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68-580: An Official Secrets Act ( OSA ) is legislation that provides for the protection of state secrets and official information, mainly related to national security . However, in its unrevised form (based on the UK Official Secrets Act 1911 ), it can include all information held by government bodies. OSAs are currently in-force in over 40 countries (mostly former British colonies ) including Bangladesh , Kenya , Pakistan , Hong Kong , India , Ireland , Myanmar , Uganda , Malaysia , Singapore and

136-544: A separation of powers being the most likely to utilize judicial review. Nevertheless, many countries whose legal systems are based on the idea of legislative supremacy have gradually adopted or expanded the scope of judicial review, including countries from both the civil law and common law traditions. Another reason why judicial review should be understood in the context of both the development of two distinct legal systems ( civil law and common law ) and two theories of democracy (legislative supremacy and separation of powers)

204-559: A threat model that is broadly similar to that faced by a large private company. The Official Sensitive classification replaced the Restricted classification in April 2014 in the UK; Official indicates the previously used Unclassified marking. Unclassified is technically not a classification level. Though this is a feature of some classification schemes, used for government documents that do not merit

272-543: A British colony could not enact laws which altered provisions of British laws which applied directly to the colony. Since the constitutions of Canada and Australia were enacted by the British Parliament, laws passed by governments in Australia and Canada had to be consistent with those constitutional provisions. More recently, the principle of judicial review flows from supremacy clauses in their constitutions. In Australia,

340-401: A change from the previous rule, under which documents could have their classification time length renewed indefinitely, effectively shuttering state secrets from the public. The 2011 law applies retroactively to existing documents. The government of Canada employs two main types of sensitive information designation: Classified and Protected. The access and protection of both types of information

408-522: A check on the powers of the other branches of government, thus creating a regulative balance among all branches of government. The key to this idea is checks and balances . In the United States, judicial review is considered a key check on the powers of the other two branches of government by the judiciary. Differences in organizing democratic societies led to different views regarding judicial review, with societies based on common law and those stressing

476-504: A classification in public sectors, such as commercial industries. Such a level is also known as " Private Information". Official (equivalent to US DOD classification Controlled Unclassified Information or CUI) material forms the generality of government business, public service delivery and commercial activity. This includes a diverse range of information, of varying sensitivities, and with differing consequences resulting from compromise or loss. Official information must be secured against

544-636: A document as an official secret is not subject to judicial review , and a violation of the act is punishable with between one and seven years' imprisonment. The act has been controversial for its use to silence dissent and stifling anti-corruption activities. In New Zealand , the Official Secrets Act 1951 was repealed by the Official Information Act 1982 . In Singapore , the Official Secrets Act (Cap. 213, 2012 Rev. Ed.) prohibits

612-402: A government agency or group shares information between an agency or group of other country's government they will generally employ a special classification scheme that both parties have previously agreed to honour. For example, the marking Atomal, is applied to U.S. Restricted Data or Formerly Restricted Data and United Kingdom Atomic information that has been released to NATO. Atomal information

680-555: A leading jurist of the time. This system was also adopted the same time by Austria and became known as the Austrian System , also under the primary authorship of Hans Kelsen, being emulated by a number of other countries. In these systems, other courts are not competent to question the constitutionality of primary legislation; they often may, however, initiate the process of review by the Constitutional Court. Russia adopts

748-570: A mixed model since (as in the US) courts at all levels, both federal and state, are empowered to review primary legislation and declare its constitutionality; as in the Czech Republic, there is a constitutional court in charge of reviewing the constitutionality of primary legislation. The difference is that in the first case, the decision about the law's adequacy to the Russian Constitution only binds

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816-494: A particular classification or which have been declassified. This is because the information is low-impact, and therefore does not require any special protection, such as vetting of personnel. A plethora of pseudo-classifications exist under this category. Clearance is a general classification, that comprises a variety of rules controlling the level of permission required to view some classified information, and how it must be stored, transmitted, and destroyed. Additionally, access

884-632: A review of the validity of primary legislation. In the United Kingdom, Acts of Parliament cannot be set aside under the doctrine of parliamentary sovereignty , whereas Orders in Council , another type of primary legislation not passed by Parliament, can (see Council of Civil Service Unions v Minister for the Civil Service (1985) and Miller / Cherry (2019)). Another example is the Netherlands , where

952-400: A routine level of protection and is treated as OFFICIAL. Information that does not form part of official duty is treated as UNOFFICIAL. OFFICIAL and UNOFFICIAL are not security classifications and are not mandatory markings. Caveats are a warning that the information has special protections in addition to those indicated by the security classification of PROTECTED or higher (or in the case of

1020-417: A system of administrative courts which are charged with resolving disputes between members of the public and the administration, regardless these courts are part of administration (France) or judiciary (Germany). In other countries (including the United States and United Kingdom), judicial review is carried out by regular civil courts although it may be delegated to specialized panels within these courts (such as

1088-533: Is an acronym for "Control of Secret Material in an International Command". Most countries employ some sort of classification system for certain government information. For example, in Canada , information that the U.S. would classify SBU (Sensitive but Unclassified) is called "protected" and further subcategorised into levels A, B, and C. On 19 July 2011, the National Security (NS) classification marking scheme and

1156-479: Is governed by the Security of Information Act , effective 24 December 2001, replacing the Official Secrets Act 1981 . To access the information, a person must have the appropriate security clearance and the need to know. In addition, the caveat "Canadian Eyes Only" is used to restrict access to Classified or Protected information only to Canadian citizens with the appropriate security clearance and need to know. SOI

1224-476: Is marked COSMIC Top Secret Atomal (CTSA), NATO Secret Atomal (NSAT), or NATO Confidential Atomal (NCA). BALK and BOHEMIA are also used. For example, sensitive information shared amongst NATO allies has four levels of security classification; from most to least classified: A special case exists with regard to NATO Unclassified (NU) information. Documents with this marking are NATO property ( copyright ) and must not be made public without NATO permission. COSMIC

1292-536: Is not a classification of data per se . It is defined under the Security of Information Act , and unauthorised release of such information constitutes a higher breach of trust, with a penalty of up to life imprisonment if the information is shared with a foreign entity or terrorist group. SOIs include: Classified information can be designated Top Secret , Secret or Confidential . These classifications are only used on matters of national interest. Protected information

1360-512: Is not classified. It pertains to any sensitive information that does not relate to national security and cannot be disclosed under the access and privacy legislation because of the potential injury to particular public or private interests. Federal Cabinet ( King's Privy Council for Canada ) papers are either protected (e.g., overhead slides prepared to make presentations to Cabinet) or classified (e.g., draft legislation, certain memos). Judicial review Judicial review can be understood in

1428-534: Is not technically part of the federal judicial branch). It is quite common that before a request for judicial review of an administrative act is filed with a court, certain preliminary conditions (such as a complaint to the authority itself) must be fulfilled. In most countries, the courts apply special procedures in administrative cases. There are three broad approaches to judicial review of the constitutionality of primary legislation —that is, laws passed directly by an elected legislature. Some countries do not permit

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1496-424: Is required to view or handle classified material. The clearance process requires a satisfactory background investigation. Documents and other information must be properly marked "by the author" with one of several (hierarchical) levels of sensitivity—e.g. restricted, confidential, secret, and top secret. The choice of level is based on an impact assessment; governments have their own criteria, including how to determine

1564-421: Is restricted on a " need to know " basis. Simply possessing a clearance does not automatically authorize the individual to view all material classified at that level or below that level. The individual must present a legitimate "need to know" in addition to the proper level of clearance. In addition to the general risk-based classification levels, additional compartmented constraints on access exist, such as ( in

1632-475: Is that some countries with common-law systems do not have judicial review of primary legislation. Though a common-law system is present in the United Kingdom, the country still has a strong attachment to the idea of legislative supremacy; consequently, judges in the United Kingdom do not have the power to strike down primary legislation. However, when the United Kingdom became a member of the European Union there

1700-442: Is thus an "official secrets act" limited to those subjects. Classified information Classified information is material that a government body deems to be sensitive information that must be protected. Access is restricted by law or regulation to particular groups of people with the necessary security clearance with a need to know . Mishandling of the material can incur criminal penalties. A formal security clearance

1768-726: The Security of Information Act , created in the wake of September 11, 2001 attacks to replace the vaguely-worded Official Secrets Act. Twenty-two prosecutions occurred under the Official Secrets Act in Canada, over half of which were in relation to the Gouzenko Affair . In 1989, Stephen Joseph Ratkai was charged and convicted under the Act, of espionage in relation to the SOSUS network site at Naval Station Argentia in Newfoundland . Hong Kong has

1836-471: The Access to Information Act : ultrassecreto (top secret), secreto (secret) and reservado (restricted). A top secret ( ultrassecreto ) government-issued document may be classified for a period of 25 years, which may be extended up to another 25 years. Thus, no document remains classified for more than 50 years. This is mandated by the 2011 Information Access Law ( Lei de Acesso à Informação ),

1904-532: The Attorney General of Ireland , additionally proceedings may occur in camera but the verdict and any sentence must occur in public. Jersey has the Official Secrets (Jersey) Law 1952 . Malaysia has the Official Secrets Act 1972 , prohibiting the collection, possession or distribution of information marked as an official secret – an action which can be made by any public officer. The certification of

1972-630: The Criminal Code in 1892. The Official Secrets Act (Canada) 1939 replaced the Criminal Code provisions and utilised the provisions of the British Official Secrets Acts 1911 and 1920. Amendments were made in 1950, 1967, 1970 and 1973. The Official Secrets Act (Canada) 1981 was the final version of that law adopted by the House of Commons. In 2001, the Act was repealed and replaced by

2040-512: The Official Secrets Act 1889 , 1911 , 1920 , 1939 and 1989 . Individuals working with sensitive information are often required to sign a statement affirming their agreement to adhere to the restrictions of the OSA, colloquially known as "signing the Official Secrets Act". However, signing this statement does not alter the legal obligations, as the Act is a law , not a contract , and its provisions apply irrespective of whether an individual has signed

2108-545: The Official Secrets Ordinance 1997 (Cap. 521), in which it is largely based on the British Official Secrets Acts 1911 to 1989 . Ireland has the Official Secrets Act 1963 , that repealed the previous British legislation of 1911 and 1920. The Official Secrets Act, as amended, applies to all civil servants and potentially anyone within the state. A suit may only be instigated at the approval of

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2176-570: The United Kingdom , and have previously existed in Canada and New Zealand . There were earlier English and British precedents, long before the acts enumerated here. As early as the 16th Century , following Francis Drake's circumnavigation , Queen Elizabeth I declared that all written accounts of Drake's voyages were to become the "Queen's secrets of the Realm". In addition, Drake and the other participants of his voyages were sworn to their secrecy on

2244-815: The Act. The United States does not have a broad-reaching Official Secrets Act, although the Espionage Act of 1917 has similar components. Much of the Espionage Act remains in force, although some has been struck down by the Supreme Court as unconstitutional because of the First Amendment (see United States v. The Progressive , Brandenburg v. Ohio , New York Times Co. v. United States ). 18 U.S.C.   § 798 , enacted in 1951, makes dissemination of secret information involving cryptography , espionage , and surveillance illegal for all people, and

2312-680: The Administrative Court within the High Court of England and Wales ). The United States employs a mixed system in which some administrative decisions are reviewed by the United States district courts (which are the general trial courts), some are reviewed directly by the United States courts of appeals and others are reviewed by specialized tribunals such as the United States Court of Appeals for Veterans Claims (which, despite its name,

2380-746: The British Empire used Most Secret , but this was later changed to match the United States' category name of Top Secret in order to simplify Allied interoperability. The Washington Post reported in an investigation entitled "Top Secret America" that, as of 2010, "An estimated 854,000 people ... hold top-secret security clearances" in the United States. It is desired that no document be released which refers to experiments with humans and might have adverse effect on public opinion or result in legal suits. Documents covering such work field should be classified "secret". April 17, 1947 Atomic Energy Commission memo from Colonel O.G. Haywood, Jr. to Dr. Fidler at

2448-496: The NATIONAL CABINET caveat, OFFICIAL: Sensitive or higher). Australia has four caveats: Codewords are primarily used within the national security community. Each codeword identifies a special need-to-know compartment . Foreign government markings are applied to information created by Australian agencies from foreign source information. Foreign government marking caveats require protection at least equivalent to that required by

2516-736: The Non-National Security (NNS) classification marking scheme in Australia was unified into one structure. As of 2018, the policy detailing how Australian government entities handle classified information is defined in the Protective Security Policy Framework (PSPF). The PSPF is published by the Attorney-General's Department and covers security governance, information security , personal security, and physical security .  A security classification can be applied to

2584-513: The OSA in a manner that can prevent politically embarrassing disclosures rather than purely safeguarding national security. This has led to calls for reform, including recommendations from the Law Commission to modernise the Acts, introduce clearer language, and incorporate provisions that balance state security with transparency and public interest . In response to ongoing concerns and to address

2652-815: The Oak Ridge Laboratory in Tennessee. As of 2010 , Executive Order 13526 bans classification of documents simply to "conceal violations of law, inefficiency, or administrative error" or "prevent embarrassment to a person, organization, or agency". Secret material would cause "serious damage" to national security if it were publicly available. In the United States, operational "Secret" information can be marked with an additional "LimDis", to limit distribution. Confidential material would cause "damage" or be prejudicial to national security if publicly available. Restricted material would cause "undesirable effects" if publicly available. Some countries do not have such

2720-694: The Supreme Court's ruling in Marbury v. Madison that the court had the power of judicial review to enforce the separation of powers stated in the US Constitution. This was left uncontested by the U.S. Congress and president Thomas Jefferson , despite his expressed opposition to the principle of judicial review by an unelected body. Separation of powers is based on the idea that no branch of government should be able to exert power over any other branch without due process of law ; each branch of government should have

2788-546: The U.S. ) Special Intelligence (SI), which protects intelligence sources and methods, No Foreign dissemination (NoForn), which restricts dissemination to U.S. nationals, and Originator Controlled dissemination (OrCon), which ensures that the originator can track possessors of the information. Information in these compartments is usually marked with specific keywords in addition to the classification level. Government information about nuclear weapons often has an additional marking to show it contains such information ( CNWDI ). When

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2856-459: The United States, federal and state courts (at all levels, both appellate and trial) are able to review and declare the " constitutionality ", or agreement with the Constitution (or lack thereof) of legislation by a process of judicial interpretation that is relevant to any case properly within their jurisdiction. In American legal language, "judicial review" refers primarily to the adjudication of

2924-402: The adjacent example. The question exists among some political science and legal experts whether the definition of classified ought to be information that would cause injury to the cause of justice, human rights, etc., rather than information that would cause injury to the national interest; to distinguish when classifying information is in the collective best interest of a just society, or merely

2992-441: The best interest of a society acting unjustly to protect its people, government, or administrative officials from legitimate recourses consistent with a fair and just social contract . The purpose of classification is to protect information. Higher classifications protect information that might endanger national security . Classification formalises what constitutes a "state secret" and accords different levels of protection based on

3060-411: The case law and in which it was repeatedly endorsed during the debate over the Constitution," and thus, on a personal level, Marshall "must have experienced judicial review as long-established." Moreover, "The fact that judicial review was exercised much more frequently than previously recognized in the years before Marbury helps explain why Marshall's assertion of the power to exercise judicial review in

3128-419: The civil-law tradition, judges are seen as those who apply the law, with no power to create (or destroy) legal principles. Secondly, the idea of separation of powers is another theory about how a democratic society's government should be organized. In contrast to legislative supremacy, the idea of separation of powers was first introduced by Montesquieu ; it was later institutionalized in the United States by

3196-481: The classification of an information asset and rules on how to protect information classified at each level. This process often includes security clearances for personnel handling the information. Some corporations and non-government organizations also assign levels of protection to their private information, either from a desire to protect trade secrets , or because of laws and regulations governing various matters such as personal privacy , sealed legal proceedings and

3264-531: The constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation passed by the Dutch legislature or States-General . In countries which have inherited the English common law system of courts of general jurisdiction, judicial review is generally done by those courts, rather than specialised courts. Australia, Canada and the United States are all examples of this approach. In

3332-561: The constitutionality of statutes, especially by the Supreme Court of the United States . Courts in the United States may also invoke judicial review in order to ensure that a statute is not depriving individuals of their constitutional rights. This is commonly held to have been established in the case of Marbury v. Madison , which was argued before the Supreme Court in 1803. Judicial review in Canada and Australia pre-dates their establishment as countries, in 1867 and 1901, respectively. The British Colonial Laws Validity Act 1865 provided that

3400-568: The context of two distinct—but parallel—legal systems, civil law and common law , and also by two distinct theories of democracy regarding the manner in which government should be organized with respect to the principles and doctrines of legislative supremacy and the separation of powers. First, two distinct legal systems, civil law and common law , have different views about judicial review. Common-law judges are seen as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. In

3468-536: The disclosure of official documents and information. The Act was first introduced to Singapore in 1935 as the Official Secrets Ordinance. Section 5 of the Act prohibits the wrongful communication of information that is considered sensitive by the government. The Official Secrets Acts (OSA) of the UK comprise several laws aimed at the protection of state secrets and the prevention of espionage . The key Acts are

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3536-505: The evolving landscape of national security threats, the UK enacted the National Security Act 2023 . This new legislation aims to modernise the country's approach to safeguarding official data and combating espionage , reflecting the recommendations put forth by the Law Commission and other stakeholders. The National Security Act 2023 introduces several key features aimed at addressing contemporary security challenges. It modernises

3604-405: The expected damage the information might cause in the wrong hands. However, classified information is frequently "leaked" to reporters by officials for political purposes. Several U.S. presidents have leaked sensitive information to influence public opinion. Although the classification systems vary from country to country, most have levels corresponding to the following British definitions (from

3672-599: The foreign government providing the source information. Special handling instructions are used to indicate particular precautions for information handling. They include: A releasability caveat restricts information based on citizenship . The three in use are: Additionally, the PSPF outlines Information Management Markers (IMM) as a way for entities to identify information that is subject to non-security related restrictions on access and use. These are: There are three levels of document classification under Brazilian Law No. 12.527,

3740-415: The highest level to lowest). Top Secret is the highest level of classified information. Information is further compartmented so that specific access using a code word after top secret is a legal way to hide collective and important information. Such material would cause "exceptionally grave damage" to national security if made publicly available. Prior to 1942, the United Kingdom and other members of

3808-407: The information itself or an asset that holds information e.g., a USB or laptop . The Australian Government uses four security classifications: OFFICIAL: Sensitive, PROTECTED, SECRET and TOP SECRET. The relevant security classification is based on the likely damage resulting from compromise of the information’s confidentiality.. All other information from business operations and services requires

3876-404: The language and definitions used in previous Official Secrets Acts, making them relevant to current threats and technologies. The Act expands the scope of espionage to include cyber threats and other modern tactics, ensuring comprehensive coverage of all potential security risks. Notably, it introduces a public interest defence for the first time, allowing individuals to argue that their disclosure

3944-422: The laws have been criticised for being outdated and not adequately addressing contemporary issues related to information technology and modern espionage. Jarvis points out the lack of a 'public interest' defence in the current legislation, which has been a significant point of contention among legal experts, media, and public advocacy groups. According to Jarvis, the current framework allows the government to wield

4012-646: The pain of death; the Queen intended to keep Drake's activities away from the eyes of rival Spain. Australia previously had Part VII of the Crimes Act 1914 (Commonwealth), entitled Official Secrets and Unlawful Soundings , since repealed and replaced with Part 5.6 – Secrecy of Information of the Criminal Code Act (1995). The British Official Secrets Act 1889 (52 & 53 Vict. c. 52) was adopted in Canada with minor modifications in 1890. Its provisions became part of

4080-562: The parties to the lawsuit; in the second, the Court's decision must be followed by judges and government officials at all levels. Judicial review as a contribution to political theory is sometimes said to be a "distinctively American contribution," argued to have been established in the US Supreme Court's decision in Marbury v. Madison (1803). However, "the American version of judicial review

4148-566: The same way that judicial decisions are, rather a court will enforce that principles of procedural fairness are followed when making judicial decisions. Most modern legal systems allow the courts to review administrative "acts" (individual decisions of a public body, such as a decision to grant a subsidy or to withdraw a residence permit). In most systems, this also includes review of secondary legislation (legally enforceable rules of general applicability adopted by administrative bodies). Some countries (notably France and Germany) have implemented

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4216-425: The statement. The signature serves primarily as a reminder of the obligations under the Act. The now-repealed Naval Discipline Act 1957 also played a role in protecting sensitive information by making it an offence to spy on-board Royal Navy ships or overseas bases, punishable by life imprisonment, and previously a capital offence until 1981. Jarvis provides a critical analysis of these Acts. He highlights that

4284-537: The term 'judicial review' generally refers to reviews of the lawfulness of the actions of the executive and the public service, while reviews of the compatibility of laws with the Australian Constitution is known as characterisation or constitutional challenges. In 1920, Czechoslovakia adopted a system of judicial review by a specialized court, the Constitutional Court as written by Hans Kelsen ,

4352-498: The timing of financial information releases. With the passage of time much classified information can become less sensitive, and may be declassified and made public. Since the late twentieth century there has been freedom of information legislation in some countries, whereby the public is deemed to have the right to all information that is not considered to be damaging if released. Sometimes documents are released with information still considered confidential obscured ( redacted ), as in

4420-425: Was justified in the public interest, thereby protecting whistleblowers who expose government wrongdoing or illegal activities. Additionally, the Act imposes stricter penalties for breaches of national security, reflecting the gravity of these offences in today's context. To ensure accountability and transparency , an independent statutory commissioner is established to oversee investigations into alleged breaches of

4488-407: Was much better established in the years immediately after the adoption of the [United States] constitution than has previously been recognized, and it was far from rare... [and] judicial invalidation of statutes fell into certain patterns." US Chief Justice John Marshall, the author of Marbury v. Madison , "came from Virginia, the state in which [judicial review] was particularly well established by

4556-640: Was tension between its tendency toward legislative supremacy and the EU's legal system, which specifically gives the Court of Justice of the European Union the power of judicial review. When carrying out judicial review a court may ensure that the principle of ultra vires are followed, that a public body's actions do not exceed the powers given to them by legislation. The decisions of administrative acts by public bodies under judicial review are not necessarily controlled in

4624-736: Was the logical result of centuries of European thought and colonial experience which had made Western [societies] generally willing to admit the theoretical primacy of certain kinds of law and had made Americans in particular ready to provide a judicial means of enforcing that primacy." That is, the "belief in the need to subordinate certain acts of the law-making power to higher, more permanent principles" can be seen, for example, in medieval European scholastics , courts of equity in England, Parlements in France, and Enlightenment philosophes . Moreover, writing in 2005, Treanor argued that "judicial review

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