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Joint Standing Committee on Treaties - 29/10/2012 - Treaties tabled on 21 August and 11 and 18 September 2012
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BIRRER, Mr Christopher, Assistant Secretary, Major Powers and Global Interests, International Policy Division, Department of Defence

BURKE, Mr Patrick, Acting Assistant Secretary, Security Policy and Plans, Defence Security Authority, Department of Defence

COLLEY, Mr Francis, Chief Security Officer, Defence Security Authority, Department of Defence

HEMPENSTALL, Mr Kerry, Senior Legal Officer, Directorate of International Government Agreements and Arrangements, Defence Legal Division, Department of Defence

[10:26]

Agreement between the Government of Australia and the Kingdom of Spain for the Mutual Protection of Classified Information of Defence Interest done at Madrid on 17 November 2011

CHAIR: The committee will take evidence on the proposed Agreement between the Government of Australia and the Kingdom of Spain for the Mutual Protection of Classified Information of Defence Interest done at Madrid on 17 November 2011. Welcome, and thank you for coming along earlier to assist the committee with the hearings this morning. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and warrants the same respect as proceedings of the House or the Senate. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of the parliament. If you nominate to take any questions on notice, could you please ensure that your written response to questions reaches the committee secretariat within seven working days of your receipt of the transcript of today's proceedings. I invite you to make any introductory remarks that you wish to make before we proceed to questions.

Mr Colley : Thank you, I will make a short opening statement. Thank you for the opportunity to appear before you today with regard to the Agreement between the Government of Australia and the Kingdom of Spain for the Mutual Protection of Classified Information of Defence Interest. The proposed agreement is a joint initiative between Australia and Spain which will serve to strengthen classified information sharing between our two countries. The proposed agreement will support priority areas of Defence engagement with Spain, including, for example, the development of the Royal Australian Navy's landing helicopter dock ships and the air warfare destroyers.

The proposed agreement is not controversial and is similar to a number of other legally binding agreements that Australia has entered into. Recent examples include agreements with the Republic of Korea, and the European Union. The Department of Defence led the negotiations, in consultation with the Department of Foreign Affairs and Trade and the Attorney-General's Department. Upon entering into force, the proposed agreement will replace a less than treaty status arrangement, between the National Security Authority of the Kingdom of Spain and the Defence Security Authority of the Department of Defence of Australia, which currently governs exchanges of classified information between our respective defence organisations. The arrangement was signed in 2006 as an interim measure until this proposed agreement enters into force. The proposed agreement will satisfy Spain's requirement for such instruments to be binding under international law.

The proposed agreement sets out the terms for exchange and for the protection of classified information between Australia and Spain. Classified information that Australia passes to Spain will be afforded the same protection as information of the corresponding security classification in Spain. The information will not be used for purposes other than that for which it was provided and access to Australian classified information will be limited to Spanish nationals with appropriate security clearances and a clear need to know. The underlying obligation placed on Australia is to protect Spain's classified information in the same manner that we protect our own information of corresponding security classification.

Having examined each other's security policy and standards, both Australia and Spain are satisfied that this obligation can be met. The Department of Defence is currently transitioning to the new Australian government security classification system. Under the new system, Defence will replace the existing 'Restricted' classification with the 'For Official Use Only' marking in August of 2013. Spain was notified of this change prior to the signing of the proposed agreement and requested that the signing go ahead. The level of protection that will be in place for the 'For Official Use Only' marking will be the same as that currently in place for 'Restricted' and therefore will be sufficient for the corresponding Spanish marking of 'Difusion Limitada'. Discussions with our Spanish counterparts are ongoing to ensure that arrangements are in place for the transition to the new classification marking system.

The proposed agreement will not in any way prejudice the existing procedures for access to classified information by elected representatives, nor does it require any changes to domestic laws or policies. Should the proposed agreement be terminated, the responsibilities and obligations of both countries in relation to the protection, disclosure and use of classified information already exchanged will continue to apply. The authorities responsible for the implementation of the proposed agreement are the Defence Security Authority in the Department of Defence, for Australia, and the Director of the National Intelligence Centre in Spain's National Security Office. Chair and members, that concludes my opening statement and I would welcome any questions that you might have on the agreement.

CHAIR: Thank you. You mentioned in your opening remarks that this replaces the arrangement between the national security authority of the Kingdom of Spain and the Defence Security Authority of the Department of Defence of Australia for the mutual protection of classified information with defence interest. How similar is the agreement that is proposed now to the less than treaty document that it is replacing?

Mr Colley : The arrangement and the agreement are very similar in terms of the way the two countries protect each other's classified information. The fundamental difference is that the agreement that we are proposing now is a legally binding agreement and this was entered into at Spain's request as part of their requirements.

CHAIR: The national interest analysis says that the proposed agreement is similar to other legally binding agreements that we have entered into relating to the protection of classified information with other countries. Have there been any problems or issues with these other similar arrangements that we have entered into?

Mr Colley : No. We have agreements with 12 other countries that are similar treaty status agreements and I am not aware of any issues that have been raised as to any of those agreements with regard to problems in the protection of classified information.

CHAIR: Arethe 12 countries in the national interest analysis as set out there? I am not sure.

Mr Colley : I am not sure but I can read them into the record if you would like.

CHAIR: Okay, fire away.

Mr Colley : The 12 similar treaty status agreements exist with the United States, New Zealand, South Africa, Denmark, Singapore, Canada, Germany, Sweden, France, the North Atlantic Treaty Organization, the Republic of Korea and the European Union.

CHAIR: Another thing I want to ask you about concerning the national interest analysis is that information relating to terrorism or intelligence is specifically excluded from the proposed agreement. So do we have either an agreement in place or an agreement being negotiated with Spain concerning the exchange of information on terrorism or intelligence?

Mr Colley : There is no intention at this stage to enter into any formal agreement with Spain for the exchange of information on those topics. We do have arrangements, though, with many nations to exchange information on a specific case by case basis on those sorts of topics. The sensitivity of those topics generally makes it more appropriate that we consider it on a case by case basis rather than having a standing agreement.

CHAIR: And, finally, article 7 requires:

Transferred Classified Information shall not be used for any purpose other than that for which it was provided or be disclosed to any Third Party, without prior written consent of the Originating Party …

Given that Spain is involved in some pan-European defence projects, such as the Eurofighter Typhoon, would we expect requests for third-party disclosure and, if so, who might those third parties be?

Mr Colley : I do not think I would characterise it as 'we would expect any request for third-party disclosure'. But mechanisms are in place that would allow us to consider such a request, again, on a case by case basis should it come up. The projects that we have in place are largely independent of the Eurofighter, as an example that you gave us. I think the arrangement covers the requirement for Spain to engage with us before sharing with a third country and, similarly, quite suitably, for us to engage before sharing with a third country. We would consider that on a case by case basis.

CHAIR: Right. So we would want to be confident about the third-party security protocols and procedures and so on?

Mr Colley : Absolutely.

CHAIR: Yes.

Mr Colley : That would be part of the negotiation.

Mrs PRENTICE: Are there any serious penalties for breach of the agreement? Also, are the penalties similar to the ones we have in agreements with the other countries?

Mr Colley : The agreement that we have in the first instance is that if there were any breach then we would conduct an investigation into that breach within the jurisdiction of each country. Each country would be responsible to report to the other the outcomes of that investigation and any action that was taken. At this stage, it would be difficult, without looking at the particular breach, to determine whether or not that breach would include, for example, any punitive legal measures. But, again, that would be considered on a case by case basis.

Mrs PRENTICE: Does it include a third party event—such as a Wikileaks , Julian Assange event? Or is it just if either of the countries breach the protocol?

Mr Colley : The only breach of information that we would be able to cover would be breach within a national jurisdiction. An internet breach over which no particular country had a jurisdiction would be very difficult for anyone to pursue. However, we would look at the circumstances under which that leak occurred and that could be investigated and action could perhaps be taken in that space.

Mrs PRENTICE: Following on from that, are we seeing any standards for computer security protocols?

Mr Colley : As part of our mutual inspection of each other's security regime, we looked at all aspects of protective security. That includes information and communications technology security, information security, physical security and personnel security. We have looked at all of those in Spain and, equally, Spain has looked at those here in Australia. We are satisfied with the level of protection provided.

Mrs PRENTICE: And are they at a similar level?

Mr Colley : They are very similar.

Mrs PRENTICE: Did you also consult the National Archives about this? Because they of course have a very keen interest in information and, whilst they do not want to release it straightaway, they do want to make sure that it is recorded properly.

Mr Colley : I would have to check as to whether or not we specifically engaged with the National Archives, but any information that comes into Defence and is stored by Defence is then managed in accordance with National Archives requirements. That would include Spanish information that was provided. The rider that is in there is that any declassification of information, as it says within the agreement, any requirement from one country to declassify the information provided by another would have to be checked with that other country first.

Mrs PRENTICE: Thanks.

CHAIR: Thank you for attending to give evidence today. If the committee has any further questions, the committee secretariat may seek further comment from you at a later date.

Resolved (on motion by Mrs Prentice):

That this committee authorises publication of the transcript of the evidence given before it at public hearing this day.

Committee adjourned at 10:40