Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) This section applies if the Director - General is notified under section 139 of the Administrative Review Tribunal Act 2024 of an application to the Administrative Review 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 Review Tribunal (see paragraph 141(2)(b) of the Administrative Review Tribunal Act 2024 ).
(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:
(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;
(c) any information that, in the opinion of the Director - General 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.
(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.