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Monday, 4 May 1987
Page: 2219

Senator GARETH EVANS —On 23 March, Senator Sir John Carrick asked me a question about legal safeguards possibly existing in relation to the publication of intelligence information. The question bore on the responsibilities of both the Attorney-General and the Minister for Defence. I have put together a long composite answer based on information supplied to me by their two departments. I seek leave to incorporate the answer in Hansard.

Leave granted.

The answer read as follows-

(1) There are a number of legislative provisions in the Commonwealth sphere prohibiting the unauthorised disclosure of confidential official information. Section 70 of the Commonwealth Crimes Act 1914 prohibits unauthorised disclosure of information by Commonwealth officers or former Commonwealth officers where there is or was a duty not to disclose that information. Section 79 of the Crimes Act prohibits, among other things, disclosure by a Commonwealth officer or former Commonwealth officer, of certain matters including information which by reason of its nature or the circumstances under which it was entrusted to him or for any other reason, it is his duty to treat as secret. The definition of ``Commonwealth officer'' in the Crimes Act is wide enough to include officers employed in the Commonwealth's intelligence and security agencies.

So far as officers or former officers of ASIO are concerned, s.18 of the ASIO Act 1979 makes it an offence for a person to communicate, other than in accordance with the section, any information that has come to his knowledge or into his possession by reason of his being, or having been an officer of the Organization, being information that was acquired or prepared by or on behalf of the Organization in connection with its functions or related to the performance by the Organization of its functions.

In addition to these legislative provisions, officers of a number of the intelligence organisations enter into undertakings as to confidentiality. The nature and enforceability of this kind of undertaking is a central feature of the Wright case.

(2) Since the 1950's, successive Australian Governments have concluded a number of arrangements with other governments for the exchange of security-related information. A feature of these arrangements is the understanding that information communicated in confidence will be given appropriate protection and will not be communicated to a third party without the prior consent of the originating agency.

Where an Australian agency supplies confidential information to a foreign intelligence agency, unauthorised disclosure of such information by an officer of the latter agency would be governed by the law of the relevant foreign country.

More specifically, the measures available to all governments to provide for the reciprocal protection of exchanged national security classified information comprise three categories:

(a) instruments of treaty status entered into between the governments, or instruments of less-than-treaty status concluded between departments or agencies of the governments;

(b) security assurances which are limited to a specific (and usually Defence related) project. This procedure is usually applied during a major equipment acquisition project to enable a foreign company to tender for the supply of equipment to the ADF;

(c) a general understanding between relevant senior officials that the information is provided in confidence for a specific use or purpose only.

These available measures are usually applied to the entire range of exchanged national security classified information, and are not limited to the exchange of intelligence information.

The first two categories of available measures contain four fundamental principles. These are that the information received:

(i) shall be afforded a standard of physical and legal protection not less than that applied to it by the originator;

(ii) shall not be used for a purpose other than that for which it is or was supplied;

(iii) shall not be communicated or released to a third party without the prior written consent of the originator; and

(iv) shall be accessed only by those persons who require knowledge of the information to carry out their duties and who possess a security clearance to the appropriate level.

Since the 1950's, successive Australian Governments have concluded a number of treaty status and less-than-treaty status instruments for these purposes with a range of other governments and their relevant departments. The administrative processes to achieve conclusion of these instruments is both lengthy and time-consuming. Reviews of the adequacy of the provisions and implementation of these instruments is conducted on an as-required basis.

(3) It would be premature to contemplate what legislative reforms might be necessary in the light of the Wright case until those proceedings have been concluded. The current position is that the decision at first instance of Powell J. is the subject of an appeal to the N.S.W. Court of Appeal.