Australian Security Intelligence Organisation Amendment Act 2023 (33 of 2023)
Schedule 1 Amendments
Part 1 Main amendments
Division 1 Amendments to the Australian Security Intelligence Organisation Act 1979
Australian Security Intelligence Organisation Act 1979
12 After Part IV
Insert:
Part IVA - Security vetting and security clearance related activities
Division 1 - Preliminary
82 Purpose of this Part
(1) This Part is made for the purposes of paragraph 17(1)(cb) (which specifies the Organisation's function in relation to security vetting and security clearance related activities).
Note: Section 81 (secrecy) applies in relation to this Part.
(2) To avoid doubt:
(a) the Organisation's performance of the function specified in paragraph 17(1)(cb) is not limited by the operation of subsection 17(2) (which specifies limits on the Organisation carrying out or enforcing measures for security within an authority of the Commonwealth); and
(b) paragraph 17(1)(cb) and this Part do not limit the capacity of any other authority of the Commonwealth to undertake the kinds of activities referred to in that paragraph.
82A Definitions
In this Part:
affected person :
(a) in relation to an internally reviewable decision - has the meaning given by section 82H; and
(b) in relation to an externally reviewable decision - has the meaning given by section 83; and
(c) in relation to an independently reviewable decision - has the meaning given by section 83EA.
authority of a State includes the following:
(a) a State Minister;
(b) a Department of State, or a Department of the Public Service, of a State;
(c) a Police Force of a State;
(d) a body, whether incorporated or not, established for public purposes by or under a law of a State;
(e) a body corporate in which a State or a body referred to in paragraph (d) has a controlling interest.
externally reviewable decision has the meaning given by section 83.
independently reviewable decision has the meaning given by section 83EA.
independent reviewer means a person engaged as an independent reviewer under section 83EF.
internally reviewable decision has the meaning given by section 82H.
internal reviewer has the meaning given by subsection 82L(1).
prejudicial security clearance suitability assessment means a security clearance suitability assessment in respect of a person that contains information that would or could be prejudicial to a security clearance decision in respect of the person.
security vetting agency means an authority of the Commonwealth, a State or an authority of a State, whose functions or activities include making security clearance decisions.
sponsoring agency , in relation to a security clearance, means the Commonwealth agency, State or authority of a State that sponsors the security clearance or would sponsor the security clearance if it were granted.
82B Simplified outline of this Part
This Part deals with the Organisation's function in relation to security vetting and security clearance related activities.
The function includes undertaking security vetting to assess a person's suitability to hold, or to continue to hold, a security clearance, making security clearance decisions in respect of a person and furnishing security clearance suitability assessments in respect of a person.
The Director-General may, on behalf of the Organisation, exercise the powers and perform the functions of the Organisation under this Part, and may delegate those powers and functions under section 16.
There are some limitations on the actions certain persons or bodies can take on the basis of a communication from the Organisation under this Part that is not in the form of a security clearance suitability assessment. There are also some limitations on when the Organisation can make a communication under this Part to certain persons or bodies if the communication is not in the form of a security clearance suitability assessment.
Certain persons may apply to the Organisation for internal review of certain security clearance decisions. Certain persons may apply to the Administrative Appeals Tribunal for review of certain security clearance decisions made by an internal reviewer and prejudicial security clearance suitability assessments furnished by the Organisation to a security vetting agency. Certain persons may apply to an independent reviewer for review of certain security clearance decisions made by an internal reviewer.
Certain security clearance decisions and security clearance suitability assessments may be reviewed by the Administrative Appeals Tribunal if required by the Attorney-General.
Division 2 - Security vetting and security clearance related decisions
82C Security vetting and security clearance related activities
(1) For the purposes of the Organisation's function under paragraph 17(1)(cb), the Organisation may do any of the following:
(a) undertake security vetting to assess a person's suitability to hold a security clearance;
(b) make security clearance decisions;
(c) undertake ongoing security vetting and assessment of a person's suitability to continue to hold a security clearance that has been granted, or is taken under paragraph (2)(a) of this section to have been granted, by the Organisation;
(d) furnish a security clearance suitability assessment in respect of a person;
(e) communicate with a sponsoring agency for a security clearance in relation to the ongoing suitability of a person to hold the security clearance;
(f) assume responsibility for a security clearance that has been granted to a person by another security vetting agency;
(g) do anything incidental to a thing mentioned in any of paragraphs (a) to (f) of this subsection.
Note: In respect of communications made by the Organisation under this Part, it is the Organisation's responsibility to determine a person's suitability on security grounds to hold a security clearance. In respect of a person employed, or proposed to be employed, by a Commonwealth agency or other body, it is the responsibility of that agency or body to determine the person's suitability on employment grounds to be employed by that agency or body.
(2) If, at a time, the Organisation assumes responsibility for a security clearance under paragraph (1)(f):
(a) the security clearance is, after that time, taken to have been granted by the Organisation; and
(b) this Part applies in relation to a security clearance decision made after that time in respect of the security clearance.
Note: Internal review and review by the Administrative Appeals Tribunal, as provided for by this Part, do not apply to a security clearance decision made by a security vetting agency in respect of a security clearance before the Organisation assumes responsibility for the clearance.
(3) To avoid doubt, nothing in this Act prevents the Organisation from making a security clearance decision to impose a condition, or vary a condition imposed, on a security clearance in respect of a person in the following circumstances:
(a) where the person is not required to agree to the condition, or the variation of the condition, in order for the security clearance to be granted or continued;
(b) where the sponsoring agency for the security clearance, or the employer of the person, must agree to the condition, or the variation of the condition, in order for the security clearance to be granted to the person or continued in respect of the person.
82D Director-General's powers, functions and duties
(1) The powers and functions of the Organisation under this Part may be exercised or performed on behalf of the Organisation by the Director-General.
Note: See section 16 for the Director-General's power to delegate powers and functions under this subsection.
(2) The Director-General must ensure that the Organisation has policies andprocedures in place in relation to the exercise of a power or the performance of a function under this Part, including policies and procedures for the following:
(a) undertaking security vetting of a person;
(b) making security clearance suitability assessments and security clearance decisions.
(3) If a policy or procedure referred to in subsection (2) is in writing, the policy or procedure is not a legislative instrument.
82E Communications by Organisation to another Commonwealth security vetting agency
(1) This section applies in relation to a communication by the Organisation to another security vetting agency that is an authority of the Commonwealth (a Commonwealth security vetting agency ).
(2) ACommonwealthsecurity vetting agency must not make, refuse to make or refrain from making a security clearance decision in respect of a person on the basis of any communication in relation to the person made by the Organisation not amounting to a security clearance suitability assessment.
(3) Subsection (2) does not prevent a Commonwealth security vetting agency from making a security clearance decision to temporarily:
(a) suspend a security clearance, or revoke a suspension of a security clearance, held by a person; or
(b) impose a condition, or vary a condition imposed, on a security clearance in respect of a person;
in the circumstances referred to in subsection (4).
(4) The circumstances are that:
(a) the Organisation makes a communication to the Commonwealth security vetting agency pending the furnishing of a security clearance suitability assessment in respect of the person; and
(b) the Commonwealth security vetting agency is satisfied, on the basis of that communication, that the requirements of security make it necessary as a matter of urgency to make the security clearance decision pending the furnishing of the security clearance suitability assessment.
82F Communications by Organisation to State security vetting agency
(1) This section applies in relation to a communication (including a security clearance suitability assessment) by the Organisation to a security vetting agency that is a State or an authority of a State (a State security vetting agency ).
(2) Without limiting paragraph 82C(1)(d), the Organisation may furnish a security clearance suitability assessment in respect of a person to a State security vetting agency by:
(a) furnishing the assessment directly to the State security vetting agency; or
(b) furnishing the assessment to a Commonwealth agency for transmission to the State security vetting agency.
(3) The Organisation must not furnish a communication concerning a person, other than in the form of a security clearance suitability assessment or in accordance with subsection (4), to:
(a) a State security vetting agency if the Organisation knows the communication is intended or likely to be used by the State security vetting agency in considering whether to make, refuse to make or refrain from making a security clearance decision in respect of the person; or
(b) a Commonwealth agency if the Organisation knows that the Commonwealth agency intends to transmit the communication to a State security vetting agency for use in considering whether to make, refuse to make or refrain from making a security clearance decision in respect of the person.
(4) The Organisation may make a communication, pending the furnishing by the Organisation of a security clearance suitability assessment in respect of a person, to:
(a) a State security vetting agency; or
(b) a Commonwealth agency for transmission to a State security vetting agency;
if the Director-General, or a person authorised by the Director-General under subsection (6), is satisfied that the requirements of security make it necessary as a matter of urgency for the State security vetting agency to make a security clearance decision referred to in subsection (5) in respect of the person.
(5) For the purposes of subsection (4), the security clearance decision is a decision to temporarily:
(a) suspend a security clearance, orrevoke a suspension of a security clearance, held by the person; or
(b) impose a condition, or vary a condition imposed, on a security clearance in respect of the person.
(6) The Director-General may, in writing, authorise a person for the purposes of subsection (4) if the person is an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee.
82G Statement of grounds for prejudicial security clearance suitability assessments
(1) The Organisation must prepare a statement of grounds for a prejudicial security clearance suitability assessment furnished in respect of a person.
(2) The statement of grounds must contain all information that has been relied on by the Organisation in making the prejudicial security clearance suitability assessment, other than information the inclusion of which would, in the opinion of the Director-General or a person authorised by the Director-General under subsection (4), be prejudicial to security.
(3) For the purposes of this Part, the statement of grounds is taken to be part of the prejudicial security clearance suitability assessment.
(4) The Director-General may, in writing, authorise a person for the purposes of subsection (2) if the person is an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee.
Division 3 - Review of certain security clearance decisions and prejudicial security clearance suitability assessments
Subdivision A - Internal review of certain security clearance decisions
82H Internally reviewable decisions
Internally reviewable decisions
(1) For the purposes of this Division, each of the following security clearance decisions is an internally reviewable decision :
(a) a decision by the Organisation to deny a security clearance in respect of a person (the affected person );
(b) a decision by the Organisation to revoke a security clearance held by a person (the affected person );
(c) a decision by the Organisation to impose a condition, or vary a condition imposed, on a security clearance in respect of a person (the affected person ) if:
(i) in the case of a security clearance that has not yet been granted - the affected person must agree to the condition before the security clearance will be granted; or
(ii) in the case of a security clearance that has already been granted - the affected person must agree to the condition, or the variation of the condition, otherwise the security clearance will be revoked.
Exceptions
(2) A decision of an internal reviewer, on behalf of the Organisation, under subsection 82L(3) is not an internally reviewable decision for the purposes of this Division.
(3) A security clearance decision in respect of a person is not an internally reviewable decision for the purposes of this Division if the person:
(a) is engaged, or proposed to be engaged, for employment outside Australia for duties outside Australia; and
(b) is not an Australian citizen or is not normally resident in Australia.
82J Notification of internally reviewable decision
(1) Within 14 days after the day on which an internally reviewable decision is made, the Organisationmust give the affected person, and the sponsoring agency for the security clearance in relation to which the decision was made, notice in writing of the decision and reasons for the decision.
(2) A notice given under subsection (1) must also contain prescribed information concerning the affected person's right to apply to the Organisation under this Subdivision for internal review of the decision.
(3) Section 25D of the Acts Interpretation Act 1901 does not apply in relation to the reasons notified under subsection (1).
(4) Without limiting what the Organisation can choose to include or not include in the reasons notified under subsection (1), the Organisation may withhold any of the following from the reasons:
(a) any information relating to a standard relating to the Commonwealth's highest level of security clearance that was used to make the decision if the inclusion of the information would, in the opinion of the Director-General or a person authorised by the Director-General under subsection (5), be prejudicial to security;
(b) any information that, in the opinion of the Director-General or a person authorised by the Director-General under subsection (5), would be contrary to the public interest:
(i) because it would prejudice security, the defence of the Commonwealth or the conduct of the Commonwealth's international affairs; or
(ii) because it would reveal information that has been disclosed to the Organisation in confidence; or
(iii) for a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed;
(c) any information that, in the opinion of the Director-General or a person authorised by the Director-General under subsection (5), could reveal the methodology underlying a psychological assessment of the affected person.
(5) The Director-General may, in writing, authorise a person for the purposes of subsection (4) if the person is an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee.
82K Application for internal review of decision
(1) An affected person may apply under this section for the review of an internally reviewable decision.
(2) An application for review must be made, in writing, to the Organisation within:
(a) 30 days after the day the person is given notice of the decision under section 82J; or
(b) any further period that the Organisation allows.
82L Decision on internal review
Decision on internal review
(1) If an application for review of an internally reviewable decision is made in accordance with section 82K, the Organisation must arrange for a person (the internal reviewer ) to review the decision in as timely a manner as is possible.
(2) The internal reviewer must not be the person who made the internally reviewable decision.
(3) After reviewing the decision, the internal reviewer, on behalf of the Organisation:
(a) must make a decision to affirm, vary or set aside the internally reviewable decision; and
(b) if the internal reviewer sets aside the internally reviewable decision in respect of a person - may make another security clearance decision in respect of the person for the purposes of paragraph 82C(1)(b).
(4) A decision of an internal reviewer under paragraph (3)(a) is also taken to be a security clearance decision made by the Organisation for the purposes of paragraph 82C(1)(b).
Notification of internal reviewer's decision
(5) Within 14 days after the day on which the internal reviewer makes a decision under this section, the Organisation must give the affected person, and the sponsoring agency for the security clearance in relation to which the decision was made, notice in writing of the internal reviewer's decision and reasons for the decision.
(6) If the internal reviewer's decision under subsection (3) is an externally reviewable decision under Subdivision B, the notice given under subsection (5) must also contain prescribed information concerning the affected person's right to apply to the Administrative Appeals Tribunal under that Subdivision for review of the decision.
(6A) If the internal reviewer's decision under subsection (3) is an independently reviewable decision under Subdivision C, the notice given under subsection (5) must also contain prescribed information concerning the affected person's right to apply to an independent reviewer under that Subdivision for review of the decision.
(7) Section 25D of the Acts Interpretation Act 1901 does not apply in relation to the reasons notified under subsection (5).
(8) Without limiting what the Organisation can choose to include or not include in the reasons notified under subsection (5) for a decision, the Organisation may withhold any of the following from the reasons:
(a) any information relating to a standard relating to the Commonwealth's highest level of security clearance that was used to make the decision if the inclusion of the information would, in the opinion of the Director-General or a person authorised by the Director-General under subsection (9), be prejudicial to security;
(b) any information that, in the opinion of the Director-General or a person authorised by the Director-General under subsection (9), would be contrary to the public interest:
(i) because it would prejudice security, the defence of the Commonwealth or the conduct of the Commonwealth's international affairs; or
(ii) because it would reveal information that has been disclosed to the Organisation in confidence; or
(iii) for a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed;
(c) any information that, in the opinion of the Director-General or a person authorised by the Director-General under subsection (9), could reveal the methodology underlying a psychological assessment of the affected person.
(9) The Director-General may, in writing, authorise a person for the purposes of subsection (8) if the person is an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee.
Subdivision B - Review by the Administrative Appeals Tribunal of certain security clearance decisions and security clearance suitability assessments
83 Externally reviewable decisions
(1) For the purposes of this Division, each of the following security clearance decisions by an internal reviewer, on behalf of the Organisation, is an externally reviewable decision :
(a) a decision under paragraph 82L(3)(a) to affirm an internally reviewable decision in respect of a person (the affected person ) who, immediately before the internally reviewable decision was made, held a security clearance or was a Commonwealth employee;
(b) a decision under paragraph 82L(3)(a) to vary an internally reviewable decision in respect of a person (the affected person ) who, immediately before the internally reviewable decision was made, held a security clearance or was a Commonwealth employee;
(c) any of the following decisions under paragraph 82L(3)(b) in respect of a person (the affected person ) who, immediately before the internally reviewable decision was made, held a security clearance or was a Commonwealth employee:
(i) a decision to deny a security clearance in respect of the affected person;
(ii) a decision to revoke a security clearance in respect of the affected person;
(iii) a decision to impose a condition, or vary a condition imposed, on a security clearance in respect of the affected person and a circumstance in subparagraph 82H(1)(c)(i) or (ii) applies.
(2) For the purposes of this Division, a prejudicial security clearance suitability assessmentin respect of a person (the affected person ) furnished by the Organisation to a security vetting agency is an externally reviewable decision .
(3) However, a security clearance decision or a prejudicial security clearance suitability assessment in respect of a person is not an externally reviewable decision for the purposes of this Division if the person:
(a) is engaged, or proposed to be engaged, for employment outside Australia for duties outside Australia; and
(b) is not an Australian citizen or is not normally resident in Australia.
(4) For the purposes of this section:
Commonwealth employee means a person who:
(a) is:
(i) an APS employee; or
(ii) employed under the Members of Parliament (Staff) Act 1984; or
(iii) a Parliamentary Service employee (within the meaning of the Parliamentary Service Act 1999); or
(iv) a member of the Defence Force; or
(v) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979) or a special member (within the meaning of that Act); or
(vi) an employee of an agency within the national intelligence community (within the meaning of the Office of National Intelligence Act 2018); and
(b) has completed any period of probation that applies to the employment; and
(c) is not employed in a Commonwealth company (within the meaning of the Public Governance, Performance and Accountability Act 2013) or corporate Commonwealth entity (within the meaning of that Act).
Note: A person is not a Commonwealth employee if the person is engaged as a consultant, contractor or subcontractor.
83A Notification of prejudicial security clearance suitability assessment that is an externally reviewable decision
Notification of prejudicial security clearance suitability assessment
(1) Within 14 days after the day on which the Organisation furnishes a prejudicial security clearance suitability assessment that is an externally reviewable decision to a security vetting agency, the security vetting agency must give the affected person notice in writing of the assessment and a copy of the assessment (including a copy of the statement of grounds for the assessment).
Note: The statement of grounds for a security clearance suitability assessment is taken to be part of the assessment (see subsection 82G(3)).
(2) A notice given under subsection (1) must also contain prescribed information concerning the affected person's right to apply to the Administrative Appeals Tribunal under this Subdivision for review of the externally reviewable decision.
(3) However:
(a) subsections (1) and (2) do not apply if the Minister gives a certificate in accordance with paragraph (4)(a) in respect of the notice for the prejudicial security clearance suitability assessment; and
(b) if the Minister gives a certificate in accordance with paragraph (4)(b) in respect of the statement of grounds for the prejudicialsecurity clearance suitability assessment, the copy of the statement of grounds, or that part of the statement to which the certificate applies, must not be given to the affected person.
Certificate to withhold notice or statement of grounds
(4) The Minister may, by writing signed by the Minister and given to the Director-General, certify that the Minister is satisfied that:
(a) the withholding of notice of the prejudicial security clearance suitability assessment in respect of the affected person is essential to the security of the nation; or
(b) the disclosure to an affected person of the statement of grounds for the prejudicial security clearance suitability assessment in respect of the affected person, or a particular part of that statement, would be prejudicial to the interests of security.
(5) If the Minister gives a certificate under subsection (4), the Minister must cause a copy of the certificate to be given to the following:
(a) the security vetting agency to which the prejudicial security clearance suitability assessment was furnished;
(b) the sponsoring agency for the security clearance in relation to which the prejudicial security clearance suitability assessment was furnished.
(6) Before the end of the following periods, the Minister must consider whether to revoke a certificate given under paragraph (4)(a) (if the certificate remains in force):
(a) 12 months after it was given;
(b) each 12 month period after the Minister last considered whether to revoke it.
Delegation
(7) The Minister may, in writing, delegate the Minister's powers and functions under paragraph (4)(b) to an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee.
(8) In performing a function or exercising a power under a delegation under subsection (7), the delegate must comply with any written directions of the Minister.
83B Applications to Administrative Appeals Tribunal
(1) Applications may be made to the Administrative Appeals Tribunal for review of security clearance decisions, or security clearance suitability assessments, that are externally reviewable decisions.
Note: See section 27AA of the Administrative Appeals Tribunal Act 1975 for who can apply for a review under this section.
(2) At any time after the completion of a review by the Administrative Appeals Tribunal of the security clearance decision or security clearance suitability assessment, an application may be made to the Tribunal for review of the findings of the Tribunal on the ground that the applicant has fresh evidence of material significance that was not available at the time of the previous review.
83C Statement of grounds for security clearance decision
(1) This section applies if the Director-General is notified under Part IV of the Administrative Appeals Tribunal Act 1975 of an application to the Administrative Appeals Tribunal for the review of a security clearance decision that is an externally reviewable decision.
Statement of grounds
(2) As soon as practicable after the Director-General receives notice of the application, the Organisation must:
(a) prepare a statement of grounds for the security clearance decision; and
(b) subject to subsections (5) and (7), give a copy of the statement of grounds to the affected person.
Note: The Director-General must also lodge a copy of the statement of grounds with the Administrative Appeals Tribunal (see subsection 38A(1B) of the Administrative Appeals Tribunal Act 1975).
(3) The statement of grounds must contain all information that has been relied on by the Organisation in making the security clearance decision.
(4) For the purposes of this Part, the statement of grounds is taken to be part of the security clearance decision.
Information to be excluded from copy given to affected person
(5) If the security clearance decision is in respect of the Commonwealth's highest level of security clearance, the copy of the statement of grounds given to the affected person must not include the following:
(a) any information relating to a standardrelating to the Commonwealth's highest level of security clearancethat was used to make the decision if the inclusion of the information would, in the opinion of the Director-General or a person authorised by the Director-General under subsection (8), be prejudicial to security;
(b) any information that, in the opinion of the Director-General or a person authorised by the Director-General under subsection (8), would be contrary to the public interest:
(i) because it would prejudice security, the defence of the Commonwealth or the conduct of the Commonwealth's international affairs; or
(ii) because it would reveal information that has been disclosed to the Organisation in confidence; or
(iii) for a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed;
(c) any information that, in the opinion of the Director-General or a person authorised by the Director-General under subsection (8), could reveal the methodology underlying a psychological assessment of the affected person.
Certificate to withhold statement of grounds
(6) The Minister may, by writing signed by the Minister and given to the Director-General, certify that the Minister is satisfied that the disclosure to an affected person of the statement of grounds for the security clearance decision in respect of the affected person, or a particular part of that statement, would be prejudicial to the interests of security.
(7) If the Minister gives a certificate in accordance with subsection (6) in respect of the statement of grounds for the security clearance decision, the copy of the statement of grounds, or that part of the statement to which the certificate applies, must not be given to the affected person.
Delegations and authorisations
(8) The Director-General may, in writing, authorise a person for the purposes of subsection (5) if the person is an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee.
(9) The Minister may, in writing, delegate the Minister's powers and functions under subsection (6) to an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee.
(10) In performing a function or exercising a power under a delegation under subsection (9), the delegate must comply with any written directions of the Minister.
83D Effect of findings
(1) If a security clearance decision, or security clearance suitability assessment, that is an externally reviewable decision has been reviewed by the Administrative Appeals Tribunal:
(a) every Commonwealth agency, State or authority of a State for which the security clearance decision or security clearance suitability assessment is relevant; and
(b) any tribunal, person or authority having power to hear appeals from, or to review, a decision with respect to the security clearance decision or security clearance suitability assessment;
must treat the findings of the Administrative Appeals Tribunal, to the extent that they do not affirm the security clearance decision or security clearance suitability assessment, as superseding that decision or assessment.
(2) If the Administrative Appeals Tribunal has made findings upon a review of a security clearance decision, or security clearance suitability assessment, that is an externally reviewable decision, the Organisation must not make a further security clearance decision or security clearance suitability assessment in respect of the affected person that is not in accordance with those findings except on the basis of matters occurring after the review or of which evidence was not available at the time of the review.
83E Conclusive certificates
(1) The Minister may, in exceptional circumstances, issue a conclusive certificate in relation to a security clearance decision, or security clearance suitability assessment, that is an externally reviewable decision if the Minister believes that:
(a) it would be prejudicial to security to change the decision or assessment; or
(b) it would be prejudicial to security for the decision or assessment to be reviewed.
(2) The Administrative Appeals Tribunal must not review, or continue to review, a security clearance decision or security clearance suitability assessment in relation to which the Minister has issued a conclusive certificate under subsection (1).
Subdivision C - Review by an independent reviewer
83EA Independently reviewable decisions
(1) For the purposes of this Division, each of the following security clearance decisions by an internal reviewer, on behalf of the Organisation, is an independently reviewable decision :
(a) a decision under paragraph 82L(3)(a) to affirm an internally reviewable decision in respect of a person (the affected person ) who, immediately before the internally reviewable decision was made, neither held a security clearance nor was a Commonwealth employee;
(b) a decision under paragraph 82L(3)(a) to vary an internally reviewable decision in respect of a person (the affected person ) who, immediately before the internally reviewable decision was made, neither held a security clearance nor was a Commonwealth employee;
(c) any of the following decisions under paragraph 82L(3)(b) in respect of a person (the affected person ) who, immediately before the internally reviewable decision was made, neither held a security clearance nor was a Commonwealth employee:
(i) a decision to deny a security clearance in respect of the affected person;
(ii) a decision to revoke a security clearance in respect of the affected person;
(iii) a decision to impose a condition, or vary a condition imposed, on a security clearance in respect of the affected person and a circumstance in subparagraph 82H(1)(c)(i) or (ii) applies.
(2) However, a security clearance decision in respect of a person is not an independently reviewable decision for the purposes of this Division if the person:
(a) is engaged, or proposed to be engaged, for employment outside Australia for duties outside Australia; and
(b) is not an Australian citizen or is not normally resident in Australia.
(3) For the purposes of this section:
Commonwealth employee means a person who:
(a) is:
(i) an APS employee; or
(ii) employed under the Members of Parliament (Staff) Act 1984; or
(iii) a Parliamentary Service employee (within the meaning of the Parliamentary Service Act 1999); or
(iv) a member of the Defence Force; or
(v) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979) or a special member (within the meaning of that Act); or
(vi) an employee of an agency within the national intelligence community (within the meaning of the Office of National Intelligence Act 2018); and
(b) has completed any period of probation that applies to the employment; and
(c) is not employed in a Commonwealth company (within the meaning of the Public Governance, Performance and Accountability Act 2013) or corporate Commonwealth entity (within the meaning of that Act).
Note: A person is not a Commonwealth employee if the person is engaged as a consultant, contractor or subcontractor.
83EB Application for independent review of decision
(1) An affected person may apply under this section for review of an independently reviewable decision.
(2) An application for review must be made, in writing, to an independent reviewer within:
(a) 30 days after the day the person is given notice of the decision under section 82L(5); or
(b) any further period that an independent reviewer allows.
Note: The notice given to the affected person of the independently reviewable decision must contain prescribed information concerning the person's right to apply to an independent reviewer for review of the decision (see subsection 82L(6A)).
(3) As soon as practicable after receiving an application made in accordance with subsection (2), the independent reviewer must:
(a) decide whether to review the independently reviewable decision; and
(b) give the affected person, the Director-General and the sponsoring agency for the security clearance in relation to which the independently reviewable decision was made notice in writing of the independent reviewer's decision under paragraph (a).
83EC Director-General to provide information to independent reviewer
(1) If the Director-General receives notice under paragraph 83EB(3)(b) that the independent reviewer has decided to review the independently reviewable decision, the Director-General must, in as timely a manner as is possible, provide to the independent reviewer all information that was relied upon by the internal reviewer in making the independently reviewable decision.
(2) Without limiting subsection (1), the Director-General may provide to the independent reviewer a copy of any standard (or part thereof) certified in writing by the Director-General as a standard relating to the Commonwealth's highest level of security clearance that was used to make the independently reviewable decision.
Note: A standard relating to the Commonwealth's highest level of security clearance is part of the Australian Government's framework of protective security policy.
(3) The independent reviewer may, in writing, request the Director-General to seek information from the affected person for the purposes of the independent review.
(4) If the Director-General receives a request under subsection (3), the Director-General must use the Director-General's best endeavours to seek the information from the affected person and provide the information to the independent reviewer.
(5) The independent reviewer must:
(a) comply with any reasonable directions of the Director-General in relation to the protection or handling of information provided to the independent reviewer under this section; and
(b) do all things necessary to ensure that any information provided to the independent reviewer (including any copy of a standard provided to the independent reviewer under subsection (2)) is not disclosed to the affected person.
Delegation
(6) The Director-General may, in writing, delegate the Director-General's powers and functions under subsection (1) to an ASIO employee, or an ASIO affiliate.
(7) The Director-General may, in writing, delegate the Director-General's powers and functions under paragraph (5)(a) to an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee.
(8) In performing a function or exercising a power under a delegation under subsection (6) or (7), the delegate must comply with any written directions of the Director-General.
83ED Independent review of decision
Consideration of decision
(1) This section applies if the independent reviewer decides under subsection 83EB(3) to review the independently reviewable decision.
(2) The independent reviewer must review the decision in as timely a manner as is possible.
(3) In reviewing the decision the independent reviewer must:
(a) consider all the information provided to the independent reviewer by the Director-General under section 83EC; and
(b) if the Director-General provided a certified copy of a standard (or part thereof) under subsection 83EC(2) - the independent reviewer must apply the standard (or part thereof).
Opinion in relation to decision
(4) After reviewing the decision, the independent reviewer must give the Director-General, in writing, the independent reviewer's opinion as to whether the independently reviewable decision was reasonably open to have been made by the internal reviewer who made the decision.
(5) The independent reviewer must also give a copy of the opinion to the Inspector-General of Intelligence and Security.
(6) Within 14 days after the day on which the independent reviewer gives the Director-General the opinion under subsection (4), the independent reviewer must give the affected person, and the sponsoring agency for the security clearance in relation to which the independently reviewable decision was made, notice that the opinion has been given.
(7) The independent reviewer must not give the opinion to the affected person or the sponsoring agency for the security clearance in relation to which the independently reviewable decision was made.
83EE Director-General's consideration of independent reviewer's opinion
(1) If the independent reviewer has, under subsection 83ED(4), given the Director-General an opinion in relation to the independently reviewable decision, the Director-General must, in as timely a manner as is possible, consider the opinion and decide whether to take any action.
Note: An action may include causing the making, by the Organisation, of a new security clearance decision in respect of the affected person under Division 2.
(2) The Director-General must, as soon as practicable after deciding whether to take any action, give the affected person, the Inspector-General of Intelligence and Security and the sponsoring agency for the security clearance in relation to which the independently reviewable decision was made notice in writing of the Director-General's decision.
(3) If an action the Director-General decides to take is to cause the Organisation to make a new security clearance decision in respect of the affected person under Division 2, the Director-General must ensure that the new decision is not made by either of the following:
(a) the internal reviewer who made the independently reviewable decision;
(b) the person who made the internally reviewable decision in respect of which the internal reviewer made the independently reviewable decision.
Delegation
(4) The Director-General may, in writing, delegate the Director-General's powers and functions under subsection (1) to an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee.
(5) In performing a function or exercising a power under a delegation under subsection (4), the delegate must comply with any written directions of the Director-General.
83EF Attorney-General may engage independent reviewers
(1) The Attorney-General may, on behalf of the Commonwealth, engage one or more individuals, as contractors, to be independent reviewers for the purposes of this Subdivision.
(2) The engagement must be by written agreement.
(3) The Attorney-General must not engage a person to be an independent reviewer unless the Attorney-General is satisfied that:
(a) the person has appropriate skills or qualifications to perform the role; and
(b) the person holds a security clearance that is the Commonwealth's highest level of security clearance.
(4) A person must not be engaged as an independent reviewer if the person is a current, or former, ASIO employee or ASIO affiliate.
Division 4 - Other matters relating to review by the Administrative Appeals Tribunal
83F Reference of certain matters to Administrative Appeals Tribunal by Attorney-General
(1) This section applies if:
(a) the Organisation has furnished to a security vetting agency a security clearance suitability assessment in respect of a person other than a security clearance suitability assessment of which a copy has been given to that person in accordance with this Part; or
(b) the Organisation has made a security clearance decision in respect of a person other than a security clearance decision that is an internally reviewable decision or an externally reviewable decision.
(2) The Attorney-General may, if satisfied that it is desirable to do so by reason of special circumstances, require the Administrative Appeals Tribunal to:
(a) inquire and report to the Attorney-General and the Minister upon any question concerning the furnishing of the security clearance suitability assessment or the making of the security clearance decision; or
(b) review the security clearance suitability assessment or security clearance decision and any information or matter on which the assessment or decision was based.
(3) If the Attorney-General makes a requirement of the Administrative Appeals Tribunal under subsection (2), the Tribunal must comply with the requirement and report its findings to the Attorney-General and the Minister.
(4) For the purposes of determining whether it is desirable to make a requirement of the Administrative Appeals Tribunal under subsection (2) in relation to a matter, the Attorney-General may request the Inspector-General of Intelligence and Security to:
(a) inquire into the matter or into a specified aspect of the matter; and
(b) report to the Attorney-General and the Minister the results of the inquiry.
(5) If the Attorney-General makes a request of the Inspector-General under subsection (4), the Inspector-General must comply with the request.
(6) The constitution and procedure of the Administrative Appeals Tribunal under this section must be as determined by the President.
(7) The following provisions do not apply in relation to a review under this section:
(a) subsection 83D(1) of this Act (which is about the effect of findings);
(b) sections 43 and 43AAB of the Administrative Appeals Tribunal Act 1975 (which are about the Tribunal's decision on review and the Tribunal's findings).
(8) However, if the Administrative Appeals Tribunal has made findings under this section, the Attorney-General must, subject to the requirements of security, take or cause to be taken such action in relation to those findings, by way of communication or publication of the findings or alteration of records, as the Attorney-General considers appropriate in the interests of justice.