Administrative Review Tribunal Act 2024

PART 6 - PROCEEDINGS IN INTELLIGENCE AND SECURITY JURISDICTIONAL AREA  

Division 4 - Disclosure of information  

SECTION 159   SENSITIVE INFORMATION CERTIFICATES - DIRECTOR-GENERAL OF SECURITY  
When this section applies

159(1)    
This section applies in relation to a proceeding for review of:

(a)    a security clearance decision; or

(b)    a security clearance suitability assessment.

Sensitive information certificates

159(2)    
The Director-General of Security or a person authorised by the Director-General under this section may certify, in writing, that, in the opinion of the Director-General or authorised person, disclosure of information (the sensitive information ) contained in a document given to the Tribunal by the Director-General in relation to a proceeding:

(a)    would be contrary to the public interest for one or more of the following reasons:

(i) the disclosure would prejudice the security, defence or international relations of the Commonwealth;

(ii) the disclosure would reveal information that has been disclosed to the Australian Security Intelligence Organisation in confidence;

(iii) any other reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the sensitive information or the matter contained in the document should not be disclosed; or

(b)    could reveal the methodology underlying a psychological assessment of the person who applied for the decision or assessment.

159(3)    
A certificate under subsection (2) is not a legislative instrument.

Effect of certificate

159(4)    
If a certificate is given under subsection (2) , the Tribunal must do all things necessary to ensure that the sensitive information is not disclosed to the applicant or any person other than:

(a)    the Director-General of Security or the Director-General ' s representative; or

(b)    a member in the course of the performance of the member ' s duties; or

(c)    the Principal Registrar in the course of the performance of the Principal Registrar ' s duties; or

(d)    a staff member in the course of the performance of the staff member ' s duties.

159(5)    
However, subsection (4) does 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.

Authorisations

159(6)    
The Director-General of Security may, in writing, authorise a person for the purposes of this section if the person is an ASIO employee (within the meaning of the ASIO Act), or an ASIO affiliate (within the meaning of that Act), who holds, or is acting in, a position in ASIO that is equivalent to or higher than a position occupied by an SES employee.