Administrative Appeals Tribunal Act 1975

PART IV - REVIEWS BY THE TRIBUNAL OF DECISIONS  

Division 4 - Hearings and evidence  

SECTION 39C   REVIEW OF SECURITY CLEARANCE DECISIONS AND SECURITY CLEARANCE SUITABILITY ASSESSMENTS - CONSIDERATION AND DISCLOSURE OF CERTAIN DOCUMENTS AND INFORMATION  

39C(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

39C(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

39C(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.

39C(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.

39C(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.

39C(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.

39C(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.

39C(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.

39C(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.