National Security Information – Security clearances

Judges and juries
Neither Judicial officers nor jury members need to be security cleared. Judges are not required to hold security clearances by convention because of the ‘separation of powers’ doctrine, and there is no requirement under the NSI Act for jury members to be security cleared.

Court staff, judges’ associates and staff, tip staff and corrections officers
Security clearances are required for others involved in proceedings where the NSI Act has been invoked. People requiring such clearances include judges’ staff, court officials and corrections officers. Given that the court retains a discretion to exclude court personnel who are not security cleared, it is prudent for the court to identify those officers that may need to be present in closed court arrangements (eg judges’ associates, tip staff, court reporters, corrections officers etc) as well as any staff who would be involved in the handling and storage of any classified or NSI, and seek to have them cleared early on in the proceedings in order to prevent any undue delays.

The security clearance process is the same as that undertaken by government officers including DPP officers and counsel acting for the DPP and the Commonwealth. Security clearances have been undertaken for court officers in the Thomas, Lodhi, Ul-Haque, Hassan, Khazaal and Operation Pendennis matters. Officers who obtain a security clearance receive training regarding their obligations as security clearance holders.   

Defence representatives
Under section 39 of the NSI Act, the Secretary of the Attorney-General’s Department may give written notice before or during a federal criminal proceeding to the defendant’s legal representative or a person assisting the defendant’s legal representative that an issue is likely to arise in the proceeding relating to a disclosure of information that is likely to prejudice national security.

If the defendant’s legal representative does not apply for the security clearance within 14 days after the day on which the notice is received, or within such further period as the Secretary allows, the prosecutor may advise the court that the defendant’s legal representative has not sought clearance. The court may then advise the defendant of the consequences of being represented by an uncleared legal representative and may recommend that the defendant engage a legal representative who has been given, or is prepared to seek, a security clearance.Uncleared legal representatives risk the possibility that they will not have access to NSI which is relevant to the proceedings against their client. For example, the NSI Act affords the court discretion to exclude participants from the proceedings under s 29(3) if the court considers that disclosure of information would be likely to prejudice national security. In addition, s 46 provides that it is an offence to disclose NSI to an uncleared person except in limited circumstances, such as where the disclosure has been approved by the Secretary or the disclosure takes place in compliance with conditions approved by the Secretary (see generally subs 46(c)), or under ‘permitted circumstances’.

The defendant may apply to the court for the proceeding to be deferred or adjourned pending receipt of a security clearance by his or her legal representative or to enable another legal representative to be security cleared. In these circumstances, the court must defer or adjourn the proceeding.

Section 39A of the NSI Act establishes a similar regime for civil proceedings.

Section 22 of the NSI Act provides for the prosecutor and defendant to agree to arrangements for federal criminal proceedings about disclosures of information relating to or affecting national security, and for the court to make orders to give effect to such arrangements. When a s 22 order or arrangement is in place in relation to the storage, handling, destruction, access and preparation of information relating to national security, the requirements set out in the NSI Regulations and the NSI Requirements do not apply. However, there will be circumstances in specific cases where the requirements appropriate for security are best expressed by section 22 orders rather than in accordance with the general standard outlined by the NSI Act and the NSI Requirements.

Australian Government employees
The Government requires all Australian Government agencies to ensure that people entrusted with security classified resources: are eligible to have access have had their identity established are suitable to have access, and are willing to comply with the standards that safeguard those resources against misuse.

An agency determines a person’s suitability to access security classified resources through the assessment of a number of factors, including the person’s honesty, trustworthiness, maturity, tolerance and loyalty as well as an appreciation of protective security responsibilities and obligations. Agencies determine suitability through a background assessment of records checks and inquiries.

Once the agency establishes that the person meets the above criteria, it can then give formal permission to access security classified resources (the security clearance). A security clearance can be defined as:

‘An administrative determination by competent authority that an individual is eligible and suitable, from a security stand-point, for access to security classified resources.’ Any doubts about the suitability of a clearance subject to access security classified resources, both national and non-national must be resolved in favour of the national interest. An agency should only grant a security clearance where information gathered during the background assessment indicates that the clearance subject is eligible and suitable to access security classified resources. This determination must be clearly consistent with the national interest, including national security, of Australia.

The security clearance process by its very nature is intrusive and agencies must conduct the process with care and sensitivity. Government policy demands that only those individuals who have a genuine need to access security classified resources should undergo the security clearance process. Therefore, effective personnel security management, of which the security clearance process is a part, involves a thorough evaluation of the requirements of a specific position: to determine what level of security clearance is necessary, and to ensure that the person requiring the access understands the process and agrees to it.

The granting of a security clearance is not the end of the personnel security management strategy. Once issued, the agency must monitor and periodically review the security clearance. Maintenance of the security clearance is as critical as the original granting of the clearance. Reliance on the security clearance process alone will not ensure that an agency has a good protective security environment. There is no substitute for security awareness and sound security management standards.

People needing access to security classified information to do their job must have the level of security clearance equivalent to the highest level of classified information to which they have access. The clearance provides the agency and the Government with some confidence that the person is suitable and understands the extra responsibilities involved in handling security classified material.

Procedure for issuing a security clearance
The security clearance process comprises a series of assessments and background checks to ensure individuals are eligible and suitable to access NSI. Individuals complete an information package that is composed of a series of questionnaires (including a request for information about financial issues for clearances at the national security Secret level and above). This information is used as the basis for conducting the background checks and inquiries. From these, an assessment of the individual’s suitability to access security classified material and other valuable resources is made. The level of clearance required is decided by relevant Australian Government agencies and may vary depending on the nature of the information involved in the particular case. The security clearance can be conducted by a number of security vetting service providers. Clearances in current matters have been conducted by the Australian Security Vetting Service, in the Attorney-General’s Department.

The Protective Security Coordination Centre (PSCC) in the Attorney-General’s Department (AGD) coordinates the issue of security clearances for those involved in proceedings where the NSI Act has been invoked. The Australian Government has funded these security clearances which are managed by the Australian Security Vetting Service (ASVS), PSCC. Policy and Services Branch (PSB), PSCC, also arranges security awareness training for persons cleared for NSI Act proceedings. Costs for this type of training have been absorbed by the AGD to date.

Nominees complete a questionnaire provided by the ASVS and this information, together with information from background checks, is assessed. The ASVS then makes a recommendation about whether the applicant is suitable to be granted a clearance. The clearance nominee is informed of the decision in writing.

The time taken to assess an application for a security clearance will vary depending on the level of clearance being sought, the level of accuracy and completion of the information provided and the nominee’s availability to provide any incomplete information.

All information collected by ASVS officers during the security clearance process is protected in accordance with the Privacy Act 1988.

The Australian Government Protective Security Manual is the principal means for communicating protective security policies, procedures and minimum security requirements related to the protection of the Government’s official resources. It is designed to assist agencies with their protective security arrangements, and includes principles, standards and procedures for the protection of government personnel, infrastructure and information. Access to the PSM is restricted to Government agencies.

The NSI Regulations incorporate the Requirements for the Protection of National Security Information in Federal Criminal Proceedings and Civil Proceedings (the NSI Requirements), which further specify how and where national security information must be accessed, stored and otherwise handled and address a range of physical security matters.