Australian Security Intelligence Organisation Amendment Act 2023 (33 of 2023)

Schedule 1   Amendments

Part 1   Main amendments

Division 2   Amendments to other Acts

Administrative Appeals Tribunal Act 1975

35   At the end of Division 4 of Part IV

Add:

39C Review of security clearance decisions and security clearance suitability assessments - consideration and disclosure of certain documents and information

(1) This section applies to a proceeding in the Security Division for a review of a security clearance decision or a security clearance suitability assessment in respect of the Commonwealth's highest level of security clearance.

Application of standard relating to highest security clearance

(2) If the Director-General of Security presents to the Tribunal a certified copy of a standard (or part thereof) under subsection 39BA(4):

(a) if the Director-General has presented one certified copy of a standard (or part thereof) - the Tribunal must apply the standard (or part thereof) in its review of the decision or suitability assessment; or

(b) if the Director-General has presented more than one certified copy of a standard (or part thereof) - the Tribunal must, in its review of the decision or suitability assessment, apply the standard (or part thereof) certified by the Director-General as being a current standard.

Disclosure of documents or information

(3) The Tribunal must, subject to this section and section 46, do all things necessary to ensure that a copy of any standard (or part thereof) presented to the Tribunal under subsection 39BA(4), or any information contained in it, is not disclosed to the applicant or any person other than:

(a) a member of the Tribunal as constituted for the purposes of the proceeding; or

(b) the Director-General of Security or the Director-General's representative.

(4) Subsection (5) applies if the Tribunal is provided with a document containing information (the sensitive information ) certified in writing by the Director-General of Security as being information that, in the opinion of the Director General or a person authorised by the Director-General under subsection (9):

(a) 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 Australian Security Intelligence 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; or

(b) could reveal the methodology underlying a psychological assessment of the applicant.

(5) The Tribunal must, subject to this section and section 46, do all things necessary to ensure that the sensitive information provided to the Tribunal is not disclosed to the applicant or any person other than:

(a) a member of the Tribunal as constituted for the purposes of the proceeding; or

(b) the Director-General of Security or the Director-General's representative.

(6) However, subsections (3) and (5) do not apply in relation to disclosure to the applicant or a person representing the applicant to the extent that the information:

(a) has already been lawfully disclosed to the applicant; or

(b) is disclosed to the applicant with the consent of the Director-General of Security.

(7) This section does not prevent the disclosure of a copy of any standard (or part thereof) presented to the Tribunal under subsection 39BA(4), any information contained in it, or any sensitive information referred to in subsection (4) of this section to a member of the Tribunal's staff in the course of the performance of the staff member's duties.

(8) This section excludes the operation, apart from this section, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure in a proceeding of a copy of any standard (or part thereof) presented to the Tribunal under subsection 39BA(4), any information contained in it, or any sensitive information referred to in subsection (4) of this section.

(9) The Director-General of Security 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 Australian Security Intelligence Organisation that is equivalent to or higher than a position occupied by an SES employee.