Response from the Australian Press Council to the Australian Law Reform Commission on its Discussion Paper 67, Protecting Classified and Security Sensitive Information.

19 March 2004

Executive Summary

The Australian Press Council, while appreciating the Discussion Paper's expansion of the issues considered in Background Paper No. 8, presses the following proposals:

• Any legislation which establishes a criminal offence should place the onus of proof on the prosecution.
   
• Any proposed legislation, or regulations arising from it, should contain narrowed and objective criteria for the classification of material.
   
• Any proposed legislation should contain provisions which impose penalties for classifying information for an improper purpose.
   
• Legal proceedings should be held in public unless there are exceptional circumstances.
   
• The media should have standing to address courts as to whether or not proceedings should be closed to the public.
   
• The government should introduce more complete and comprehensive legislation to protect whistleblowers.

Introduction

The commission's Discussion Paper 67 expands on Background Paper 8 and makes a number of proposals for legislation in order to facilitate the protection of security sensitive information when that information is involved in court or tribunal proceedings. Central to the strategy outlined by the commission is the proposal to introduce an Act, to be known as the National Security Information Procedures Act, which would replace relevant sections of the Evidence Act 1995, the Crimes Act and of the Criminal Code.

The commission's discussion paper states that procedures established by the new legislation should aim to encourage public interest disclosures, ensure that such disclosures are independently investigated and protect people who make such disclosures from reprisals. However, the overriding purpose of the proposed legislation is to ensure that security sensitive information is adequately protected. Clearly, there will be instances where these aims are in conflict with one another.

While many of the measures proposed by the commission are of limited relevance to the media, certain recommendations have the potential adversely to infringe on freedom of communication. However, like the background paper which preceded it, Discussion Paper 67 does not give adequate consideration to the specific problems which affect the media with respect to security sensitive information, its focus being primarily upon the parties involved in court procedures which have the potential to disclose security sensitive information.

In its submission to the commission made in response to its background paper, the Council made a number of suggestions for consideration in any legislation to protect security sensitive information. While the commission's discussion paper gives careful consideration to these suggestions, its recommendations give only limited recognition of their utility.

Classification Scheme

The Council previously submitted that the Government's security classification scheme should be reviewed, narrowed and clarified. The classification scheme is set out in the Commonwealth Protective Security Manual. The commission's discussion paper makes a number of recommendations with respect to the manual, including that the manual should give explicit guidance as to who is authorised to classify material , that those standards set down in the manual which are enforceable should be clearly identified and that agencies which are subject to the manual ensure that the standards are well understood by employees. However, the discussion paper makes no specific recommendation that the standards themselves should be amended, although such amendment may form part of the revision of the manual which is proposed as a precursor to placing the manual 'in the public domain', in line with the commission's recommendation. The Council endorses the proposal that the Commonwealth Protective Security Manual be in the public domain. However, it believes that the classification standards themselves need to be significantly narrowed to provide objective criteria for the appropriate classification of information and that the revised criteria be less all-encompassing in their scope. The Council does not offer a prescriptive proposal for the revised criteria but attaches as Appendix 1 some suggestions which might address these issues.

Review Mechanisms

In its earlier submission the Council proposed that a review mechanism should be established to consider the classification of information and that an independent body be designated to conduct such reviews. In its discussion paper, the commission recommended that the Government adopt a system for the reclassification/declassification of security sensitive material in certain circumstances, including the making of a Freedom of Information (FoI) application. The discussion paper also recommends the establishment of an independent administrative body to review classification decisions "along the lines of the US Interagency Security Classification Appeals Panel". The Council supports these recommendations in general terms. However, the constituent membership of the US Interagency Security Classification Appeals Panel is heavily weighted in favour of the Government. In order to provide a balanced and truly independent body, it would be preferable if at least one member of the review body were a quasi-judicial officer, such as a member of the AAT, whose selection is made by someone other than a government minister.

Classification for improper purposes

In its previous submission the Press Council recommended that legislation should prohibit the classification of security sensitive information for improper purposes, based on US Executive Order 13292. Proposal 4-4 of the discussion paper recommends that the Commonwealth Protective Security Manual should include

... an express statement that information should only be classified when there is a clear and justifiable need to do so... based on the criteria set out in the Protective Security Manual and not on any extraneous reason.

The Council supports this proposal but believes that the recommendation be strengthened according to the intentions of Executive Order 13292. It believes that the legislation should establish significant penalties for the act of classifying material for an improper purpose. Penalties should include both criminal and administrative penalties and should apply to Senior Executive Service officers, contractors and consultants as well as public servants.

In addition, the Council proposes that similar penalties should apply to government ministers who classify material for an improper purpose.

Freedom of Information

In its previous submission the Council made no comment upon the impact of security sensitive information on FoI beyond suggesting that it should be considered in greater depth. In Discussion Paper 67 the commission invites feedback on whether there should be further review of the blanket exemptions from FoI obligations for a number of Commonwealth agencies, including ASIS, ASIO and ONA. The Council believes that such blanket exemptions are inappropriate, unnecessary and inconsistent with the notion of open and accountable government. While it recognises that these agencies deal extensively with security sensitive information which should properly be kept secret, it believes that, in determining whether such information should be disclosed under FoI, reference should be made to the criteria set down in the Commonwealth Protective Security Manual. Even those agencies which deal primarily with security sensitive information hold some information which is not sensitive and which relates to matters of public interest and concern or which has relevance to court actions. In such instances agencies such as ASIO and ASIS should be required to justify their refusal to disclose that information.

The Press Council is of the view that existing general exemptions should not be expanded to other agencies. Additionally, it urges the commission to reconsider recommendations made in its 1995 report to grant FoI exemptions to ASIS, ASIO, ONA and the IGIS.

Whistleblowers

In its previous submission, the Council urged the Government to proceed with legislation to protect whistleblowers. In proposal 3-1 of its discussion paper, the commission recommended that the Australian Government introduce a comprehensive public interest disclosures scheme which should apply to all Australian government agencies, including those which fall outside the scope of the Public Service Act. The Council endorses this recommendation. However, it reiterates its earlier suggestion that specific provision be made for the protection of those whistleblowers who, for various reasons, are forced to make public interest disclosures to the media rather than to a official agency.

Criminal Penalties

In its previous submission the Council suggested that it would be appropriate to review the defences and penalties set down in the Crimes Act and Criminal Code. Proposal 5-4 of Discussion Paper 67 recommends that a comprehensive review be conducted of s79 of the Crimes Act and its relationship to s91.1 of the Criminal Code. In reviewing this legislation the government should ensure that criminal sanctions are both fair and consistent with the ideal of free speech. The Press Council reiterates its long-standing policy that any legislation which makes provision for the imposition of criminal penalties should place the onus of proof on the prosecution. Defendants should not be required to prove their innocence.

As the Council stated previously, any revised legislation should include a public interest defence. In Bennett v President (Human Rights and Equal Opportunity Commission [2003] FCA 1433), the Federal Court found that the principles set down in Lange, i.e. the implied constitutional guarantee of freedom of communication on political matters, protect the rights of public servants to disclose information to the media in certain instances. Consistent with the principles set down in Lange and in Bennett, it should be a defence to the charge of making an unauthorised disclosure of security sensitive information that the disclosure was made for the purpose of informing the public in relation to a matter of significant public interest. Where a disclosure is made for the purpose of exposing corruption or incompetence, or to prevent a fraud or an injustice, that disclosure should be regarded as having been made in the public interest and, therefore, within the scope of the implied constitutional guarantee.

In Camera Hearings

In its earlier submission the Press Council expressed its opposition to the use of in camera proceedings. It reiterates its view that in camera proceedings should only be used in the most exceptional circumstances and that, before deciding to proceed in camera, a court should be required to assess the risk to security posed by disclosure and weigh this against the public interest in hearing the matter in public.

The Council reiterates its previously stated view that, wherever it is proposed to close a court or Royal Commission for the purposes of protecting security sensitive information, the media should be given standing to address the court or commission as to whether it should be closed.

In its previous submission the Council suggested that, in order to facilitate the making of representations as to the closure of the court, the media should be notified of any intention to close the court. The commission rejected this proposal, apparently due to the practical difficulties of such notification, specifically the difficulty of determining who should be notified. The Council recognises the practical difficulties associated with notification, particularly where a situation arises without anticipation in response to the comments made by witnesses in delivering oral evidence. In such situations it may not be practical to notify parties not present in court as to the course of proceedings.

However, in those instances where it is a practical possibility, notices could be posted on the court's own website, in the same manner and location that the daily court lists are posted. The onus would then be on the media and the public to check the website, if they are interested in a particular matter.

Conclusion

The Council expresses its gratitude to the commission for preparing a thorough and balanced investigation of the issues relating to security sensitive information, which recognises the value of a free flow of information. It encourages the commission and the Government to introduce legislation which protects the freedom of communication with regard to government information.

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See also
December 2003 submission to the Australian Law Reform Commission on its Background Paper, Protecting Classified and Security Sensitive Information.

Return to
Submissions list
Freedom of the Press overview

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