Key points
- The Australian Security Intelligence Organisation Bill 2023 (the Bill) provides the Australian Security Intelligence Organisation (ASIO) with a new security vetting and clearance related function for both ASIO and non-ASIO personnel seeking to hold, or currently holding, a security clearance.
- The Government has stated that the amendments will enable ASIO to be centrally responsible for the issue and maintenance of a new security clearance—the TOP SECRET-Privileged Access (TS-PA) security clearance—which over time will replace the existing Positive Vetting security clearance.
- Since the centralisation of security clearances within the Australian Government Security Vetting Agency (AGSVA) in 2010, there have been continued concerns raised about the efficiency of the current security vetting process. There have also been more recent concerns reported around the capacity of existing processes to deal with the number of clearances needed to support key Defence projects, such as the AUKUS Nuclear-Powered Submarine Pathway.
- The Bill will also introduce a new review framework for internal and external merits review of ASIO security assessments and security clearance decisions.
- With respect to external merits review of a security clearance decision, the Bill provides for different pathways for review rights depending on whether the person is an existing clearance holder (in which case the Administrative Appeals Tribunal will review the decision) or a new applicant (in which case an independent reviewer appointed by the Attorney-General will review the decision).
Introductory Info
Date introduced: 29 March 2023
House: House of Representatives
Portfolio: Home Affairs
Commencement: 1 July 2023
Purpose of
the Bill
The main purpose of the Australian
Security Intelligence Organisation Bill 2023 (the Bill) is to amend the Australian Security
Intelligence Organisation Act 1979 and the Administrative
Appeals Tribunal Act 1975 to:
- provide
the Australian Security Intelligence
Organisation (ASIO) with a new security vetting and clearance related
function for both ASIO and non-ASIO personnel seeking to hold, or currently
holding, a security clearance
- enable
the exchange of information between ASIO and other agencies in relation to the
ongoing suitability of a person to hold a security clearance and
- introduce
a new review framework for reviewing ASIO security assessments and security clearance
decisions.
The Bill will also amend the Office of National
Intelligence Act 2018 to expand its current functions with respect to
the highest level of Commonwealth security clearances and make minor amendments
to the Inspector-General
of Intelligence and Security Act 1986.
Background
Purpose of
security clearances
Under the Australian Government’s Protective Security Policy
Framework (PSPF), Australian Government employees and contractors require a
security clearance to access classified resources, which can relate to
Australia’s national security, economic and other interests.[1]
Security vetting involves the assessment of an
individual’s suitability to hold a security clearance at a particular level. There
are currently four levels of security clearances that allow personnel to access
associated levels of classified resources, as set out at Table 1.
Table 1: Current
security clearance levels
| Clearance Level |
Level of ongoing access permitted |
Level of conditional access |
| Baseline |
Classified resources up to and including PROTECTED |
|
| Negative Vetting Level 1 (NV1) |
Classified resources up and including SECRET |
NV1 security clearance holders can be provided with
temporary access to TOP SECRET classified resources in certain circumstances. |
| Negative Vetting Level 2 (NV2) |
Classified resources up to and including TOP SECRET |
An NV2 security clearance will be sufficient for most
roles requiring intermittent access to TOP SECRET classified resources. |
| Positive Vetting (PV) |
Classified resources up to and including TOP SECRET,
including some caveated information |
PV clearances should only be sought where there is a
demonstrated need to access extremely sensitive information, capabilities,
operations and systems. Entities should first consider whether an NV2
clearance would meet the position’s requirement for a security
clearance. |
Source: ‘Security
clearances – Overview’, Department of Defence.
During a security clearance assessment, a clearance
subject needs to establish confidence that they possess a sound and stable
character, and that they are not unduly vulnerable to influence or coercion.
The PSPF
requires that any doubt regarding an individual’s suitability to hold a
security clearance be resolved in the national interest.[2]
Current
process for security vetting
Prior to September 2010, Australian Government entities
managed their own security vetting for employees.[3]
In October 2010, the Government established the Australian
Government Security Vetting Agency (AGSVA) within the Department of Defence
(Defence), to centrally administer personnel security clearances on behalf of
Australian Government entities.
According to an Australian
National Audit Office Report into AGSVA’s operations published in 2015, ‘most
government entities must use AGSVA’s security vetting service for personnel
that require a clearance’.[4]
These agencies are referred to as ‘sponsoring agencies’. However, ASIO has
stated there are currently five separate vetting agencies authorised to grant
PV security clearances— AGSVA, ASIO, the Office for National Intelligence
(ONI), the Australian Secret Intelligence Service (ASIS) and the Australian
Federal Police (AFP).[5]
AGSVA charges government entities (other than Defence) on
a fee-for-service basis for each clearance request.[6]
Figure 1 sets out the current security vetting process undertaken by
AGSVA.
Figure 1: Overview of AGSVA’s security clearance process
Source: Australian National Audit Office (ANAO), Central
Administration of Security Vetting, Audit Report, 45, 2015–16,
(Canberra: ANAO, 2015), para. 5.
ASIO performs an integral role in processing NV1, NV2 and
PV clearances, which require an ASIO
security assessment as part of the minimum personnel checks (both for AGSVA
and other agencies).[7]
In making the assessment, ASIO reviews any intelligence it may hold, as well as
considering known security risk factors.[8]
According to the 2015 ANAO Report:
AGSVA routinely provides ASIO with information collected
during the course of the vetting assessment process to inform the ASIO security
assessment. However, there has been a history of disagreement between AGSVA and
ASIO about aspects of the process, such as when ASIO should commence the
security assessment, and the amount and quality of information provided by
AGSVA to ASIO.[9]
The ANAO Report further noted that in early 2015, AGSVA
and ASIO agreed that ASIO would commence its security assessment of individuals
following the completion of AGSVA’s vetting assessment:
This agreement means that ASIO has access to all the
information collected during the vetting assessment process, and resolved one
of the areas of disagreement between the two organisations. However, as at
March 2015, a formal Protocol covering the full scope of AGSVA and ASIO
interactions remained the subject of ongoing negotiations between AGSVA and
ASIO. The finalisation of the formal arrangement would help clarify mutual
expectations and responsibilities, and contribute to both organisations
fulfilling their role in the management of security vetting.[10]
Individuals granted a security clearance are also subject
to ongoing review to ensure they are still suitable to maintain a clearance:
A security clearance represents an assessment of risk factors
based on information provided by the clearance subject at the time of
assessment. As a clearance holder’s risk profile may change over time, ongoing
review of a clearance holder’s eligibility and suitability is required.
Clearance maintenance is a responsibility shared by the clearance holder, the
sponsoring entity and AGSVA. Clearance holders, sponsor entities or third
parties may report relevant changes in personal circumstances to AGSVA. AGSVA
responds to changes of circumstance, and conducts periodic reviews of security
clearances and reviews for cause.[11]
Concerns
about the current security vetting process
Since the move to AGSVA in 2010, there have been continued
concerns raised about the efficiency of the current security vetting process,
with the ANAO concluding in 2015:
Overall, the performance of the centralised vetting system
established in October 2010 has been mixed, and key Australian Government
expectations relating to improved efficiency and cost savings have not been
realised. AGSVA was not ready to effectively provide whole-of-government
vetting services in 2010 due to inadequate implementation planning, risk
management and resourcing. While Defence has made progress since 2012 in its
implementation of centralised vetting—by strengthening the management of vetting
work, documenting its vetting procedures and applying additional human
resources—AGSVA continues to fall well short of fully meeting its vetting
responsibilities in a timely manner, and anticipated savings have been eroded.[12]
The 2017
Independent Intelligence Review conducted by the Department of the Prime
Minister and Cabinet noted:
… the impact AGSVA’s processing times for PV clearances were
having on the intelligence community workforce. It recommended the situation be
reviewed again in early 2018, to allow time for the remediation program to have
effect, and that alternative options, such as shifting responsibility for PV
clearances to ASIO or allowing non-exempt intelligence agencies to conduct
their own PV clearances, should be considered if processing times still
exceeded six months.[13]
In 2018, following an audit assessing the effectiveness of
the Australian Government’s personnel security arrangements for mitigating
insider threats, the
ANAO reported that ‘AGSVA’s security vetting services do not effectively
mitigate the Government’s exposure to insider threats’.[14]
In particular, the ANAO noted the following concerns about the current process:
AGSVA collects and analyses information regarding personnel
security risks, but does not communicate risk information to entities outside
the Department of Defence or use clearance maintenance requirements to minimise
risk. Since the previous ANAO audit, AGSVA’s average timeframe for completing
Positive Vetting (PV) clearances has increased significantly. AGSVA has a
program in place to remediate its PV timeframes, and it has established a
comprehensive internal quality framework. AGSVA plans to realise many process
improvements through procuring a new information and communications technology
(ICT) system, which is expected to be fully operational in 2023.[15]
It was reported in March 2023 that Defence was facing ’a
massive backlog‘ for vetting new employees, as a result of ‘a new IT system
designed to improve vetting, known as MyClearance, which has been beset by
difficulties since being introduced at the end of November 2022’.[16] The MyClearance system was also reported to be
incompatible with the systems used by ASIO.[17]
AGSVA’s median processing time for positive vetting
clearance is currently 180 business days from the point at which AGSVA receives
a fully completed vetting pack, including supporting documentation, from the
clearance subject.[18]
However, it has been reported that currently security clearance wait times are
‘stretching well beyond a year’.[19]
ASIO has also noted that the ability of different agencies
to authorise PV clearance has ‘resulted in different applications of policy and
standards aligned to individual missions and requirements rather than a
consistent and coordinated approach to PV security vetting’, which has resulted
in delays in transferring clearances across agencies.[20]
It has also been reported that ‘the level of pressure mounting on Australia’s
vetting organisations is clearly reaching unsustainable levels’ with concerns
raised about the ability of the current processes to cope with the number of
clearances needed to support the AUKUS Nuclear-Powered
Submarine Pathway.[21]
Changes to
the positive security vetting process
According to ASIO, ‘on 1 July 2020 a multi-agency Future
Positive Vetting Capability Taskforce was established to modernise whole-of-government
vetting standards to enable increased consistency, heightened assurance and
transferability of Australia’s highest-cleared workforce’.[22]
In November 2021, the Attorney-General’s Department (AGD)
announced that changes had been made to the PSPF policy to give effect to the
TOP SECRET-Privileged Access Standard (TS-PA) and enable authorised vetting
agencies to issue TS-PA clearances.[23]
According to AGD, ‘the TOP SECRET-Privileged Access clearances will eventually
replace the existing Positive Vetting clearances after a phased transition’.[24]
As part of these changes, the Quality Assurance Office (QAO) was established
within ONI ‘to independently assess the quality, consistency, and
transferability of the TOP SECRET-Privileged Access (TS-PA) security
clearances’.[25]
In her second reading speech on the Bill, the Minister for
Home Affairs (the Minister), Claire O’Neil, stated that TS-PA Standard ‘establishes
stronger mandatory minimum security clearance requirements reflecting
contemporary psychological and insider threat research’.[26]
Committee
consideration
Parliamentary
Joint Committee on Intelligence and Security
On 29 March 2023, the Minister wrote to the Parliamentary
Joint Committee on Intelligence and Security (PJCIS) referring the Bill for
the Committee’s review.[27]
Mr Peter Khalil MP, Chair of the PJCIS, stated:
Reviewing important national security legislation that,
through the high-level access security clearances provide, will affect
Australia’s National Security architecture is a key part of the Parliamentary
oversight work of the PJCIS. The review will provide assurance that these
changes provide a security framework that will last well into the future.[28]
Information about the inquiry, including submissions
received by stakeholders, can be accessed via the PJCIS’s
website.
Senate
Standing Committee for the Scrutiny of Bills
The Committee has not reported on the Bill at the time of
writing.
Policy
position of non-government parties/independents
It appears that there has been no public comment about the
position of non-government parties or independents.
Position of
major interest groups
At the time of writing, there does not appear to be any
stakeholder commentary about the Bill.
Financial
implications
The Explanatory Memorandum states that ‘No financial
impact is expected during the initial operation phase of the National TS-PA Capability
to 30 June 2025’ and that ‘Future financial impacts would be a matter for the
Government.’[29]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act.[30]
The Government advises that the Bill engages the following
human rights:
The Government considers that the Bill is compatible
because any limitations on human rights are reasonable, necessary and
proportionate to achieve the Bill’s objectives.
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (PJCHR) has
not reported on the Bill at the time of writing.
Key issues
and provisions
New
clearance function for ASIO and changes to information sharing arrangements
The most
significant amendments in the Bill relate to changes to the Australian Security
Intelligence Organisation Act 1979 (ASIO Act) to provide for the
new security vetting and clearance function for ASIO.
As discussed above, under Part IV of the ASIO Act,
ASIO may currently contribute to the security clearance vetting process
conducted by AGSVA and other agencies by conducting security assessments and
may make security clearance decisions for its own staff. However, ASIO’s
current functions (as set out in section 17) do not extend to making security
clearance decisions in relation to security clearances sponsored by other
agencies.
Item 7 of the Bill will insert proposed paragraph
17(1)(cb) which will expand ASIO’s functions to include ‘to undertake
security vetting and security clearance related activities in accordance with
Part IVA’.
Item 12 of the Bill will insert proposed Part
IVA containing the key provisions which will give effect to ASIO’s new
security vetting and clearance activities. For example, proposed subsection
82C(1) provides that the Director-General of ASIO or their delegate may do
any of the following:
- undertake
security vetting to assess a person’s suitability to hold a security clearance
- make
security clearance decisions[31]
- undertake
ongoing security vetting and assessment of a person’s suitability to continue
to hold a security clearance that has been granted, or is taken under proposed
paragraph 82C(2)(a) to have been granted, by ASIO
- furnish
a security clearance suitability assessment in respect of a
person
- • communicate
with a sponsoring agency for a security clearance in relation to the ongoing
suitability of a person to hold the security clearance
- assume
responsibility for a security clearance that has been granted to a person by
another security vetting agency
- do
anything incidental to a thing mentioned above.
A security clearance suitability assessment
(SCSA) is defined as meaning a statement in writing that:
- is
furnished by the ASIO; and
- is
about a person’s suitability to hold a security clearance (with or without
conditions imposed in respect of the security clearance) that has been, or may
be, granted by another security vetting agency; and
- expressly
states it is a SCSA.[32]
Where a SCSA contains information that would or could be
prejudicial to a security clearance decision with respect to a person it is
referred to as a prejudicial security clearance suitability assessment
(PSCSA).[33]
Proposed section 82E would prevent Commonwealth
security vetting agencies from making a security clearance decision based on
information received from ASIO unless that information constitutes a SCSA. However,
this would not prevent an agency from temporarily making a decision to suspend,
revoke a suspension, or impose or vary conditions on the person’s security
clearance pending the provision of the SCSA from ASIO where it is a matter of
urgency. This provision would also not prevent ASIO from communicating
information to other agencies about a security clearance holder or prevent
agencies from taking action on the basis of that information, provided it does
not amount to a security clearance decision. Similarly, proposed section 82F
restricts the circumstances where ASIO can communicate information to a state (or
territory) security vetting agency.
Proposed section 36A, inserted by item 10 of
the Bill, would also disapply the operation of Part IV of the ASIO Act
(except for section 81), to the extent it relates to the exercise or
performance of a power or function under Part IVA. Part IV of the ASIO Act
currently prohibits Commonwealth agencies from taking permanent prescribed
administrative action on the basis of ASIO advice, unless that advice is a
security assessment (section 39 of the ASIO Act). To avoid doubt, proposed
section 36A specifically provides that a SCSA furnished by ASIO in
performing its functions under proposed paragraph 17(1)(cb) is not a
security assessment for the purposes of Part IV. According to ASIO, the current
prohibition in Part IV ‘impedes ASIO’s ability to share clearance suitability
information with sponsors early, and often’, leading to risks accumulating.[34]
In extreme cases, this may ‘result in a clearance subject being found no longer
suitable only after a significant risk has materialised’.[35]
Note that ASIO also has broad powers under existing Part IV
to conduct security assessments in other circumstances (for example, relating
to the issuing of visas or passports) which will not be impacted by the
provisions in the Bill.
New review
framework for ASIO assessments and decisions
Other significant amendments in proposed Part IVA relate
to the new framework for reviewing SCSAs and security clearance decisions.
Under the current Commonwealth security clearance
framework, ‘there are no statutory rights to seek internal or external merits
review of security clearance decisions made by authorised vetting agencies’.[36]
As explained by ASIO in its submission to the PJCIS:
There are limited rights in Part IV of the ASIO Act for
certain persons to seek review of adverse or qualified security assessments
that may be used by vetting agencies to inform their security clearance
decisions, but these do not apply to staff members of ASIO, ASIS, ONI, the
Australian Signals Directorate (ASD), the Australian Geospatial-Intelligence
Organisation (AGO) or the Defence Intelligence Organisation (DIO).[37]
Proposed Part IVA, Division 3 will introduce a new
internal review, independent review and external merits review framework for
security clearance subjects the subject of:
- a
prejudicial security clearance decision (that is a decision to deny, revoke or
impose/vary conditions on a security clearance) or
- a
PSCSA (that is an assessment that contains information or advice about a person
that would or could be prejudicial to a security clearance decision).[38]
Internal
merits review
Proposed Subdivision A of
Division 3 of Part IVA provides for an internal merits review
framework that would enable review of prejudicial ASIO security clearance decisions
by an alternate delegate within ASIO. However, this framework does not apply to
a decision about a non-citizen or a person not normally resident in Australia and
who is seeking the clearance for work offshore.[39]
ASIO would be required to notify a person and the
sponsoring agency where a prejudicial security clearance decision has been made
with respect to them, as well as notifying of the internal reviewer’s decision
and reasons for the decision.[40]
The internal delegate may affirm, vary or set aside the original decision (and
if the decision is set aside the delegate may make another decision relating to
the person’s security clearance).[41]
External merits review
With respect to external merits review of a decision, Division 3 of Part IVA of the Bill
provides for two different pathways:
- where
the person is an existing clearance holder or Commonwealth employee the
Administrative Appeals Tribunal (AAT)[42]
will review the decision (proposed Subdivision B)
- where
the person is a new applicant, an independent reviewer appointed by the
Attorney-General will review the decision (proposed Subdivision C).
Article 26 of the ICCPR provides that all persons
are equal before the law and are entitled without any discrimination to the
protection of the law. It is also considered to be one of the key components of
the rule
of law.
While noting that the different treatment provided to
existing clearance holders/Commonwealth employees versus new employees engages
the right to equality and non-discrimination, the Government argues that this limitation
is necessary, reasonable and proportionate to achieve the objective of
protecting Australia’s national security.[43]
The Department
of Home Affairs (DHA) has stated that:
This is a narrow carve out of a small class of individuals
that will have access to independent review rather than external merits review
in the AAT, and will primarily relate to TS-PA security clearances given ASIO’s
role as the National TS-PA Authority.[44]
ASIO argues that this distinction is necessary to prevent
hostile foreign powers and their proxies (FPPs) from attempting to ‘game the
system’ and ‘infiltrate Australian Government agencies’ by applying for
security clearances.[45]
In particular, ASIO states that this distinction:
… recognises that the threat of espionage and foreign
interference is higher for new applicants who have not yet participated in
security awareness training and who have only a rudimentary understanding of
security obligations, and who are therefore less able to manage the threats
posed by hostile FPPs or who are more susceptible to being duped or exploited
by an FPP. New applicants also bring a lower level of assurance as they do not
have existing track records as Commonwealth employees.[46]
However, a key aspect of whether a limitation on a right
can be justified is whether the limitation is proportionate to the objective
being sought. As noted by the PJCHR, ‘even if the objective is of sufficient
importance and the measures in question are rationally connected to the
objective, the limitation may still not be justified because of the severity of
its impact on individuals or groups’.[47]
With respect to judicial review, the Explanatory
Memorandum provides:
All security clearance applicants would continue to have
rights to seek judicial review of a security clearance decision made or a SCSA
furnished by ASIO, in the Federal Court of Australia under section 39B of
the Judiciary Act 1903, or the High Court of Australia under
section 75(v) of the Constitution.[48]
The Explanatory Memorandum also states that ‘ASIO would
continue to be overseen by the Inspector-General of Intelligence and Security
(IGIS), which reviews ASIO’s activities to ensure it acts legally and with
propriety, complies with ministerial guidelines and directives and respects
human rights’.[49]
However, as noted by IGIS in its submission to the PJCIS, ‘IGIS is not a merits
review body, nor does it make binding decisions’.[50]
Process for
existing clearance holders/Commonwealth employees
Proposed Subdivision B of Division
3 of Part IVA amends the ASIO Act to provide for an external
merits review framework that would apply in respect of security clearance decisions
that continue to be prejudicial after internal merits review and in respect of
decisions relating to a PSCSA (except decisions about a non-citizen or a person
not normally resident in Australia and who is seeking the clearance for work
offshore). However, as noted above, this framework will only apply to
decisions relating to existing security clearance holders and Commonwealth
employees.[51]
Reviews will be conducted by the Security
Division of the AAT.
Where an affected person applies to the AAT for external
merits review of a prejudicial security clearance decision made by ASIO, the
Director-General or their delegate must:
- prepare
a statement of grounds for the security clearance decision which must contain
all information relied on by ASIO in making the decision and
- provide
the affected person with a copy of the statement of grounds as soon as
practicable.[52]
Where the statement of grounds relates to a decision in
respect of the Commonwealth’s highest level of security clearance, the
Director-General or their delegate must withhold certain types of information
that would be prejudicial to security or contrary to the public interest.[53]
The Minister may also issue a certificate certifying that disclosure of the
statement of grounds to the affected person would be prejudicial to the
interests of security and must therefore not be disclosed.[54]
Where ASIO makes a PSCSA, it must also prepare a statement
of grounds containing all the information it has relied on in making the PSCSA
unless the Director-General or their delegate is of the opinion the information
would be prejudicial to security.[55]
However, if ASIO furnishes a PSCSA to another security vetting agency, the
security vetting agency is required to provide notice of the assessment and a
copy of the assessment (including the statement of grounds) to the affected
person within 14 days.[56]
With respect to PSCSAs, the Minister may issue a non-disclosure
certificate where the Minister is satisfied:
- withholding
notice of the PSCSA with respect to the affected person is essential to the security
of the nation, or
- disclosing
the statement of grounds to the affected person would be prejudicial to the
interests of security.[57]
However, the Minister must consider whether to revoke a
certificate 12 months after the certificate to withhold notice is given and every
12 months after the Minister last considered whether to revoke it.[58]
DHA has explained why an affected person will be provided earlier
access to a statement of grounds with respect to a PSCSA but not a prejudicial
security clearance decision:
The reason why the subject of a prejudicial security
clearance decision will only receive a statement of grounds after they make an
application to the AAT for external review as opposed to when the reviewable
security clearance decision is because, unlike PSCSAs, an affected person of a
prejudicial security clearance decision will get access to internal merits
review and a statement of reasons to assist them understand the decision that
was made and enable them to determine whether to pursue external merits review.
Contrary, individuals the subject of a PSCSA do not have access to internal
merits review so it is appropriate they are provided the statement of grounds
earlier to assist them in making an informed decision as to whether to pursue
external review.[59]
The Minister may also, in exceptional circumstances, limit
a person’s access to have a security clearance decision or SCSA reviewed by the
AAT where the Minister believes it would be prejudicial to security through the
issuing of a conclusive certificate.[60]
DHA has provided some context on the background to this exception in its
submission to the PJCIS:
The high threshold of “exceptional circumstance” is
appropriate and provides a mechanism for the Minister, subject to their
discretion and advice from ASIO, to address prejudice to security in scenarios
where the foreign intelligence threat is extreme, or where the circumstances
involved are so serious that it would not be in Australia’s national interests
to undertake external merits review. For example, this could include scenarios
where ASIO discovers through its sophisticated capabilities that a person or
organisation is seeking to probe into or collect information on ASIOs security
clearance framework, or its capabilities more generally.[61]
Division 2 of Part 1, Schedule 1 of the Bill will amend
the Administrative
Appeals Tribunal Act 1975 (AAT Act) to provide for this new
pathway for review. The amendments provide for specific procedures the AAT/ASIO
must follow in conducting merits review of a security clearance decision or
SCSA, including:
- the
Director-General or their delegate must present all relevant information to the
AAT[62]
- the
proceedings are to be in private, with the AAT to determine which people may be
present (with specific limitations on when the applicant/person representing
the applicant may be present)[63]
and
- the
AAT must first hear evidence from ASIO before hearing evidence from the
applicant (where the applicant desires to give evidence).[64]
The Minister may certify that certain evidence proposed to
be introduced by ASIO should not be disclosed to the applicant or their
representative where the evidence would prejudice the security or defence of
Australia.[65]
Where the Minister has consented to the applicant’s representative being
present when such evidence is adduced, it is an offence (with a maximum penalty
of two years imprisonment) if the applicant’s representative then discloses the
evidence to the applicant (or any other person).[66]
Furthermore, the Director-General may also present to the
AAT:
- a
copy of any standard (or part of any standard) 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 SCSA
or
- a
copy of any standard (or part of any standard) certified in writing by the
Director-General as the current standard relating to the Commonwealth’s highest
level of security clearance.[67]
Where the Director-General has presented any of the above
documents to the AAT, the AAT must do all things necessary to ensure the
documents are not disclosed to an applicant, their representative or any person
other than an AAT member for the purposes of the proceeding, or the
Director-General or a representative of the Director-General.[68]
The AAT has a similar obligations with respect to sensitive information
certified by the Director-General as being information that would be contrary
to the public interest.[69]
However, the AAT may disclose this information where the information has
already been lawfully disclosed to the applicant or is disclosed to the
applicant with the consent of the Director-General.[70]
In reviewing a security clearance decision, the AAT will only
have the power to affirm a decision or remit the decision back to ASIO for reconsideration
(though the AAT may also make findings that are binding upon ASIO).[71]
As explained by DHA:
The AAT can make findings that are binding if, in the AAT’s
opinion, the information relied upon in making the original decision was
incorrect, was incorrectly represented or could not reasonably be relevant to
the requirements of security. Commonwealth agencies, States or authorities of a
State must treat the findings of the AAT with regard to an SCSA or security
clearance decision, to the extent that they do not confirm a security clearance
decision or SCSA, as superseding the original decision or assessment. ASIO
cannot make any further decisions or assessments in respect of an affected
person that are not in accordance with the AAT’s findings, except on the basis
of matters occurring after the review or where evidence was not available at
the time of the review.[72]
Process for
new applicants
Proposed Subdivision C of Division 3 of Part
IVA (which item 12 inserts into the ASIO Act), also provides
for an external merits review framework that would apply in respect of security
clearance decisions that continue to be prejudicial after internal merits
review (except decisions about a non-citizen or a person not normally resident
in Australia and who is to be employed offshore). This framework will apply to anyone
who does not hold an existing security clearance or who is not a
Commonwealth employee.
Instead of the review being conducted by the AAT, it will be
conducted by an independent reviewer appointed by the Attorney-General. The
Bill does not provide for a specific set of qualifications that the independent
reviewer must possess but rather that the Attorney-General must be satisfied
that they have the appropriate skills and qualifications to perform the role
and hold the highest level of security clearance.[73]
The independent reviewer cannot be a current or former ASIO employee or
affiliate.[74]
The independent reviewer must consider whether the
relevant decision was reasonably open to have been made and provide a report to
the Director-General of ASIO who must then decide what action to take,
including whether to issue a new security clearance decision.[75]
The independent reviewer must also provide a copy of this opinion to the
Inspector-General of Intelligence and Security.[76]
The Bill does not stipulate criteria that the independent
reviewer must consider when deciding whether or not to conduct a review. DHA
states that this is ‘in order to provide them with complete discretion in
determining the merit in undertaking a review on a case-by-case basis’ and ‘will
allow an independent reviewer to consider a wide range of factors when
determining whether to undertake a review’.[77]
Reference
of certain matters to the AAT by the Attorney-General
Proposed section 83F will introduce a new safeguard
whereby the Attorney-General can, if they are satisfied that it is desirable to
do so by reason of special circumstances:
- require
the AAT to inquire into and report to the Attorney-General and the Minister on
any question concerning the furnishing of a SCSA or the making of a security
clearance decision by ASIO or
- to
review such an assessment or such a decision along with any information or
matter on which it is based.
DHA notes that ‘this mechanism allows the Attorney-General
to seek independent advice regarding the appropriateness of an ASIO security
clearance decision or SCSA that would not otherwise be subject to external
merits review in the AAT where special circumstances are considered to exist.’[78]
New
function for ONI
ONI’s functions currently include leading the National
Intelligence Community, carrying out evaluations, preparing assessments and
reports and otherwise providing advice to the Prime Minister on matters
relating to the National Intelligence Community.
Item 46 of the Bill will amend the Office of National
Intelligence Act 2018 (ONI Act) to expand its current functions to
include:
- providing
quality assurance, reporting and advice to support the consistency and
transferability of the highest level of security clearances issued by the
Commonwealth and
- assisting
the Commonwealth authorities that sponsor those security clearances to
establish and maintain those authorities’ capability to prevent and detect
insider threats.[79]
The Bill would ensure that certain existing limitations in
the ONI Act do not preclude ONI from undertaking these new functions and
that Commonwealth authorities are not precluded from providing ONI with
information, documents or things that relate to these functions.[80]
According to ONI, the purpose of these amendments is:
… to enable the Quality Assurance Office (QAO) in ONI to
independently assess the quality, consistency, and transferability of the TOP
SECRET-Privileged Access (TS-PA) security clearances, and drive the uplift of
the insider threat capability of government agencies that sponsor these
clearances.[81]
As with the amendments to the ASIO Act and AAT
Act, the amendments to the ONI Act refer to the ‘highest level of
security clearances issued by the Commonwealth’. According to ONI, this to ‘futureproof
the ONI Act in the event the nomenclature of TS-PA security clearances are
changed in future’.[82]