39BAProcedure in Security Division review of security clearance decision or security clearance suitability assessment

#### 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: (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). 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: (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 (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 (c) the Tribunal thinks that, because of evidence adduced by the 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. (23) In exercising a power under a delegation under subsection (22), the delegate must comply with any written directions of the ASIO Minister.