Chapter 5 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
On 18 September 2012, the 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 (the ‘Agreement’)
was tabled in the Commonwealth Parliament.
The proposed Agreement sets out security procedures and practices for
the exchange and protection of classified information between Australia and
Spain, and for visits to either party that require access to such information
or restricted areas or facilities where classified information is held.
Australia already has a number of similar legally binding agreements
related to the protection of Classified Information.
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 for
the Mutual Protection of Classified Information of Defence Interest. This
Arrangement was signed on 19 January 2006 as an interim measure until the
proposed Agreement enters into force.
Less-than-treaty status arrangements are widely used. They differ from
treaties in that their content is usually confidential and they are not legally
The Agreement was negotiated at the request of Spain because of a Spanish
legal requirement that all agreements of this sort entered into by Spain be
treaty level status agreements.
Australia and Spain have a number of defence interests in common. The
Department of Defence identified the following projects in particular as
examples where classified information would need to be exchanged:
- the $8 billion Air
Warfare Destroyer project;
- the $3 billion
amphibious ships project; and
- the nearly $1.5
billion air-to-air refueller project, now part of Airbus military.
The Agreement is specifically limited to defence information, and will
not cover information exchange relating to criminal or terrorist matters.
Protection of classified information
Classified information is defined in Article 1(2) of the proposed Agreement
…all information and material of Defence interest which
requires protection in the interests of national security and which is subject
to a national security classification of the Originating Party. The information
may be in oral, visual, electronic or documentary form, or in the form of
material including equipment or technology.
Like previous agreements of this sort, the Agreement requires each party
to treat the other party’s classified information in accordance with an
equivalent agreed standard.
Spain and Australia have examined each other’s security policies and
standards, and are each satisfied these obligations can be met by the other.
To ensure this occurs, the following steps must be adhered to when
classified information is being exchanged:
- the originating
country must ensure that the information has been given a security
classification in accordance with the originating country’s classification
- the receiving country
must then assign a security classification that is not lower than the
classification given by the originating country;
- the receiving country
shall accord the transferred information a standard of physical and legal
protection no less stringent than that which it accords its own classified
information of a corresponding classification;
- the transferred
information is not to be used for any purpose other than that for which it was
provided, nor is it to be disclosed to any third party without prior written
consent of the originating country;
- the receiving country
is obliged to take all appropriate legal steps to prevent disclosure of the
information, for example, as a result of a freedom of information request;
The Agreement contains a number of compliance mechanisms to ensure that
the exchanged information is being protected appropriately.
For example, on request, each party must provide the other with
information concerning security standards, practices and procedures for
safeguarding the exchanged information. Each party must inform the other party
in writing of any changes that affect the manner in which exchanged information
Exchanged information will be transferred in accordance with the
national laws, security regulations and procedures of the transmitting country
and through government-to-government channels, unless otherwise mutually agreed.
The Agreement requires each party to ensure that all establishments,
facilities and organisations within its territory protect the exchanged
information in accordance with the Agreement, including carrying out security
inspections where necessary.
Access to the exchanged information will be restricted to citizens of
either party who have been granted a personnel security clearance to an
appropriate level, and who have a need-to-know. The Agreement will also permit
parliamentary representatives to continue to access classified information
provided current information access practices are applied.
If a breach of security is believed to have occurred, the parties are
required to report the breach to the other party as soon as possible. Breaches
will be investigated immediately by the receiving country, and the originating
country will be informed of the findings and any corrective action taken.
Once it is no longer required for its original designated purpose, the exchanged
information must be destroyed or returned to the originating country.
Disputes over the Agreement are to be resolved through consultation and
negotiation. There is no right to access a third party dispute settlement
Reasons for Australia to take the proposed treaty action
As has been already noted, this treaty has been negotiated at Spain’s
request on the basis that Spanish law requires that agreements of this sort be
of treaty level status. Consequently,
ratification of the treaty is important to Australia’s ongoing good defence
relations with Spain. In addition, Australia and Spain share common billion
dollar defence projects, the success of which may be impeded by a failure to
reach an agreement on the exchange of classified information.
The proposed Agreement ensures that Classified Information
which the Government of Australia passes to the Kingdom of Spain will be
afforded the required standard of protection. Likewise the proposed Agreement
will give the Kingdom of Spain confidence that the Government of Australia will
protect its Classified Information.
No changes to domestic laws or policy are required to implement the
proposed Agreement. The proposed Agreement can be implemented in accordance
with the Australian Government Protective Security Policy Framework, which sets
out procedures for the protection of classified information.
The new Protective Security Policy Framework (PSPF) includes a revision
of the Government’s security classification system. The revised system reduces
the number of classifications from six to four: ‘Protected’, ‘Confidential’, ‘Secret’
and ‘Top Secret’.
The terms of the proposed Agreement were negotiated prior to the
announcement of the new PSPF. The proposed Agreement (at Article 4) aligns
with the Department of Defence’s current classification system and this is
necessary until the Department makes the transition to the new classification
system in August 2013.
The National Security Authority of the Kingdom of Spain was kept
informed of the changes during the negotiation of the proposed Agreement. When
given the option of how best to accommodate the anticipated reform, Spain
specifically requested that the proposed Agreement proceed with the existing
classifications and that any necessary changes be made via the treaty amendment
process at a later date.
The proposed Agreement will not result in any change to the existing
roles of the Commonwealth Government or the State and Territory Governments.
Each Party shall bear its own costs incurred in the implementation of
the proposed Agreement. There are no anticipated costs to the Australian
Government in complying with the proposed Agreement.
The Committee believes that the existence of billion dollar defence
contracts between Australia and Spain is sufficient cause to support the
Agreement. The Committee has examined agreements of this sort in the past and
is of the view that they provide a sound basis for the exchange of classified
The Committee supports the 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 and recommends that binding treaty action be taken.