The national counter terrorism alert level remains at Medium. This means that a terrorist attack could occur. In light of the recent security incidents in the United Kingdom it is timely to remind NSW government organisations of the need to ensure procedures are in place to protect NSW Government security sensitive information from inappropriate release to third parties. Other unclassified information in electronic or hard copy format may also be considered security sensitive.
The following guide may assist organisations to determine if information not previously classified is now considered security sensitive.
The entire notion of information has changed since then, as has the speed of delivery, the power of search, the contraction of the tyranny of distance and the explosion of education and general knowledge.
These should include a provision making it an offence to withhold information from the public for an improper purpose. Australian Government agencies should ensure that all staff required to make classification decisions are well trained in classification policy and procedure; [12] and. This information may not have been available to the particular officer in his or her formal capacity as a Commonwealth officer because, for example, he or she may not have had an adequate security clearance.
These provisions apply to any information to which the officer may have access by virtue of being, or by reason of being, an officer. This would include information that a person is able to access because of his or her position, despite access being in breach of agency rules. Under clause 38E if a witness in a civil proceeding is asked a question and a party to the proceeding believes that the answer will disclose information that is related to or may effect national security, then the party must advise the court.
In such a case, the court must require the witness to provide it with a written answer to the question, adjourn the proceedings and give the written answer to the Attorney-General. Proceedings will be adjourned until the Attorney-General responds either by issuing a certificate or a making a decision not to issue a certificate. The Bill creates a number of related offences both in terms of failure to comply with the requirement to notify the Attorney-General and in terms of certain post-notification conduct.
Clause 46C provides that if national security is likely to be prejudiced by disclosure in proceedings, it will be an offence for a party to:. The maximum penalty is 2 years imprisonment. In the period after the Attorney-General has been notified under proposed sections 38D or 38E and before the Attorney has issued a certificate or decided not to issue a certificate, it is an offence:. Clause 38F provides that the Attorney-General can issue a civil non-disclosure certificate :. A civil non-disclosure certificate must describe the national security information but need not be issued with any accompanying material.
It may be given to potential disclosers a term defined in subclause 38F 9. If the information is in the form of a document, a civil non-disclosure certificate may be used to prohibit use of the document except in permitted circumstances or to provide a redacted edited version that can be used.
The redacted version may be a copy of the document with text deleted with or without a summary of the information that has been deleted or a statement of facts that the information in the document would, or would be likely, to prove.
If the information is not in documentary form for example, oral testimony , the certificate may prohibit the disclosure of the information, with or without provision of a written summary of the information or a statement of facts that may be disclosed. Another certificate that may be issued by the Attorney-General is a civil witness exclusion certificate.
Under clause 38H , the Attorney-General can issue a witness exclusion certificate:. A civil witness exclusion certificate means that the party must not call the person as a witness. A copy of the certificate may be given to the relevant party or their lawyer and must be given to the court. If the Attorney-General decides not to issue a civil witness exclusion certificate, the Attorney-General must advise the relevant party and the court.
It is an offence to disclose information contrary to a civil non-disclosure certificate or a call a witness contrary to a civil witness exclusion certificate. The maximum penalty is 2 years imprisonment clauses 46D and 46E. None of the following is a legislative instrument for the purposes of the Legislative Instruments Act: non-disclosure certificates, witness exclusion certificates and the written advice that must be provided to potential disclosers and the court [ subclauses 38F 8 and 38H 10 ].
A certificate issued by the Attorney-General is an interim measure banning disclosure. It operates until a court makes its own order either overturning the certificate and allowing the disclosure or accepting the certificate and thus requiring information to be withheld or the witness to be excluded.
As indicated above, while the Attorney-General s certificate is in force, it is an offence to disclose information or call a witness contrary to the requirements of the certificate.
As indicated above, after conducting a closed hearing, a court makes its own order about non-disclosure or witness exclusion.
The requirements for closed hearings are set out in clause 38I. Only the following people can be present at a closed hearing:. However , if they have not been appropriately security cleared, the parties, their lawyers and court officials can be excluded from any part of the proceedings in which the Attorney-General or their lawyer provides details of why information should not be disclosed or witness excluded and the court considers the disclosure is likely to prejudice national security.
If the Attorney-General or their lawyer argues that information should not be disclosed or that a witness should not be called to give evidence, then the other parties to the proceedings and their lawyers must be able to make submissions to the court. However, as Bills Digest No. The record must also be made available to an unrepresented litigant with appropriate security clearance or, if a party is represented, to their lawyer if appropriately security cleared. However , in these cases, the record that is provided may have been varied so that it does not disclose national security information.
The Attorney-General or their lawyer can ask the court to vary the record in this way. The court s decision in response to this request can be appealed and the Attorney-General can ask the court to delay access to the record or varied record to allow the Attorney to make a decision about an appeal.
In the meantime, the court must grant the request that access be delayed. Matters that the court must consider when deciding what order to make are set out in new subclause 38L 7 and in section 3 of the Principal Act.
Under subclause 38L 7 these matters are:. Section 3 of the Principal Act sets out the objects of the legislation. These objects are to prevent the disclosure of information likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice. When a court exercises powers or performs functions under the Act it must have regard to the objects of the legislation [subsection 3 2 of the Principal Act].
Of the matters listed above, a court must give the greatest weight to national security [ subclause 38L 8 ]. In contrast the ALRC report, Keeping Secrets , recommended a scheme which acknowledges the possible prejudice to national security ought to be given great weight, but formally would leave the court with more discretion to ensure that the interests of justice are served in the case before it.
Clause 38M requires that a written statement of reasons for a section 38L order must be given to:. If section 38K applies then a copy of the statement of reasons must first be given to the Attorney-General. The Attorney-General can ask the court to vary the statement if he or she considers that it will disclose information likely to prejudice national security.
As is the case with records of hearings, the Attorney-General can ask a court to delay giving its statement of reasons to allow time for a decision to be made about appealing the decision clause 38N. The court must grant the request for a delay. Clauses 38QS set out who can appeal against various court decisions and orders.
In a civil proceeding, the Secretary of the Attorney-General s Department may notify a party, their lawyer or a person assisting their lawyer that national security information may be at issue in the proceeding. A person who receives such a notice can apply to the Secretary for a security clearance. The Secretary also determines the level of clearance required. During the clearance process the matter must be adjourned on the request of a party or their lawyer who wants to apply for an assessment [ subclauses 39A 1 , 2 and 3 ].
If a party or their legal representative does not apply for a security clearance within 14 days of being so notified or is not given a security clearance, then the Secretary may advise the court. The court may then advise the party or their lawyer of the consequences of not being given an appropriate security clearance and recommend that the party engages another lawyer [ subclause 39A 6 ]. The security clearance provisions represent another point of departure between the Principal Act and the Bill.
Under the Principal Act, a defendant cannot apply for or obtain a security clearance. It should be noted that security clearances are given in accordance with the Australian Government Protective Security Manual. This document is not a classified document but its availability is restricted to government departments, agencies and contractors working to government. Clauses 46A 46G contains offence provisions relating to civil proceedings.
Most of the offence provisions are dealt with above. However, clause 46G is described here. Clause 46G provides that is an offence to disclose information for the purposes of civil proceedings to a party or their lawyer if that disclosure is likely to prejudice national security. There are exceptions to this prohibition when giving evidence in the proceedings, in permitted circumstances , 27 to a security-cleared party or their security-cleared lawyer or with the approval of the Secretary of the Attorney-General s Department.
Clause 46G is a general offence, which does not appear to be triggered by the issuing of notices or certificates. It may inhibit a party who is not security-cleared from discussing their case with a lawyer who is not security-cleared. Item 28 repeals section 47 of the Principal Act and replaces it with a provision requiring an annual report to be tabled in Parliament that:.
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