Chapter 4 Agreement between the Government of Australia and the Government
of Japan on the Security of Information (Tokyo, 17 May 2012)
Introduction
4.1
On 30 October 2012, the Agreement between the Government of Australia
and the Government of Japan on the Security of Information (Tokyo, 17 May 2012)
was tabled in the Commonwealth Parliament.
Background
4.2
Australia’s security relationship with Japan has grown significantly
during the past decade. The Lowy Institute observed that:
In the last decade, Australia has quietly and quickly become
a close security partner to Japan, second only to the United States. For
Australia, no security relationship outside the foundational alliance with the
United States has deepened more in this same period. Despite changes of government
and political transformations in Australia and Japan towards the end of the
decade, the bilateral security relationship has quietly prospered and looks set
to continue into the foreseeable future. [1]
4.3
Japan is, according to the Department of Foreign Affairs and Trade
(DFAT), one of Australia’s closest and most trusted security partners. The
growing security and defence relationship with Japan reflects the confidence
that both countries have in working with one another. This includes the
establishment of a ‘two-plus-two’ Foreign and Defence Ministers consultation
process – Australia is the only country apart from the United States to have
such a process with Japan. It also includes cooperation in Iraq and on
peacekeeping operations in East Timor and Southern Sudan along with a growing
number of bilateral and trilateral (with the United States) defence exercises.[2]
The fourth two-plus-two talks were held in September this year in Sydney, and
at that talk ministers agreed to enhance security and defence cooperation,
including strengthening information-sharing cooperation.[3]
4.4
The Department also noted the broader Australia-Japan relationship:
The Australia-Japan security relationship has matured
particularly over the past five years. In 2007 the then Prime Ministers signed
a Joint Declaration on security cooperation. It provided a foundation for
wide-ranging cooperation and included a specific reference to exchanges of
strategic assessments and related information. Since then we have built security
and strategic cooperation, and a key part of this has been putting in place the
legal framework required to be able to cooperate with each other. In 2008 the
Department of Defence signed a memorandum of understanding with Japan. In 2010
Australia and Japan agreed the treaty-level acquisition and cross-servicing
agreement, which is essentially a defence logistics agreement. It is expected
to come into force later this year or early 2013, and one of the key
applications of that will make it easier to cooperate in such areas as disaster
relief and peacekeeping.[4]
Overview and national interest summary
4.5
The Agreement’s purpose is to strengthen the legal framework for the
exchange of classified information between the Governments of Australia and Japan,
ensuring the mutual protection of exchanged classified information. The
Agreement will cover all Australian government agencies and five key Japanese
agencies.[5] It will be up to
individual agencies to determine what information to share, though there are no
obligations on either party to share information.[6]
- Counter-terrorism and
intelligence are areas of possible cooperation under the proposed Agreement.
Once the proposed Agreement comes into force, agencies responsible for
intelligence and counter-terrorism could enter into a discussion with Japan
about the sharing of such information.[7]
4.6
The Agreement’s framework will facilitate cooperation on political and
security related issues of relevance to both countries. The Agreement provides
for access to, and protection of, transmitted classified material as well as
procedures for facilitating visits by information security experts to ensure
exchanged information is being adequately protected.[8]
4.7
At this stage, this is a bilateral Agreement and facilitates the sharing
of information between Australia and Japan. There are, however, provisions in
the Agreement that do allow sharing with third parties. Given the close
security relationship both Australia and Japan share with the United States, the
Agreement has the potential to help facilitate the tri-partite relationship.[9]
Reasons for Australia to take the proposed treaty action
4.8
The following summary of the proposed treaty action and its claimed
benefits is taken from the National Interest Analysis (NIA).
4.9
Developing closer security cooperation with Japan is a strategic
priority for the Government. As that cooperation continues to develop, the
need for greater information sharing with Japan will increase. The proposed
Agreement affirms:
- both countries’
commitment to the promotion of bilateral security cooperation through the
implementation of the Joint Declaration on Security Cooperation, signed
at Tokyo on 13 March 2007;
- their mutual interest
in the protection of classified information; and
- their wish to ensure
the reciprocal protection of classified information exchanged between the
Parties.[10]
Obligations
4.10
Australia has 12 treaties relating to mutual protection of classified
information in force, including with the United States, France, New Zealand and
the EU, and there have been no problems or issues with regard to these
agreements in the past.[11] This Agreement does not
oblige the Parties to exchange classified information, but provides a framework
for protecting any classified information they choose to exchange. Classified
information that the Australian Government passes to Japan will be afforded a
degree of protection equivalent in effect to that afforded to it in Australia
(and vice versa).[12]
4.11
Article 1 provides relevant definitions under the proposed Agreement,
including a definition of ‘Transmitted Classified Information’ (TCI) which
means Classified Information[13] which is transmitted
directly or indirectly between the Parties. [14]
4.12
While the proposed Agreement covers the possible electronic transmission
of classified material, Australia and Japan currently have no electronic
connectivity of classified systems with which to transmit such information. If
connectivity was ever established, then the proposed Agreement would need to be
updated to reflect such a development and specifically cover the issue of the
destruction of electronically transmitted classified material. The present
understanding is that classified information will be transmitted in hard copy
only.[15]
4.13
The underlying obligation, described in Article 2, is to protect TCI
according to the Agreement’s terms and subject to applicable national laws and
regulations.[16]
4.14
The Attorney-General’s Department is designated under Article 3 as
Australia’s National Security Authority responsible for coordination and liaison
with regard to the implementation and interpretation of the proposed Agreement. [17]
4.15
Article 4 lists the security classifications which the Parties will use
to mark TCI, and obliges the receiving Party to mark TCI at the equivalent
level. [18]
4.16
Under Article 5 of the proposed Agreement, the Parties will:
4.17
Article 6 provides that the Parties will prevent unauthorised access to
TCI and limit access to those individuals who require access for the
performance of their official duties and hold a current Personnel Security
Clearance to the necessary level. [21]
4.18
Article 7 provides that the Receiving Party may release TCI to a
contractor, if mutually determined in writing, and take appropriate measures to
ensure the contractor’s facilities have the capability to protect the TCI,
including carrying out periodic security inspections.[22]
4.19
Article 8 provides that the Parties will ensure the security of all
facilities where TCI is handled.[23]
4.20
Article 9 provides that the Parties will ensure that TCI is stored in a
manner that prevents unauthorised access in accordance with Article 6. This
includes electronic TCI.[24]
4.21
Articles 10 and 11 provide that information must be transmitted between
the Parties through Government-to-Government channels. While in transit, the
Providing Party remains responsible for the security of Classified Information
until it is received by the Receiving Party.[25]
4.22
Article 12 provides that the Parties will notify each other if there are
changes to relevant security policies that would adversely affect the
protection of TCI and will consult on possible amendments to the Agreement or
to the Procedural Arrangement.[26]
4.23
Articles 13 and 14 cover visit procedures, and visits by security
personnel. Security personnel of one Party may visit the other Party to
discuss security procedures to determine whether TCI is being adequately
protected.[27]
4.24
Articles 15 and 16 require the Parties to destroy TCI by means which
prevent its reconstruction, and Parties to notify each other immediately of any
loss or compromise of TCI and take measures to prevent recurrence.[28]
Implementation
4.25
Article 17(1) provides that the Parties shall make signed a Procedural
Arrangement, subordinate to the Agreement, which specifies supplementary provisions
for implementation. This Arrangement does not create legally binding rights or
obligations. Article 17(2) allows the Parties to separately negotiate
supplementary implementing arrangements to cover particular departmental or
agency requirements.[29]
4.26
No change to domestic law is required to implement the Agreement – it
will be implemented by laws and policies already in place relating to
protective security. The Australian Government Protective Security Policy
Framework (PSPF) requires agencies to adhere to the provisions of any
international security of information agreements. The Agreement will not
require any change to the existing roles of the Commonwealth Government or the
State and Territory Governments.[30]
Implementation under the new Protective Security Policy Framework (PSPF)
4.27
The PSPF[31]reforms were approved as
the negotiation of the Agreement with Japan drew to a close. At the time, the
proposed reforms were discussed in general terms with Japan during the
negotiations, and the Parties agreed to proceed with the existing treaty text.
It is Australia’s view that these changes will not affect the Parties’ ability
to fulfil their obligations under the proposed Agreement.[32]
4.28
The proposed Agreement provides that Japanese information marked ‘Gokuhi
極 秘/Bouei
Himitsu 防 衛 秘 密’
will be protected by Australia at the ‘Secret/Highly Protected’ level.
Notwithstanding the removal of the ‘HIGHLY PROTECTED’ classification under the
PSPF, Australia will be able to meet its obligations by ensuring that all Japanese
material marked ‘Gokuhi 極 秘/Bouei
Himitsu 防 衛 秘 密’
will be protected at the ‘Secret’ level in Australia. [33]
4.29
Given that the Agreement refers to most new classifications as well as
those to be phased out, it will facilitate the sharing of past and future
classified material. Implementation of new classification levels in Australia
will be staggered with all agencies except the Department of Defence
implementing by 31 July 2013 – Defence has been given an additional 12 months.
Article 4 enables Australia to meet its obligations both during and beyond this
transition period.[34]
Inspections
4.30
As discussed above, Articles 7, 13 and 14 cover inspections and other
measures to ensure that classified material is being handled appropriately.
The Attorney-General’s Department provided further detail on how inspections
would be carried out by both countries:
The issue of inspections is on a case-by-case basis. If it
is government-to-government, then typically it would be someone from my
area—protective security policy—who would go along with particular Australian
government agencies, such as the Department of Defence, and they would jointly
inspect the government facility if that was appropriate. Likewise, in respect
of a private sector company, it would typically be the person from the agency
sharing information with the other government agency to which the other
government agency had the contract for procurement or whatever the contract
was. It would typically be someone from the Australian government specific department,
someone from the foreign government and possibly someone from my
area—protective security policy—who would go along to look at the protective
security arrangements for the actual contractor. It is a relatively common
type of process, but we do make sure that to ensure the inspection hits the
mark and is fit for purpose that we do not take a cookie cutter approach. We
tailor each one…[35]
Costs
4.31
There are no anticipated costs to the Australian Government.[36]
Conclusion
4.32
The Committee is encouraged that Australia has 12 treaties relating to
mutual protection of classified information in force, including with the United
States, France, New Zealand and the EU, and there have been no problems or
issues with regard to these agreements in the past. The Committee also notes
that in the past there have not been any serious security breaches committed by
Japan with regard to any information supplied by Australia.[37]
4.33
The growing security relationship between Australia and Japan is of
importance to Australia. Moreover, this Agreement has the potential to
strengthen the tri-partite relationship between Australia, Japan and the United
States with regard to information sharing.
4.34
Given this, the Committee is positive about the growing Australia-Japan
security relationship, and about this information sharing agreement in
particular. The Committee supports the Agreement and recommends that binding
treaty action be taken.
Recommendation 4 |
|
The Committee supports the Agreement between the
Government of Australia and the Government of Japan on the Security of
Information (Tokyo, 17 May 2012) and recommends that binding treaty
action be taken. |