AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION AMENDMENT BILL 2023

2022-2023

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Australian Security Intelligence

Organisation Amendment Bill 2023

No. , 2023

(Home Affairs)

A Bill for an Act to amend the Australian Security

Intelligence Organisation Act 1979, and for related

purposes

No. , 2023

Australian Security Intelligence Organisation Amendment Bill 2023

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 2

Schedule 1--Amendments

Part 1--Main amendments

Division 1--Amendments to the Australian Security Intelligence

Organisation Act 1979

Australian Security Intelligence Organisation Act 1979

Division 2--Amendments to other Acts

Administrative Appeals Tribunal Act 1975

Office of National Intelligence Act 2018

Part 2--Other amendments

Inspector-General of Intelligence and Security Act 1986

No. , 2023

Australian Security Intelligence Organisation Amendment Bill 2023

A Bill for an Act to amend the Australian Security

Intelligence Organisation Act 1979, and for related

purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Australian Security Intelligence Organisation

Amendment Act 2023

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Australian Security Intelligence Organisation Amendment Bill 2023

No. , 2023

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of

this Act

1 July 2023.

1 July 2023

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

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Schedule 1--Amendments

Part 1--Main amendments

Division 1

--Amendments to the Australian Security

Intelligence Organisation Act 1979

Australian Security Intelligence Organisation Act 1979

1 Section 4 (after paragraph (a) of the definition of authority

of a State)

Insert:

(aa) in Part IVA--has the meaning given by section 82A; and

2 Section 4

Insert:

Commonwealth agency

means a Minister or an authority of the

Commonwealth.

security clearance decision

means a decision to do any of the

following:

(a) grant a security clearance to a person;

(b) deny a security clearance in respect of a person;

respect of a person;

(d) suspend a security clearance, or revoke a suspension of a

security clearance, held by a person;

(e) revoke a security clearance held by a person.

Note:

See also subsection 82L(4) in relation to a decision of an internal

reviewer (within the meaning of Part IVA).

security clearance suitability assessment

means a statement in

writing that:

(a) is furnished by the Organisation; and

(b) is about a person's suitability to hold a security clearance

(with or without conditions imposed in respect of the security

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clearance) that has been, or may be, granted by another

security vetting agency; and

assessment for the purposes of paragraph 82C(1)(d).

3 Subsection 16(1) (note)

Omit "34AB", substitute "34AA, 34AB".

4 After subsection 16(1A)

Insert:

(1B) Subject to subsection (1C), the Director-General may, by writing,

delegate any or all of the Director-General's powers and functions

under subsection 82D(1) to a person who is an ASIO employee or

an ASIO affiliate.

Note:

Subsection 82D(1) provides that the Director-General may, on behalf

of the Organisation, exercise the powers or perform the functions of

the Organisation under Part IVA.

(1C) The Director-General may delegate the power or function under

subsection 82D(1) to:

(a) make a security clearance decision under

paragraph 82C(1)(b); or

(b) furnish a security clearance suitability assessment under

paragraph 82C(1)(d);

only 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 an Executive Level 1 position.

5 At the end of paragraphs 17(1)(a) and (b)

Add "and".

6 Paragraph 17(1)(c)

Omit "responsibilities.", substitute "responsibilities; and".

7 After paragraph 17(1)(ca)

Insert:

and (cb) to undertake security vetting and security clearance related

activities in accordance with Part IVA; and

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8 At the end of subsection 17(1)

Add:

Note:

The Organisation's function referred to in paragraph (cb) does not

limit the capacity of any other authority of the Commonwealth to

undertake the kinds of activities referred to in that paragraph.

9 Subsection 35(1) (definition of Commonwealth agency)

Repeal the definition.

10 At the end of Division 1 of Part IV

Add:

36A Part not to apply to security vetting and security clearance

related activities

(1) This Part (other than section 81) does not apply in relation to the

exercise of a power or the performance of a function under

Part IVA.

(2) To avoid doubt:

(a) a communication made, including a security clearance

suitability assessment furnished, by the Organisation in

connection with the performance of its function under

paragraph 17(1)(cb) is not a security assessment; and

(b) any decision made or not made, or action taken or not taken,

by a Commonwealth agency, a State or an authority of a

State, on the basis of a communication made by the

Organisation in connection with the performance of its

function under paragraph 17(1)(cb) is not prescribed

administrative action within the meaning of paragraph (a) of

the definition of

prescribed administrative action

subsection 35(1).

11 Subsection 81(3)

After "this Part" (wherever occurring), insert "or Part IVA".

12 After Part IV

Insert:

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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

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;

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(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

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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;

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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

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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 and

procedures 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) A

Commonwealth

security 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

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(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

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(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, or

revoke 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

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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

);

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;

(ii) in the case of a security clearance that has already been

granted--the affected person must agree to the

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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 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 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;

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(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;

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.

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(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).

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(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;

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.

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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;

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 assessment

in 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

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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

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

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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 prejudicial

security 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;

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(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

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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 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 (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:

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(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;

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.

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(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.

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(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;

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

independently reviewable decision

for the purposes of this

Division if the person:

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(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

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.

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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

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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:

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(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

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(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

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(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

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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.

13 Application provisions

(1)

Paragraph 82C(1)(a) of the

Australian Security Intelligence

Organisation Act 1979

, as inserted by this Division, applies in relation

to security vetting undertaken on or after the commencement of this

item, other than security vetting undertaken for the purposes of:

(a) a security clearance decision that was under consideration

immediately before the commencement of this item; or

(b) a security assessment commenced under Part IV of that Act

before the commencement of this item that had not been

furnished before that commencement.

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(2)

Paragraph 82C(1)(b) of the

Australian Security Intelligence

Organisation Act 1979

, as inserted by this Division:

(a) applies in relation to a security clearance decision made on or

after the commencement of this item in respect of a security

clearance, whether the security clearance was granted before,

on or after the commencement of this item; but

(b) does not apply in relation to a security clearance decision that

was under consideration immediately before the

commencement of this item.

(3)

Paragraph 82C(1)(c) of the

Australian Security Intelligence

Organisation Act 1979

, as inserted by this Division, applies in relation

to the ongoing security vetting and assessment, after the

commencement of this item, in respect of a security clearance whether

the security clearance was granted before, on or after the

commencement of this item.

(4)

Paragraph 82C(1)(d) of the

Australian Security Intelligence

Organisation Act 1979

, as inserted by this Division, applies in relation

to a security clearance suitability assessment furnished on or after the

commencement of this item in respect of a person, whether or not the

person held a security clearance before the commencement of this item.

(5)

Paragraph 82C(1)(e) of the

Australian Security Intelligence

Organisation Act 1979

, as inserted by this Division, applies in relation

to a communication, on or after the commencement of this item, in

respect of a security clearance whether the security clearance was

granted before, on or after the commencement of this item.

(6)

Paragraph 82C(1)(f) of the

Australian Security Intelligence

Organisation Act 1979

, as inserted by this Division, applies in relation

to a security clearance for which the Organisation assumes

responsibility on or after the commencement of this item, whether the

security clearance was granted before, on or after the commencement of

this item.

(7)

To avoid doubt, the

Australian Security Intelligence Organisation Act

1979

, as in force immediately before the commencement of this item,

continues to apply in relation to the following:

(a) a security assessment commenced under Part IV of that Act

before the commencement of this item that had not been

furnished before that commencement;

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(b) a security assessment furnished under that Part before the

commencement of this item;

security assessment mentioned in paragraph (a) or (b),

whether the communication was made before, on or after the

commencement of this item.

(8)

To avoid doubt, nothing in this Division affects the capacity of a

security vetting agency other than the Organisation to make a security

clearance decision on the basis of a security assessment mentioned in

paragraph (7)(a) or (b).

Division 2

--Amendments to other Acts

Administrative Appeals Tribunal Act 1975

14 Subsection 3(1)

Insert:

security clearance decision

has the same meaning as in the

Australian Security Intelligence Organisation Act 1979

security clearance suitability assessment

has the same meaning as

in the

Australian Security Intelligence Organisation Act 1979

security vetting agency

has the meaning given by section 82A of

the

Australian Security Intelligence Organisation Act 1979

sponsoring agency

, in relation to a security clearance, has the

meaning given by section 82A of the

Australian Security

Intelligence Organisation Act 1979

15 Paragraph 17B(2)(a)

After "section 54", insert "or 83B".

16 Subsection 19E(1)

Omit "subsection 65(2)", substitute "subsections 65(2) and 83F(6)".

17 Before subsection 27AA(1)

Insert:

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Applications under Part IV of the Australian Security Intelligence

Organisation Act 1979

18 At the end of section 27AA

Add:

Applications under Part IVA of the Australian Security Intelligence

Organisation Act 1979

(4) An application under subsection 83B(1) of the

Australian Security

Intelligence Organisation Act 1979

for review of a security

clearance decision or security clearance suitability assessment may

be made by a person in respect of whom the decision or suitability

assessment was made and who has, in accordance with Part IVA of

that Act, been given notice of the decision or suitability

assessment.

(5) An application under subsection 83B(2) of the

Australian Security

Intelligence Organisation Act 1979

for review of the findings of

the Tribunal on a review of a security clearance decision or

security clearance suitability assessment may be made by the

person who applied for the review in which the findings were

made.

(6) If the Tribunal is satisfied that an application referred to in

subsection (5) is justified, it may review its previous findings, and

this Act applies in relation to such a review and the findings in

such a review as if it were the review of a security clearance

decision or security clearance suitability assessment.

19 Paragraph 29(1)(ca)

After "subsection 54(1)", insert "or 83B(1)".

20 Paragraph 29(1)(ca)

After "security assessment", insert "or a security clearance suitability

assessment".

21 Subparagraphs 29(1)(ca)(i) and (ii)

After "assessment", insert "or suitability assessment".

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22 Paragraph 29(1)(cb)

After "subsection 54(2)", insert "or 83B(2)".

23 Section 29B (heading)

Omit "

--review

of security assessment

", substitute "

under

Australian Security Intelligence Organisation Act

24 Section 29B

Before "If an application", insert "(1)".

25 At the end of section 29B

Add:

(2) If an application is made to the Tribunal for a review of a security

clearance decision or security clearance suitability assessment, the

Registrar must give a copy of the application, and a copy of the

statement lodged with the application, to:

(a) the Director-General of Security; and

(b) for an application for review of a security clearance

decision--the sponsoring agency

for the security clearance in

relation to which the security clearance decision was made;

and

suitability assessment--the security vetting agency to which

the suitability assessment was given.

(3) If subsection (2) applies, the Registrar must also give the applicant

written notice of receipt of the application.

26 After subsection 38A(1)

Insert:

(1A) If an application for review of a security clearance suitability

assessment is made in a case in which the ASIO Minister has given

a certificate certifying in accordance with paragraph 83A(4)(b) of

the

Australian Security Intelligence Organisation Act 1979

, the

Director-General of Security must, as soon as practicable after

receiving notice of the application, lodge with the Tribunal:

(a) a copy of the certificate; and

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(b) a copy of the whole of the suitability assessment (including a

copy of the statement of grounds prepared for the security

clearance suitability assessment under section 82G of that

Act).

Note:

The statement of grounds for a security clearance suitability

assessment is taken to be part of the assessment (see

subsection 82G(3) of the

Australian Security Intelligence

Organisation Act 1979

(1B) If an application for review of a security clearance decision is

made, the Director-General of Security must, as soon as practicable

after receiving notice of the application, lodge with the Tribunal:

(a) a copy of the statement of grounds prepared for the security

clearance decision under section 83C of the

Australian

Security Intelligence Organisation Act 1979

; and

(b) in a case in which the ASIO Minister has given a certificate

certifying in accordance with subsection 83C(6) of that

Act--a copy of the certificate.

27 Subsection 38A(2)

After "subsection (1)", insert ", (1A) or (1B)".

28 After section 39A

Insert:

39BA Procedure in Security Division review of security clearance

decision or security clearance suitability assessment

Review of security clearance decision or security clearance

suitability assessment

(1) If an application for a review of a security clearance decision or

security clearance suitability assessment is made to the Tribunal,

the Tribunal is to review the decision or suitability assessment in

accordance with this section.

Parties

(2) The parties to the proceeding are the Director-General of Security

and the applicant, but each of the following bodies (the

relevant

body

) is entitled to adduce evidence and make submissions:

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(a) for a review of a security clearance decision--the sponsoring

agency

for the security clearance in relation to which the

security clearance decision was made;

(b) for a review of a security clearance suitability assessment--

the following:

(i) the security vetting agency to which the suitability

assessment was given;

(ii) the sponsoring agency for the security clearance in

relation to which the suitability assessment was given, if

that agency was also given the suitability assessment by

the Australian Security Intelligence Organisation.

Director-General of Security must present all relevant information

(3) It is the duty of the Director-General of Security to present to the

Tribunal all information available to the Director-General (whether

favourable or unfavourable to the applicant) that is relevant to the

findings made in the statement of grounds for the security

clearance decision or security clearance suitability assessment.

(4) Without limiting subsection (3), the Director-General of Security

may present to the Tribunal:

(a) 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 security clearance decision or security

clearance suitability assessment; or

(b) a copy of any standard (or part thereof) certified in writing by

the Director-General as a current standard relating to the

Commonwealth's highest level of security clearance.

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.

(5) To avoid doubt, the Director-General of Security may present to

the Tribunal both copies of a standard (or part thereof) referred to

in paragraphs (4)(a) and (b).

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Member may require parties to attend etc.

(6) A member who is to participate, or who is participating, in the

hearing may, at any time, require either or both of the parties to

attend or be represented before the member for the purpose of

conferring with the member concerning the conduct of the review

with a view to identifying the matters in issue or otherwise

facilitating the conduct of the proceedings.

Proceedings to be in private

(7) The proceedings are to be in private and, subject to this section, the

Tribunal is to determine which people may be present at any time.

Right of parties etc. to be present

(8) Subject to subsections (9) and (12), the applicant and a person

representing the applicant may be present when the Tribunal is

hearing submissions made or evidence adduced by the

Director-General of Security or the relevant body.

(9) The applicant and any person representing the applicant must not

be present when the Tribunal is hearing submissions made or

evidence adduced in relation to any part of a copy of any standard

presented to the Tribunal under subsection (4) that has not already

been disclosed to the applicant.

(10) The Director-General of Security or a person representing the

Director-General, and a person representing the relevant body, may

be present when the Tribunal is hearing submissions made or

evidence adduced by the applicant.

Security or defence certificate

(11) The ASIO Minister may, by signed writing, certify that evidence

proposed to be adduced or submissions proposed to be made by or

on behalf of the Director-General of Security or the relevant body

are of such a nature that the disclosure of the evidence or

submissions would be contrary to the public interest because it

would prejudice security or the defence of Australia.

(12) If such a certificate is given:

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(a) the applicant must not be present when the evidence is

adduced or the submissions are made; and

(b) a person representing the applicant must not be present when

the evidence is adduced or the submissions are made unless

the ASIO Minister consents.

(13) A person representing the applicant commits an offence if:

(a) the person is present when evidence to which a certificate

given under subsection (11) relates is adduced or submissions

to which such a certificate relates are made; and

(b) the person discloses any such evidence or submission to the

applicant or to any other person.

Note:

Subsection 4B(2) of the

Crimes Act 1914

allows a court to impose an

appropriate fine instead of, or in addition to, a term of imprisonment.

Penalty: Imprisonment for 2 years.

Protection of identity of person giving evidence

(14) If the Director-General of Security so requests, the Tribunal must

do all things necessary to ensure that the identity of a person giving

evidence on behalf of the Director-General of Security is not

revealed.

Evidence and submissions

(15) The Tribunal must first hear evidence adduced, and submissions

made, by or on behalf of the Director-General of Security and any

evidence or submissions that the relevant body may wish to adduce

or make.

(16) The Tribunal must next permit the applicant, if the applicant so

desires, to adduce evidence before, and make submissions to, the

Tribunal.

(17) The Tribunal may, on its own initiative and at any stage of the

proceeding, invite a person to give evidence or cause a person to be

summoned to give evidence.

(18) If a person invited or summoned to give evidence under

subsection (17) is:

(a) an ASIO employee or ASIO affiliate; or

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(b) an officer or employee of the relevant body;

subsection (11) applies as if any evidence to be given by the person

were evidence proposed to be adduced by or on behalf of the

Director-General of Security or the relevant body, as the case may

be.

(19) If:

(a) a party presents the party's case to the Tribunal; and

(b) after that case has been presented, the other party adduces

evidence; and

other party, the first-mentioned party should be further heard;

the Tribunal must give the first-mentioned party an opportunity of

adducing further evidence and submissions related to that further

evidence, but must not give to the applicant any particulars of any

evidence to which a certificate given under subsection (11) relates.

(20) A member of the Tribunal may ask questions of a witness before

the Tribunal and the presiding member may require a witness to

answer any such question.

Dismissal of application

(21) If the applicant fails within a reasonable time:

(a) to proceed with the application; or

(b) to comply with a direction by the Tribunal in relation to the

application;

the President or an authorised member may dismiss the application

without proceeding to review the security clearance decision or

security clearance suitability assessment.

Delegation

(22) The ASIO Minister may, by signed writing, delegate the ASIO

Minister's power under subsection (11) to 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.

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(23) In exercising a power under a delegation under subsection (22), the

delegate must comply with any written directions of the ASIO

Minister.

29 Section 39B (heading)

Omit "

Security Division review of security assessment

", substitute

certain Security Division reviews

30 Subsection 39B(10) (heading)

Omit "

subsection 38A(1)

", substitute "

section 38A

31 Subsection 39B(10)

After "subsection 38A(1)", insert ", (1A) or (1B)".

32 Subsection 39B(10)

After "subsection 38(2)", insert ", 83A(4) or 83C(6)".

33 Subsection 39B(10)

After "taken to be a certificate", insert "under subsection (2) of this

section".

34 At the end of section 39B

Add:

(12) The ASIO Minister may, by signed writing, delegate the ASIO

Minister's power under subsection (2), to the extent it applies in

relation to review of a security clearance decision or security

clearance suitability assessment, to 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.

(13) In exercising a power under a delegation under subsection (12), the

delegate must comply with any written directions of the ASIO

Minister.

35 At the end of Division 4 of Part IV

Add:

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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):

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(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;

(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

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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.

36 Subsection 43(1A)

Omit "section 43AAA and to subsection 65(3)", substitute

"sections 43AAA and 43AAB and subsections 65(3) and 83F(7)".

37 After subsection 43(1)

Insert:

(1AA) However, if the decision being reviewed is a security clearance

decision, the only decisions that the Tribunal may make under

subsection (1) are the following:

(a) to affirm the decision under review;

(b) to set aside the decision under review and remit the matter

for reconsideration in accordance with any directions or

recommendations of the Tribunal.

38 At the end of subsection 43AAA(1)

Add "of a security assessment".

39 After section 43AAA

Insert:

43AAB Findings of Tribunal in Security Division review of security

clearance decision or security clearance suitability

assessment

Scope

(1) This section applies to a review in the Security Division of a

security clearance decision or security clearance suitability

assessment.

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Findings

(2) Upon the conclusion of a review, the Tribunal must make and

record its findings in relation to the security clearance decision or

security clearance suitability assessment, and those findings may

state the opinion of the Tribunal as to the correctness of, or

justification for any recommendation, opinion, advice or

information contained in the decision or suitability assessment.

(3) The Tribunal must not make findings in relation to a security

clearance decision or security clearance suitability assessment that

would, under subsection 83D(1) of the

Australian Security

Intelligence Organisation Act 1979

, have the effect of superseding

any information that is, under section 82G or 83C of that Act,

taken to be part of the decision or suitability assessment unless

those findings state that, in the Tribunal's opinion, the information

is incorrect, is incorrectly represented or could not reasonably be

relevant to the requirements of security.

Copies of findings to be given to parties etc.

(4) Subject to subsection (5), the Tribunal must cause copies of its

findings to be given to the applicant, the Director-General of

Security, the ASIO Minister and the following body (the

relevant

body

(a) for findings in relation to a security clearance decision--the

sponsoring agency

for the security clearance in relation to

which the security clearance decision was made;

(b) for findings in relation to a security clearance suitability

assessment--the security vetting agency to which the

suitability assessment was given.

(5) The Tribunal may direct that the whole or a particular part of its

findings, so far as they relate to a matter that has not already been

disclosed to the applicant, is not to be given to the applicant or is

not to be given to the relevant body.

Applicant may publish findings

(6) Subject to any direction by the Tribunal, the applicant is entitled to

publish, in any manner that the applicant thinks fit, the findings of

the Tribunal so far as they have been given to the applicant.

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Tribunal may attach comments to findings

(7) The Tribunal may attach to a copy of findings to be given to the

Director-General under this section any comments the Tribunal

wishes to make on matters relating to procedures or practices of the

Australian Security Intelligence Organisation that have come to the

Tribunal's attention as a result of a review.

(8) The Tribunal must give the Minister a copy of any comments

attached as mentioned in subsection (7).

40 At the end of subsection 46(2)

Add:

Note:

Subsection 39B(10) of this Act deems certain certificates referred to in

that subsection to be certificates under subsection 39B(2).

41 After subsection 46(3)

Insert:

(3A) If the Federal Court of Australia or the Federal Circuit and Family

Court of Australia (Division 2) is sent:

(a) a copy of any standard (or part thereof) referred to in

subsection 39C(2) of this Act; or

(b) a document containing any sensitive information referred to

in subsection 39C(4);

the relevant court must, subject to this section, do all things

necessary to ensure that the copy of any standard (or part thereof)

or any information contained in it, or the sensitive information, is

not disclosed to any person other than:

(a) a member of the court as constituted for the purposes of the

proceeding; or

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

representative.

(3B) However, subsection (3A) does not apply in relation to disclosure

to the person who was the applicant, or a person representing the

person who was the applicant, in the proceedings before the

Tribunal to the extent that the information:

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

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(b) is disclosed to the person with the consent of the

Director-General of Security.

42 Section 69B (heading)

Omit "

Security Division review of security assessment

", substitute

certain Security Division reviews

43 Paragraph 69B(1)(a)

Repeal the paragraph, substitute:

(a) a person makes an application under section 54 or 83B of the

Australian Security Intelligence Organisation Act 1979

to the

Tribunal for a review of a security assessment, security

clearance decision or security clearance suitability

assessment in respect of the person; and

44 Amendments of listed provisions

--section 39BA

Omit "section 39A" and substitute "section 39A or 39BA" in the

following provisions:

(a) subsections 30(1AA), 30A(1AA), 31(2) and 33A(2);

(b) section 34;

36B(1AA), 36C(1AA), 36D(1AA), 37(1AAA) and 38(2);

(d) paragraph 39(2)(a);

(e) subsection 39B(1).

Office of National Intelligence Act 2018

45 Section 3

After "carrying out evaluations,", insert "providing quality assurance

and advice in relation to the Commonwealth's highest level of security

clearances,".

46 After paragraph 7(1)(b)

Insert:

(ba) to:

(i) provide quality assurance, reporting and advice to

support the consistency and transferability of the highest

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level of security clearances issued by the

Commonwealth; and

(ii) assist the Commonwealth authorities that sponsor those

security clearances to establish and maintain those

authorities' capability to prevent and detect insider

threats;

47 After subsection 10(2)

Insert:

(2A) Paragraphs (2)(b) and (d) do not prevent ONI from performing its

function under paragraph 7(1)(ba).

48 At the end of section 39

Add:

(3) For the purpose of ONI performing its function under

paragraph 7(1)(ba), any Commonwealth authority may provide to

ONI information, documents or things that relate, or may relate, to

that function, even if doing so would not otherwise fall within the

Commonwealth authority's statutory functions.

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