option of being represented by a lawyer, but the court or tribunal may order that specified material not be disclosed to a lawyer unless he or she holds a security clearance at a specified level.

• Any tribunal proceedings involving secret evidence should be heard by a judicial member of the tribunal (or someone in a similar position of authority).

• The affected person should be notified that secret evidence is being used and be allowed to appeal the decision to withhold the evidence.

• The normal rules of evidence should apply when adducing secret evidence, even where a tribunal is normally not bound by those rules, because ‘secret evidence already represents a significant erosion of a party’s rights’.[5]

• A complete record of the proceedings should be prepared to allow for appeal and review.

The full report is available on the ALRC website <http://www.alrc.gov.au>.


[1] Australian Law Reform Commission 2004, Keeping Secrets: the protection of classified and security sensitive information, Report no. 98, ALRC, Sydney, para 11.4.

[2] Ibid para 11.48.

[3] Ibid para 11.262.

[4] Ibid para 11.214.

[5] Ibid para 11.259.


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