HWMW and Director-General of Security (Intelligence and Security) - [2025] ARTA 105

HWMW and Director-General of Security (Intelligence and Security) [2025] ARTA 105 (20 February 2025)
Applicant/s:  HWMW
Respondent:  Director-General of Security
Tribunal Number:                2023/5811

Tribunal:Deputy President P Britten-Jones
Senior Member S Webb
General Member S Evans

Place:Sydney
Date:20 February 2025

Decision:
The Tribunal affirms the decision of the Director-General of Security of the Australian Security Intelligence Organisation dated 2 June 2023 to issue an adverse security assessment against HWMW under s 37 of the Australian Security Intelligence Organisation Act1979 (Cth).
.

.....................[SGD]........................
Deputy President P Britten-Jones
Catchwords
NATIONAL SECURITY – adverse security assessment – recommendation to revoke a security clearance – applicant demonstrated loyalty incompatible to loyalty to the Australian Government – applicant failed to comply with the obligations of a security clearance holder – revocation of the applicant’s clearance is reasonable, appropriate and proportionate to the risk to security – decision affirmed
Legislation
Australian Security Intelligence Organisation Act 1979 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Cases
SDCV v Director-General of Security [2021] FCAFC 51
BLBS and Director-General of Security [2013] AATA 820
KFDJ and Director-General of Security [2022] AATA 3185
Plaintiff 47/2012 v Director General of Security [2012] HCA 46
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
MYVC v Director-General of Security & Ors [2014] FCA 1447
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Statement of Reasons

The Applicant, ‘HWMW’, is a member of the Australian Army who has held a Negative Vetting Level 2 (NV2) security clearance. The acting Director-General of Security (Director-General) issued an Australian Security Intelligence Organisation (ASIO) ‘Adverse Security Assessment’ on 2 June 2023 (including a statement of grounds) (ASA) in respect of the Applicant which recommended revocation of the Applicant’s NV2 security clearance by the Australian Government Security Vetting Agency (AGSVA).
In ASIO’s assessment there are real concerns about the Applicant’s loyalty to Australia, his susceptibility to foreign influence and his compliance with security holder obligations which pose a risk to security and it is not consistent with the requirements of security for the Applicant to hold a security clearance.
The Applicant does not agree with the ASA and applied for review by the Tribunal.
The application for review was lodged with the Administrative Appeals Tribunal (AAT) under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed and, as of 14 October 2024, the AAT has been replaced by the Administrative Review Tribunal (ART). Under the transitional provisions set out in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, from 14 October 2024, the ART has jurisdiction to conduct the review under the Administrative Review Tribunal Act 2024 (ART Act).
The Tribunal notified the Director-General and the Department of Defence of the application.
On 21 June 2023, the Minister for Home Affairs issued a certificate under s 38(2)(b) of the Australian Security Intelligence Organisation Act 1979 (ASIO Act), protecting certain information in the statement of grounds from disclosure to the Applicant.
On 28 August 2024, the Attorney-General issued certificates under s 39A(8) and (9) and s 39B(2)(a) of the AAT Act protecting certain evidence and submissions from disclosure.
The Tribunal’s review
The Tribunal’s review is conducted under Part 6 of the ART Act. Subsection 133(3) provides that:
To avoid doubt, this Act applies in relation to criminal intelligence assessments, security assessments and security clearance suitability assessments as if:
(a) those assessments were decisions; and
(b) the making of those assessments were the making of decisions.
In the review of a ‘security assessment’, which is a ‘security and intelligence decision’[1], s 163 is not applicable and the Tribunal must affirm, vary or set aside the security assessment decision under s 105. In so doing, the Tribunal is bound by s 166:
[1] Section 4, ART Act.
(1) The Tribunal:
(a) must make and record its findings in relation to the decision; and
(b) in relation to those findings—may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the decision.
(2) The Tribunal must not make findings in relation to the decision that would have the effect of superseding any information that is (or is taken to be) part of the decision unless those findings state that, in the Tribunal’s opinion, the information:
(a) is incorrect; or
(b) is incorrectly represented; or
(c) could not reasonably be relevant to the requirements of security; or
(d) could not reasonably be relevant for the purposes of having regard to whether there is intelligence or information that suggests that the person:
(i) may commit a serious and organised crime; or
(ii) may assist another person to commit a serious and organised crime.
As can be seen, the Tribunal must make findings and may state its opinion about the correctness or justification for any opinion, advice or information in the ASA. Assessing the correctness of or justification for any opinion, advice or information in the ASA does not require the Tribunal to engage in fact-finding in the usual way, being reasonably satisfied of relevant facts. The task is to consider if the available materials are sufficient to support such a finding. This is informed by the limit on making findings which would have the effect of superseding any information in the ASA unless the information is incorrect, incorrectly represented or not reasonably relevant for the purposes of s 166(2)9(c) or (d).
While the language used in s 166 is somewhat different from that used in the s 43AAA(2) and (3) of the AAT Act, the observations of the majority in SDCV v Director-General of Security (SDCV)[2] remain apposite:
[157] … [The Tribunal] must record its findings and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment. There are constraints on the circumstances in which the Tribunal is entitled to make findings that supersede ASIO’s findings. And there is a bar before the Tribunal can substitute its view for that reached by ASIO. It can only do so if in the Tribunal’s opinion the information is incorrect, incorrectly represented or could not reasonably be relevant for the requirements of security.
[2] [2021] FCAFC 51.
The Tribunal’s findings are given effect by s 61 of the ASIO Act:
Where an assessment has been reviewed by the Tribunal, every Commonwealth agency, State and authority of a State concerned with prescribed administrative action to which the assessment is relevant, and any tribunal, person or authority having power to hear appeals from, or to review, a decision with respect to any prescribed administrative action to which the assessment is relevant, shall treat the findings of the Tribunal, to the extent that they do not confirm the assessment, as superseding that assessment.
No standard of proof is expressly set out in the ASIO Act or in the ART Act. Considering such matters in BLBS and Director-General of Security,[3] the Tribunal stated:
While the degree of satisfaction required is not prescribed by the Act, the scheme of the Act is posited on ASIO being entitled to make an adverse assessment only if it possesses such relevant and probative material as a reasonable mind would accept to be adequate to support the conclusion(s) arrived at.
[3] [2013] AATA 820 at [46]
Within this framework, the Tribunal undertakes an independent merits review of the adverse security assessment on the relevant materials before it.[4]
[4] SDCV v Director-General of Security [2021] FCAFC 51, [4].
These include classified materials to which the Applicant is not privy. When dealing with classified materials and evidence, as often occurs in this area of the Tribunal’s jurisdiction, the Applicant and his counsel were excluded from parts of the hearing conducted in closed session. In order to minimise the inevitable and obvious issues of fairness which arise from the legislative scheme Parliament enacted, the Tribunal put questions posed by the Applicant, and tested the documentary and oral evidence given in closed session.
After careful consideration of the materials and the submissions made, we do not consider it necessary to issue a closed set of reasons for our decision. For reasons which will appear, the decision is made with reference to the open materials. We have, of course, had regard to confidential materials. It is not necessary to refer to these materials in any detail, as they simply reinforce the decision we have made on the open materials.
The Security Assessment
The Applicant has been given an open version of the ASA which includes a Statement of Grounds (Grounds). These documents set out the following uncontroversial background factual information:
(a)The Applicant is an Australian citizen.
(b)He was granted an NV2 security clearance in 2010.
(c)The NV2 security clearance is required for his role with the Australian Army Reserves.
(d)On 7 December 2015, AGSVA requested ASIO provide a security assessment to inform revalidation of the Applicant’s NV2 security clearance.
(e)On 21 October 2020, ASIO conducted a security assessment interview with the Applicant (1^st interview).
(f)On 8 April 2021, the Applicant completed a written security assessment questionnaire.
(g)On 24 March 2022, ASIO conducted another security assessment interview with the Applicant (2^nd interview).
(h)On 26 April 2023 the Applicant provided additional information in a further security assessment questionnaire.
The ASA sets out the following assessment and recommendation:
Assessment
For the reasons set out in the statement of grounds (attached), [ASIO] assesses that it would not be consistent with the requirements of security for [the Applicant] to hold a security clearance of any kind.
Recommendation
ASIO recommends:
a. that AGSVA revoke [the Applicant’s] NV2 security clearance; and
b. that a further security assessment be sought from ASIO if [the Applicant] applies for another security clearance of any kind.
The information and ASIO assessments set out in the Grounds include:
[The Applicant] has demonstrated a higher level of loyalty to Israel than to the Australian Government.
12. ASIO assesses [the Applicant’s] demonstrated loyalty to Israel is incompatible with the loyalty to the Australian Government required of a security clearance holder.
a)        At the [2^nd interview], [the Applicant] stated on two occasions that he would provide classified or sensitive information to Israel if they asked for it, and he would then inform ASIO that he had done so. When interviewing officers asked [him] to clarify his statement, [he] changed his statement to say that he would first tell ASIO and then pass the information to Israel. During both [interviews], [the Applicant] used the term ‘we’ to discuss his perspective on Israeli politics and stated he doesn’t view Israel as a foreign government, suggesting that he identifies closely with Israel, or as a citizen of Israel.
b)        At the [2^nd interview], [the Applicant] stated that he ‘loves Israel’, was nationalistic towards Israel and agreed with the ‘strong nationalistic camp in Israel’. [The Applicant] said he feels a ‘natural solidarity with Israel’ and that he, as a Jewish person, has ‘loyalty to Israel’…
c)        Individuals with linguistic, cultural or ethnic backgrounds associated with a foreign country are likely to be seen by the intelligence services of that country as an attractive recruitment prospect.
d)        During the [2^nd interview], [the Applicant] stated he has loyalty to the CSG [Community Security Group]… he was specifically told to describe the Israel-based training courses as Jewish leadership courses… [The Applicant] stated he did not openly declare the purpose of his Israel travel during the clearance process as he was worried doing so would have a negative effect on his security clearance process and would require answering more questions about the CSG, which he had been told by the CSG to be guarded about… ASIO assesses [the Applicant] intentionally withheld information on his travel to attend Israel-based training courses. ASIO assesses this demonstrates [the Applicant’s] loyalty to Israel outweighs his obligations to the Australian Government as a security clearance holder.
i. [The Applicant] has demonstrated loyalty to Israel in preference to his obligations as an Australian Government security clearance holder by persistently omitting details regarding his role with the Sydney CSG and associated Israel-based training throughout the security clearance process.
ii. In [the 2^nd interview], he stated he ceased volunteering with the CSG as of February 2023, but is undecided as to whether he will return in the future. [The Applicant’s] pause in his involvement in the CSG does not change ASIO’s assessment of his loyalty to Israel.
[The Applicant] is vulnerable to influence or coercion to enable acts of espionage or foreign interference by Israeli Intelligence Services (IIS) due to his loyalty to Israel.
13. ASIO has longstanding security concerns regarding any Australian citizen undertaking overseas travel for training funded by a foreign government without Australian Government knowledge or consent. The concerns become particularly acute when that training involves a clearance holders, firearms handling, tactical planning and security principles.
14. During the [1^st interview], [the Applicant] said he attended two CSG training courses in Israel, in 2016 and 2019, where he undertook self-defence and scenario-based training. When asked to expand, [the Applicant] indicated the training covered basic security principles, planning skills and firearms handling. He said the courses were run by a ‘trust’ called Ami-AD. The trainers had all served in the Israeli Defence Force (IDF) and a lot had been in Shabak, which [the Applicant] said was the Israeli Police and likened them to the Federal Bureau of Investigation (FBI). During the [2^nd interview], [the Applicant] stated that Ami-AD were ‘sourced and financed by the Israeli Government’. [The Applicant] said he was not aware of the exact details but said that Ami-AD worked ‘hand-in-hand’ with the Israeli Government.
15.During the [2^nd interview], [the Applicant] was advised of ASIO’s concerns regarding the potential for Israeli Government sponsorship of training courses he had attended in Israel. [The Applicant] said he understood ASIO viewed Israel as a foreign government, but he did not. Interviewing officers raised concerns that a foreign government providing the aforementioned training may use it as a means to recruit or coerce trainees. [The Applicant] responded that ‘hypothetically’, the Israeli Government might approach a volunteer if they were considered highly skilled or talented to work ‘somewhere within the Israeli Government’. [The Applicant] said that the CSG training could be considered a ‘natural recruiting pool’ for Mossad as they (Mossad) would likely be aware of the training courses. [The Applicant] said he thought that if Mossad saw an individual [on one of the CSG training courses in Israel] that they wanted, or had the skills they wanted, Mossad might offer them a position. ASIO assesses that [the Applicant] understood that Mossad has the capability and intent to recruit or use foreign individuals to pursue Mossad’s own objectives.
16. ASIO assesses [the Applicant] knowingly withheld information throughout the security clearance process regarding his participation in Israel-based training courses, in an attempt to protect those involved in the training by misleading the Australian Government and to minimise implications for maintaining his NV2 security clearance. ASIO assesses [the Applicant’s] participation in training increases his vulnerability to influence or coercion by IIS. Withholding such information relevant to the security clearance process demonstrates [the Applicant] does not prioritise his obligations to the Australia Government as a security clearance holder.
a)        [The Applicant’s] loyalty to Israel and withholding of information during the security clearance process raise significant doubt that he is of appropriate character and trustworthiness to hold any security clearance.
[The Applicant] has failed to comply with the obligations of a security clearance holder and demonstrated poor judgement in the security clearance process.
17. …ASIO assesses [the Applicant] is aware of, and understands, his obligations under the PSPF, and has chosen to disregard his obligations and responsibilities as a security clearance holder and did not report foreign contacts.
a)        During the [1^st and 2^nd interviews], [the Applicant] said he received training to be a security officer while in a role supervising Army Cadets… and held the security officer role between 2017 and 2019. [The Applicant] said he was familiar with the content of the PFPS. [The Applicant] undertook mandatory security awareness training on at least nine occasions between 2005 and 2019 and security officer training in 2017. AGSVA encourages security officers to develop a good understanding of the PSPF.
18. ASIO assesses that [the Applicant] has disregarded his obligation as a security clearance holder to comply with the [Need To Know] NTK principle. At the [1^st interview], [the Applicant] was asked about his awareness of the NTK principle. He said he did not recall a time when he had been asked for information outside someone’s access and he had not asked for ‘things’ outside his required access.
a)        … ASIO assesses that if a uniformed Defence member and/or [Elbert Australia Subsidiary] ELSA employee asked [the Applicant] for information he would provide it without questioning whether or not they had the correct clearance level and NTK.
b)        [The Applicant] said if he was asked for classified information by an Australian Army member who had an appropriate clearance level, he would not find it suspicious unless it was persistent or peculiar. ASIO assesses this is [the Applicant’s] approach to sharing classified information regardless of the NTK principle.
19. [The Applicant] failed to comply with the confidentiality agreements he signed with both AGSVA and ASIO. At the [1^st interview], [the Applicant] agreed to maintain confidentiality of what was discussed at the [interview]. Despite this, in his first [questionnaire] response, [he] wrote that following the [1^st interview] he met …[Person A], the Head of the Sydney CSG, and told [Person A] that he had told ASIO about the Sydney CSG, among other details of the [interview]… In the [2^nd interview], [the Applicant] confirmed that he breached confidentiality by discussing the [1^st interview] with [Person A]. Further, [the Applicant] stated he ‘did not view it as a breach of confidentiality’ because [Person A] was already aware the [the Applicant] was meeting with ASIO.
a)        By discuss the content of the [1^st interview], after twice agreeing to maintain confidentiality, [the Applicant’s] demonstrated behaviour raises significant doubt about his judgement, trustworthiness and willingness to adhere to the security requirements of an NV2 security clearance holder.
b)        At the [2^nd interview], [the Applicant] also said that interviewing officers were ‘being a little bit pedantic’ by asking [him] about his breach of confidentiality. ASIO assesses this demonstrates [the Applicant’s] lack of concern regarding the potential consequences for security presented by his breach of confidentiality. ASIO assesses these statements and actions reflect poor judgement which increases the likelihood of future breaches of confidentiality by [the Applicant].
20. [The Applicant] failed to comply with his contact reporting obligations… At the time of the [2^nd interview][the Applicant] had never lodged a contact report…
a)        … The reporting threshold [for ‘suspicious’, ‘on-going’, ‘unusual or ‘persistent’ foreign contacts by Australian officials] is very low and security clearance holders are required to report any contact of possible security concern.
b)        [The Applicant] submitted a number of contact reports following the [2^nd interview]… However, these contact reports were lacking detail and did not include all ongoing foreign contacts. ASIO assesses these contact reports were only submitted due to advice provided by interviewing officers during the [2^nd interview], rather than an acceptance of his obligations as a security clearance holder.
i.         As a long-time security clearance holder and former security officer, [the Applicant] would be aware of his obligation to report his contact with Israel-based trainers who were delivering the CSG training in Israel, especially given his response at both ASIO interviews to questions about CSG training courses that there was ‘probably a link to the Israeli Government’. ASIO assesses [the Applicant’s] failure to submit contact reports about the Israeli-based trainers is an intentional omission and does not comply with security clearance holder obligations.
21. … During the [2^nd interview], [the Applicant] mentioned a Facebook page, for which he is the administrator, called ‘The Land of Israel’. Through this page, [the Applicant] said he was in contact with various people in Israel who are ‘also involved in the support of Israel’. ASIO assesses these contacts are ongoing and therefore meet the obligation for contact reporting.
a)        … ASIO assesses [the Applicant’s] reluctance to report ongoing foreign contacts demonstrates a willingness to obscure them, and him, from Australian Government attention.
b)        In addition to the CRS, [the Applicant] was afforded other opportunities before and during the [1^st interview] to declare his interactions with members of the Israeli Knesset and Israeli political contacts; however, he did not do so until the [1^st and 2^nd interviews]. This demonstrates a willingness to mislead or withhold information from ASIO likely for the purpose of obtaining a security clearance.
…
23. By virtue of [the Applicant’s] demonstrated poor judgement, poor security practices, failure to comply with the obligations of a security clearance holder, his vulnerability to influence or coercion by the IIS, and [the Applicant’s] demonstrated loyalty to Israel above the Australian Government, ASIO assesses if [the Applicant] were to continue to hold any level of security clearance, he would pose an unacceptable and avoidable risk to security.
24. [The Applicant’s] ongoing access to classified or privileged Australian Government resources and information provided by security clearance increases the likelihood of exploitation of [the Applicant] to enable acts of espionage or foreign interference causing grave damage to Australia’s national interest, national security, commercial entities or members of the public.
25. ASIO has given consideration to the risk to security of [the Applicant] holding a security clearance, at any level, with specific conditions attached – such as restricting his access to sensitive information and systems or closely monitoring [the Applicant’s] compliance with Australian Government security policies and practices. However, due to [the Applicant’s] demonstrated loyalty to Israel and poor judgement by with holding security-relevant information during the security clearance process, no such conditions could adequately mitigate the risk of Mossad exploitation to enable acts of espionage or foreign influence.
…
[References removed.]

ASIO states:
28. … [The Applicant’s] inability to hold a security clearance at any level will likely adversely impact his ongoing employment with the Australian Army by restricting the subject matters and type of roles in which he is able to work. It may also adversely impact on his future employment prospects as a prospective employee or contractor within the Commonwealth and various Australian state governments. Notwithstanding these considerations, ASIO considers the recommended administrative action is appropriate and proportionate to the assessed risk to security should [the Applicant] continue to hold a security clearance.
29. Having considered these consequences, ASIO considers that the revocation of [the Applicant’s] NV2 clearance would be reasonable, appropriate, and proportionate to the risk to security.
Issues
The ultimate factual question we must decide in the context of the Personnel security vetting standards[5] and the Personnel security adjudicative guidelines[6] is whether the recommendation to revoke the Applicant’s NV2 security clearance is consistent with the requirements of security, namely the protection of Australians and Australia from espionage and acts of foreign interference, or the requirements of security make it necessary or desirable to recommend revocation of the Applicant’s security clearance.
[5] OCB, Tab 10, UD104
[6] Ibid, UD116-139
There are three key issues for determination in this review.
(a)The first is whether the ASA is a ‘security assessment’ for the purposes of the ART Act and the ASIO Act.
(b)The second is whether the information set out in the ASA is incorrect, incorrectly represented or it is not reasonably relevant for the purposes of s 166(2) of the ART Act.
(c)The third is whether the recommendations, opinions or advice set out in the ASA are reasonably supported by relevant material or information.
Is the ASA a ‘security assessment’?
The Director-General contends the ASA is a ‘security assessment’ and not a ‘security clearance decision’ or a ‘security clearance suitability assessment’.
The terms ‘security assessment’, ‘security clearance decision’ and ‘security clearance suitability assessment’ are defined in s 4 of the ART Act:
security assessment means:
(a) an adverse security assessment within the meaning of Part IV of the [Australian Security Intelligence Organisation Act 1979] ASIO Act;
(b) a qualified security assessment within the meaning of Part IV of the ASIO Act.
security clearance decision has the same meaning as in the ASIO Act.
security clearance suitability assessment has the same meaning as in the ASIO Act.
Under s 4 of the ASIO Act, ‘security clearance decision’ means:
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;
(c) impose, vary or remove conditions on a security clearance in 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).
The power for ASIO to make a ‘security clearance decision’ is set out in s 82C(1)(b) of the ASIO Act. Some decisions of this kind are susceptible to internal review and review by the Tribunal under Division III, Part IVA. The adverse assessment is not a ‘security clearance decision’ which has been subject to internal review under Subdivision A, Div III, Part IVA and it is not an ‘externally reviewable decision’ for the purposes of s 83 of the ASIO Act. This conclusion is consistent with the content of the adverse assessment which recommends but does not decide revocation of the Applicant’s security clearance.
The term ‘security clearance suitability assessment’ is given the following meaning in s 4 of the ASIO Act:
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 clearance) that has been, or may be, granted by another security vetting agency (within the meaning of Part IVA); and
(c) expressly states that it is a security clearance suitability assessment for the purposes of paragraph 82C(1)(d).
The adverse assessment issued in this case does not meet paragraph (c) of the ‘security clearance suitability assessment’ definition.
In its terms, the ASA is made under s 17(1)(c) and s 37(1) of the ASIO Act for the purpose of providing security advice to AGSVA “on whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of [HWMW]”. In other words, the adverse assessment was made under ASIO’s function ‘to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities’, which includes (under s 37(1)) ‘the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities’. From this it follows the adverse assessment has the characteristics of a ‘security assessment’ under Part IV of the ASIO Act.
Against this, the Applicant asserts ASIO’s adverse assessment is no more than a character assessment which does not amount to a ‘security assessment’.
For the reasons which follow, this is incorrect.
The term ‘security assessment’ is given the following meaning in s 35(1) of the ASIO Act:
security assessment or assessment means a statement in writing furnished by the Organisation to a Commonwealth agency, State or authority of a State expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question.
As can be seen, the statutory question posed in respect of ‘prescribed administrative action’ pivots on the ‘requirements of security’ and whether the taking of such action would be consistent with those requirements or the requirements make it necessary or desirable for the action to be taken. These questions must be addressed for the ASA to be a ‘security assessment’.[7]
[7] KFDJ and Director-General of Security [2022] AATA 3185, [37].
By definition in s 35(1), ‘prescribed administrative action’ relevantly includes:
(a) action that relates to or affects:
(i) access by a person to any information or place access to which is controlled or limited on security grounds; or
(ii) a person’s ability to perform an activity in relation to, or involving, a thing (other than information or a place), if that ability is controlled or limited on security grounds;
including action affecting the occupancy of any office or position under the Commonwealth or an authority of the Commonwealth or under a State or an authority of a State, or in the service of a Commonwealth contractor, the occupant of which has or may have any such access or ability;
ASIO’s recommendation in the ASA that AGSVA should revoke the Applicant’s NV2 security clearance is action of this kind. In the terms of the ASA, the recommendation arises from the question about the requirements of security.
At this point, it is necessary to consider the meaning of ‘security’ set out in s 4 of the ASIO Act:
security means:
(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from:
(i) espionage;
(ii) sabotage;
(iii) politically motivated violence;
(iv) promotion of communal violence;
(v) attacks on Australia’s defence system; or
(vi) acts of foreign interference;
whether directed from, or committed within, Australia or not; and
(aa) the protection of Australia’s territorial and border integrity from serious threats; and
(b) the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).
The Director-General asserts the relevant elements of this definition addressed in the adverse assessment are ‘espionage’ and ‘acts of foreign interference’. ‘Espionage’ is not given any special meaning. ‘Acts of foreign interference’ is given the following meaning:
acts of foreign interference means activities relating to Australia that are carried on by or on behalf of, are directed or subsidised by or are undertaken in active collaboration with, a foreign power, being activities that:
(a) are clandestine or deceptive and:
(i) are carried on for intelligence purposes;
(ii) are carried on for the purpose of affecting political or governmental processes; or
(iii) are otherwise detrimental to the interests of Australia; or
(b) involve a threat to any person.
The statutory question thus posed in respect of the requirements of security in this case is:
(a)whether the recommendation to revoke the Applicant’s NV2 security clearance is consistent with the requirements of security, namely the protection of Australians and Australia from espionage and acts of foreign interference; or
(b)whether the requirements of security make it necessary or desirable to recommend revocation of the Applicant’s security clearance.
Each limb of the question is forward-looking insofar as evidence of past or present circumstances or conduct can reasonably inform assessment of future risks or potentialities from which protection is required. As was said in BLBS and Director-General of Security[8] the reasoning supporting such an assessment must be ‘rational and inferences must be based on sound foundations”. Nevertheless, French CJ pointed out in Plaintiff 47/2012 v Director General of Security[9] that the definition of ‘security’ “does not set a threshold level of risk necessary to support an adverse assessment”[10].
[8] [2013] AATA 820, [67].
[9] [2012] HCA 46
[10] Ibid, [68].
The Director-General submits that the ASA squarely addresses the statutory question posed by the definition of ‘security assessment’.
The Applicant contends the assessment does not specify on reasonable grounds what risk he poses to the Commonwealth and the likelihood of the risk in fact eventuating if he is given a security clearance. He asserts he has held a security clearance for more than 15 years and the ASA is a character assessment which draws conclusions about him that are not reasonably available on the evidence.
This goes to the content of the ASA rather than whether it meets the definition of a ‘security assessment’. The ASA includes a Statement of Grounds which sets out the matters ASIO assessed are not consistent with the requirements of security in respect of the Applicant’s loyalty, his vulnerability to influence or coercion and his failure to comply with the obligations of a security clearance holder. Contending the assessment is not based on reasonable grounds does not advance the definitional point, although it raises a question of merit to which we will return.
Engaging in predictive speculation about the likelihood of something occurring in the future is not to the point in this case. Degrees of likelihood or risk simply underscore the inherent uncertainty of forecasting future potentialities. The statutory task is squarely directed to the protective requirements of security in the context of the risk posed by the Applicant continuing to hold a security clearance. Where there are reasonable grounds to ‘speculate’ about risks of espionage or acts of foreign interference should the Applicant continue to hold a security clearance, it is through this protective lens the risk must be viewed. This is so whether or not there is a ‘real chance’ of such an eventuality occurring, applying the formulation discussed by the plurality in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[11]. Whether there is a ‘real chance’ or only a low speculative possibility of such an event occurring, the sharp point of the statutory question is whether such a prejudice to security is sufficient to issue the adverse assessment and recommend revocation of the Applicant’s security clearance.
[11] [1996] HCA 6, per Brennan CJ, Toohey, McHugh and Gummow JJ [42]-[43].
In the Applicant’s submission, there must be a nexus between the assessment of his character and the potential alleged risk. This does not advance the definitional point. It has been said that what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.[12] It is not controversial that an objective assessment of a person’s character is relevant when assessing any risk the person poses to security. Nevertheless, in a case of this kind, the content of the Applicant’s character as revealed by his past conduct is only one of the relevant considerations within the decision-making framework for granting security clearances.
[12] MYVC v Director-General of Security & Ors [2014] FCA 1447 at [52] citing Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575.
The national scheme for granting security clearances is an element of the Commonwealth system for limiting access to sensitive information, resources and locations. The system is a creature of policy rather than statute. It is set out in the Protective Security Policy Framework (PSPF)[13]. It provides for the classification of information based on assessment of the value, importance or sensitivity of the information and consideration of the potential damage to government, the national interest, organisations or individuals that would arise if the information’s confidentiality was compromised[14].
[13] UD 251-294.
[14] Ibid, 252.
The PSPF sets out the requirements and eligibility for security clearances in respect of roles or positions and personnel for the purposes of managing eligibility, suitability and risk across government. These include Personnel Security Vetting Standards (Standards)[15], Personnel Security Adjudicative Guidelines (Guidelines)[16] and the Ongoing Assessment of Personnel[17]. Under the Standards, vetting agencies are required to assess an individual’s suitability to hold a security clearance by considering their ‘integrity’ in accordance with the Guidelines.[18] In this context and for the purposes of security vetting, ‘integrity’ is defined as “the character traits of honesty, trustworthiness, maturity, tolerance, resilience and loyalty”[19], and “soundness of character and moral principle”[20]. Brief explanations are given of each of these character traits. These are matters of content or justification, rather than definition.
[15] Ibid, 104-115 and 175-191.
[16] Ibid, 116-128 and 192-206.
[17] Ibid, 217-131.
[18] Ibid, 104.
[19] Ibid.
[20] Ibid, 116.
Returning to the Applicant’s submission, while character traits are matters for consideration under the Guidelines, the key issue in the context of the definition of ‘security assessment’ is the nexus between ASIO’s assessment of the risk posed by the Applicant holding a security clearance, the protective requirements of security and ASIO’s recommendation the Applicant’s security clearance should be revoked. These matters are squarely addressed in the ASA. So much is clear in the terms of the open assessment provided to the Applicant.
We are satisfied the ASA meets the threshold of a ‘security assessment’ for the purposes of Part IV of the ASIO Act and Part 6 of the ART Act.
The Evidence
The Tribunal has before it a large amount of documentary materials.
The unclassified materials are set out in the ‘Open Court Book’ (OCB) lodged for the Director-General, including four tranches of documents labelled as ‘UD’ and ‘RUD’ documents.
The Applicant challenged the veracity, reliability and relevance of some UD documents provided in support of the Director-General’s case. These include media articles[21], including articles to which the Applicant objects[22]. Generally, the UD documents are not in respect of the Applicant. Some contain prejudicial opinions. Other set out relevant historical background[23] and applicable standards and policies[24]. They add context, but little more, to the matters we must consider. To the extent they are relevant at all, these documents must be approached with great caution. They have not been tested in any way and their contents are of dubious veracity.
[21] OCB, Tab 10, Items 4-14 and 21-35.
[22] Ibid, 75-77, 301, 302 and 310.
[23] Ibid, Items 1-3.
[24] Ibid, Items 15-20.
The Applicant gave written[25] and oral evidence. The evidence includes transcripts of the Applicant’s interviews with ASIO[26] and his responses to ASIO questionnaires[27].
[25] Ibid, Tab 4 and Tab 15.
[26] Ibid, Tab 11, Items 8 and 20.
[27] Ibid, Items 13 and 32.
“Brian Dowell”, a former senior ASIO officer, gave written[28] and oral evidence. Mr Dowell considers that the Applicant is vulnerable to influence or coercion by the Israeli Intelligence Services (IIS) to enable acts of foreign interference or espionage based upon the following factors:
[28] Ibid, Tab 12.
a.    the applicant is likely known to IIS as a result of his participation in training in Israel;
b.    the applicant's character, including:
i.    a demonstrated willingness to withhold information from personnel security processes;
ii.    a level of maturity and judgement that does not meet the standard required of security clearance holders;
iii.    poor security awareness; and
c.     the applicant has a high level of loyalty to Israel.[29]
[29] Ibid, [29]
In relation to the Applicant’s character, Mr Dowell said:
35. Based on my experience, the material that I have reviewed raises serious security concerns about the applicant's:
a.willingness to withhold information;
b.susceptibility to influence; and
c.maturity and judgement - including security awareness.[30]
[30] Ibid, [35]
In relation to loyalty to Israel, Mr Dowell said:
69. Security clearance holders are required to have an overriding loyalty to Australia. Security risks arise when security clearance holders have a strong loyalty to another country that might exceed or conflict with their loyalty to Australia, because this loyalty renders them vulnerable to an approach by a FIS as I describe further below.
70. The applicant has a close affinity with and high level of loyalty to Israel, evidenced by his statements in the second SAI: for example, RUD221 SAI 24/03/2022 p 31 Q312. The applicant has also stated that he is loyal to Australia. However, and importantly, the applicant does not appear to be conscious of the extent to which his loyalty to Israel may conflict with his loyalty to Australia. For example, the applicant stated in the SAls:
a.... "we kind of view a loyalty to Israel as not being conflicting with Australia": RUD238 SAI 24/03/2022 p 48 Q598;
b."I don't think Israel would really be interested in Australia to that extent" and "I think Israel - even if they were to have that information, I mean, Israel and Australia, we're sort of - we're friends - to my knowledge, we're in alliance": RUD244 SAI 24/03/2022 p 54 Q652, Q655; and
c."But in terms of purely Australia and Israel, I don't think Israel gives a fuck, really, excuse my language, about what Australia - who's got, who's where and who is doing what. Unless of course it's going to be Australian troops coming to, you know, invade Israel, or on the border to enforce something, then that may be different. But that's certainly not - that's not the reality you know right now, and I can't see that in the future either": RUD244 SAI 24/03/2022 p 54 Q656.
71. I take from these statements that the applicant believes the interests of Australia and Israel to be close to perfectly aligned, and that his shared or divided loyalty would be a problem only if an active conflict between Australia and Israel arises. When pressed to provide examples of when Australia and Israel's interests may not align, the applicant also suggested that he was serving in the Australian Army at the moment and therefore his loyalty was "with you, with Australia": RUD85 SAI 21/10/2020 p 32 Q352.
The applicant does not appear to appreciate the extent to which Australia and Israel's interests, including in the protection of sensitive information held by the Australian Government, may diverge.
…
76. I have not formed a definite view about whether or not the applicant's loyalty to Israel "exceeds" his loyalty to Australia. Based on the admissions set out above, I think there is a real risk that it does, or that it at least has the potential to. However, in my opinion, for the purposes of the assessment of the risk posed by the applicant continuing to hold a security clearance, the important point is whether his loyalty to Israel might, in some circumstances, cause him to act in a manner that is contrary to the interests of Australia. In my opinion, it is clear that it might, because:
a.the applicant's loyalty to Israel is a source of vulnerability to approach or exploitation to 11S; and
b.the applicant's naivety about that possibility is in itself a substantial source of risk.[31]
[31] Ibid, [69]-[71], [76]

The Applicant’s written statement of 8 March 2024 responded to the Brian Dowell affidavit. By way of introduction, the Applicant said:
7. The ADF is an organisation that embraces multiculturalism and the acceptance of all peoples regardless of their race, religion, or sex. Allowing Jews to serve within the ADF must come with an understanding that the Jew will have a level of loyalty for the Jewish Nation and for State of Israel. Just as are [sic] ethnic groups remain loyal to their county or [sic] origin or their heritage. The Australian Government must appreciate the implications of allowing Jews to serve within the ADF and the associated inherent risk. If the implication of this risk dictate the preference for the ADF to avoid observant Jews who harbour loyalty to the Jewish Nation, then this undermines the broader multiculturalism of the ADF workforce. It would then be argued that this policy may be discriminatory to the Jewish People.[32]
[32] Ibid, Tab 15 [7]
In relation to the Applicant’s character, he said:
10. I would like to assert that I disagree with the accusation of my willingness to withhold information. I always had the intention of providing the information required even if this meant that I would have provided the information at a subsequent interview, as I in fact did. I believe I was very much transparent during the interview process and provided all information requested during the interview.
…
12. The fact that I did not label my trips to Israel in 2016 and 2019 for the initial questionnaire as CSG courses; providing the nature of the training, who funded the training etc. ultimately comes down to the lack of experience and the dilemma of harbouring loyalty to the Jewish Nation. The information was always going to be provided at one stage or another. With better guidance and foresight, without a doubt, I would provide this information if given my time again. My involvement in the CSG was only ever for one purpose and that is to play a role safeguarding the local community from attacks, so that my children, my family and the broader Jewish community can continue to be a thriving proud Jewish community in Australia, and a community loyal to Australia.
…
15. I admit and regret my error in breaching confidentiality with [Person A]. However, again a factor at play here is the dichotomy of loyalty and the lack of guidance in navigating uncharted conflicting requirements. In hindsight, I have learned my lesson from this error.[33]
[33] Ibid, [10], [12] and [15]
In relation to the issue of loyalty, the Applicant said:
21. As stated in the opening remarks, Zionism is an essential theme within Judaism. Judaism mandates the loyalty of a Jew to his people and to the Land of Israel. ASIO would be well aware that most Australian Jews do not volunteer to serve in the ADF, the vast majority of Jews in Australia, if they do serve in any national army, serve in the IDF. I elected to serve in the ADF as I felt a strong sense of belonging to Australia and I wanted to give back to the country and demonstrate the importance of serving here in Australia as opposed to the IDF. It seems that events have now turned on me.
22. The Australian Government is aware that every Jew harbours a varying degree of loyalty to Israel. Some have a higher and more overt levels of loyalty than others. This is the latent risk that the Australian Government must naturally accept when employing Jews. The revocation of my Security Clearance and subsequent removal of myself from the ADF, notwithstanding 19 years of service, on the grounds that I harbour loyalty to Israel, would be viewed within the Jewish World with apprehension. This further puts into question the standard of multiculturalism tolerated within the ADF.
23. The 19 years of service I rendered to the ADF are clear indications of strong loyalty that I have shown for Australia. Throughout the interview process, I stated many times that I remained loyal to the ADF. Furthermore, my resignation from the CSG in March 2023 was an indication that I chose to prioritise the ADF over the CSG. Thus, the loyalty I have displayed to Australia must serve to moderate the stated risk that is been projected.[34]
[34] Ibid, [21]-[23]
The Facts as Found by the Tribunal
There is no significant dispute between the parties as to the background facts which are based on what the applicant told ASIO in his interviews. The real dispute is whether those facts support the assessments made in the ASA.
The Applicant is a full-time serving member of the Australian Army Reserve since 2013, having first joined the Australian Defence Force in 2004. He obtained an NV1 security clearance in 2008 which was increased to the NV2 level in 2010.
The Applicant joined the Community Security Group (CSG) as a volunteer in 2014 and he resigned in February 2023. The CSG is an organisation that provides security and intelligence services to the Jewish community. The respondent accepts that involvement in the CSG, of itself, would not justify the revocation of a security clearance.
When he first joined the CSG in 2014, the applicant participated in a basic security training course conducted over 12 weeks on Tuesday evenings.
The Applicant participated in two training courses in Israel in February 2016 and February 2019. The courses in Israel were conducted by Ami-AD, an organisation which the Applicant knew was “a group which are responsible for conducting security training to Jewish groups throughout the world” and was “sourced and financed by the Israeli government.”[35] Many of the trainers were “ex-shabak” which the applicant described as Israel’s “national police”.[36]
[35] RUD211
[36] RUD 73, 211
The Applicant described the purpose of his travel as being for “community leadership” courses.[37] Under cross examination, the Applicant said “There was no lie in that” but “It wasn’t a complete disclosure”.[38] Later he said “I provided a truth, it’s not the full truth … it was only to save myself from interrogation and questioning.”[39] The Applicant admitted that the failure to disclose that they were CSG training courses “was an error on my part … and if I had my time again I would provide the full information.”[40]
[37] RUD 67, 197-198 and transcript p 29
[38] Transcript p 29
[39] Transcript p 30
[40] Transcript p 30
The Applicant did not disclose his contact with the trainers on the training courses.
Contentions of the Applicant
The Applicant alleges information in the ASA is incorrect and he rejects the assessments and recommendations made by ASIO. He states he has 19 years Australian Army service during which he conducted himself in accordance with the requirements of his security clearance[41]. He asserts this demonstrates his devotion and loyalty to Australia. He states he is not susceptible to influence by the IIS and “under no circumstances would I conduct espionage or assist the IIS whilst I am wearing the ADF uniform”[42].
[41] Ibid, Tab 4, [18].
[42] Ibid, [5].
The Applicant states he is a practicing orthodox Jew and he has been open about his religious faith. He explains, in the Jewish faith, “the Land of Israel is regarded as the ‘Promised Land’ or ‘Holy Land’ and the homeland of the Jewish people”, and that the distinction between the ‘Holy Land’ and the state of Israel “are now inextricably linked”[43]. He asserts his expression of connection to Israel is a reference to the ‘Land of Israel’, and this should not be misunderstood to mean he has greater loyalty to the Government of Israel than to the Australian Government. He states:
My strong connection to the land of Israel and the state of Israel no way conflicts with my identity as an Australian and I would never act in any way disloyal to Australia. I never have on any occasions been disloyal to Australia nor do I intend to in any way be disloyal to Australia.[44]
[43] Ibid, [8].
[44] Ibid, [10].
He asserts there are elements of dual identity arising from his Jewish faith as an Australian, but there is “no substantial dichotomy in being raised with two separate and distinct loyalties”[45]. Nevertheless, he states he understands “this may have presented a security risk”[46] but “Foreign governments must therefore accept an inherent level of risk that a Jew, particularly an observant and learned Jew, will hold a latent level of loyalty for the Jewish Nation”[47]:
6. To that end, the government must appreciate the many dilemmas and personal conflicts that a Jew may carry for upholding loyalty to Australia and to Jewish people. But these dilemmas are internal and in no way equate to any disloyalty to Australia, nor adverse actions against Australia.
7. … The Australian Government must appreciate the implications of allowing Jews to serve within the ADF and the associated inherent risk. If the implication of this risk dictate the preference for the ADF to avoid observant Jews who harbour loyalty to the Jewish Nation, then this undermines the broader multiculturalism of the ADF workforce. It would then be argued that this policy may be discriminatory to the Jewish People.[48]
[45] Ibid, Tab 15, [3].
[46] Ibid, [4].
[47] Ibid, [5].
[48] Ibid, [6]-[7].
The Applicant states the reference in paragraph 12(a) of the ASA Grounds is incorrect – he would not provide sensitive or classified information to Israel if they asked for it. The Applicant asserts when questioned about this in the 2^nd interview he was fatigued by 4 to 5 hours of stressful probing questions. He alleges it was unfair to question him about passing information to Israel if the information suggested Israel was ‘in peril’: he understood ‘in peril’ to refer to catastrophic loss of life and asserts that “most people, including people with the highest security clearance might be troubled by this question, if the foreign country was not an enemy state”[49].
[49] Ibid, Tab 4, [24].
The Applicant accepts there was a breach of confidentiality in respect of Person A – “It was an error judgment made on my part”[50]. He asserts, however, that at no point did he withhold information from ASIO about his interactions with Person A and, presently, he is no longer a member of the CSG. The Applicant attributes his breach of confidentiality with Person A to “the dichotomy of loyalty and the lack of guidance in navigating unchartered conflicting requirements”[51]. In oral evidence, the Applicant accepted he knew, if he was unsure about his security obligations, he could have consulted the PSPF or called the security hotline for advice.
[50] Ibid, [26].
[51] Ibid, Tab 15, [15].
The Applicant contends he would not have participated in CSG training trips to Israel if he had known doing so would “arouse suspicion and impact my career in the ADF”[52]. He attributes his failure to “label” and provide information about trips to Israel in 2016 and 2019 in the first ASIO questionnaire to “lack of experience and the dilemma of harbouring loyalty to the Jewish Nation” and asserts “The information was always going to be provided at one stage or another”[53]. The Applicant states:
At no stage were CSG members told to withhold information from the Australian Government. The concept of secrecy was intended to encompass only family, friends and the community.[54]
[52] Ibid, Tab 4, [31].
[53] Ibid, Tab 15, [12].
[54] Ibid, [11].
The Applicant states, as a clearance holder, he fully supports the Contact Reporting Scheme and that he reported on individuals he determined met the “suspicious, ongoing, unusual and persistent [SOUP]” criteria[55]. In respect of paragraph 21(b) of the Grounds and “my reluctance to mention contacts with Knesset members on Facebook”, the Applicant asserts it is “not uncommon for people to comment on the FB posts of popular politicians of any country”[56] and he subsequently stated he was “unaware that I had an obligation to report my status as administrator of [my Facebook Page the Land of Israel]”[57].
[55] Ibid, Tab 4, [27].
[56] Ibid, [28].
[57] Ibid, Tab 15, [13].
In oral evidence, the Applicant accepted in 2015 he knew that, as a security clearance holder, he was required to advise AGSVA of contact he had with people he suspected were foreign intelligence officials and contact (including online contact) he had with other foreign nationals which was regular (“anything more than three to six months”[58]), enduring or of substance. He also accepted he knew that failure to fully disclose information could have an adverse effect on his security clearance[59]. He states “the deficiency in my contact reporting was because I did not believe the persons I was liaising with met all the criteria within SOUP and, hence, I could not bring myself to complete a Security Incident report”[60]. In oral evidence, the Applicant alleged, even though the word ‘or’ is used in the SOUP criteria, he understood all four of the SOUP criteria were required, but this was not something about which he sought clarification.[61]
[58] Transcript, 16 September 2024, 26.
[59] Ibid, 23.
[60] OCB, Tab 15, [18].
[61] Transcript, 16 September 2024, 49.
The Applicant states he is “unaware that I made any attempts to grant access to ELSA staff beyond what they were entitled to within the scope of their contact”[62] and the “Director of Training System (DTS) and my SO1 were explicit that I was to forcefully support ELSA staff in their efforts to roll the [Battle Management System] BMS across Army and to increase usage and literacy of this system”[63]. He states “I would not be surprised if some of the strong anti-Israel BMS signals staff would have submitted a security incident report regarding my efforts to support the literacy of this system”[64] and “I would like to support the assertion of bias against ELSA BMS held by many Army Signals Officers”[65].
Is the information set out in the security assessment incorrect, incorrectly represented or not reasonably relevant?
[62] OCB, Tab 15, [26].
[63] Ibid, [16].
[64] Ibid.
[65] Ibid, [17].
With regard to information in the ASA we make the following findings.
The information in paragraph 12(a) of the ASA that the Applicant changed his statement about providing classified or sensitive information to Israel if asked is derived from the transcript of answers he gave in the 2^nd interview on 24 March 2022:
Q841: Okay. Say you were in possession of information that would critically undermine Israel, but advance Australia’s interests. What would you do?
A:        My … Look, my loyalty is with Australia, and if it advances Australia’s position, then I’m employed as an Australian Army officer, and I’m not an Israeli citizen too, so at the end of the day I’m with Australia, and this is my first loyalty and priority, so I would – I would do what’s in Australia’s interests.
Q842: What if it weren’t necessarily in our interests, but you were still called on to act in a way that would critically undermine Israel?
A:        So, it would undermine Israel but not really benefit Australia?
Q843: Sure.
A:        So, what I would do is I would request your contact detail, and I would let you know that I’m passing this information onto Israel…
Q844: Okay
A:        … as a member, I would inform ASIO if I could …
Q845: Okay.
A:        … that I was doing that.
Q846: Say that Australia was in possession of information that could benefit Israel in myriad ways, we didn’t want to tell Israel, but then Israel approached you… Would you give it to them?
A:        It … what information?
Q847: Information from your work.
A:        No, no, no, no. No, I’m loyal to Australia, no, no, no. Regardless of anything I would – sorry, no, sorry, even the previous question you said, sorry, if it was concerning Australia’s work?
Q848: Yes.
A:        No, I wouldn’t pass anything onto Israel.
Q849: Cool.
A:        No, no, no. I’m sorry, I thought you meant something else, something neutral, something from a neutral – not concerning Australia. So, something neutral, that would be the case. Concerning Australian capability and Australian interest, absolutely not. Under no circumstances would I pass over anything onto Israel, under any myriad of matters, whether it beneficial or not beneficial.
…
Q867: So, for example, if Israel asked you for information about a third country that you were privy to, that wouldn’t affect in any way your …
A: I would pass that onto them, but I would contact you guys.
…
Q872: I have a quick clarifying question. So, you said you would tell them …
A:        About a third…
Q873: A third party.
A:        Yes.
Q874: And then you would inform us?
…
A:        I mean, look, if – I need to have your contact details so I can have regular – the appropriate contact with you, but you know, I guess first and foremost it’d probably be to consult you guys first before passing on…[66]
[66] Ibid, Tab 11, 264-267.
The information in paragraph 12(a) of the Grounds is correct and correctly represented.
The information that the Applicant identifies closely with Israel is correct. Albeit that he is not formally a citizen of Israel, the Applicant explained his Jewish faith in terms of being a member of the Jewish Nation. It is in this context the Applicant’s professed love for Israel and his avowed nationalistic feelings towards Israel, as well as his loyalty to Israel and the related “blurred lines”[67] and dilemma of loyalty he described, can be understood.
[67] Ibid, 261.
The information the Applicant has loyalty to the CSG is correct. This is contextualised by information the Applicant is not presently a member of the CSG. The Applicant provided information CSG members were told not to divulge information about the CSG outside the group and they were told “to keep it on the low”[68]. By his own account, he was told to describe the Israel-based training courses as Jewish community leadership courses. This is correct and correctly represented in the ASA.
[68] Ibid, 212.
The ASA correctly represents information the Applicant failed to openly declare the purposes of his travel to Israel to undertake the courses as he perceived this might adversely affect his security clearance validation and it might ‘open up a can of worms”[69].
[69] Ibid, 199.
The information in respect of the Applicant attending CSG training courses in Israel in 2016 and 2019 is correct. So, too, is the information the courses involved self-defence and scenario-based training, as well as basic security principles, planning skills and firearms handling (albeit that the firearms component was not included in the second course in 2019). The information the Israeli Government or Mossad might seek to recruit highly skilled or talented volunteers in the training is correctly attributed to the Applicant.
The information in respect of the Applicant’s security training from 2005 and his security clearances is correct. In this context, and by his own account, the Applicant was familiar with the content of the PSPF and the NTK principle. The ASA correctly reflects the Applicant’s account of not being aware of the security classifications of people he works with and not “spouting”[70] about anything classified beyond the level of those around him. This is so even though the Applicant subsequently asserted in his oral evidence he knew the security clearance of uniformed officers working around him as he had “access to the dashboard” and “a need to know”[71]. Information the Applicant would not find it suspicious to be asked for classified information by an Australian Army member with the appropriate clearance level unless it was persistent and peculiar is correctly attributed to the Applicant.[72]
[70] Ibid, Tab 10, 88.
[71] Transcript, 16 September 2024, 78.
[72] OCB, Tab 10, 87.
The Applicant accepts, correctly, he breached signed confidentiality agreements made with AGVSA and ASIO. The information summarising his confidentiality breach in respect of the 1^st interview is correct. The Applicant disclosed information about the content of the interview to Person A and, when asked about this in the 2^nd interview he considered it “a little bit pedantic” to be held to account for the breach as he “simply closed the loop with him"[73].
[73] Ibid, Tab 11, 279.

The information that the Applicant was aware of the Contact Reporting Scheme (CRS) obligations is not disputed, although the Applicant asserts he understood the four SOUP criteria were conjunctive rather than separately applicable. When asked about his knowledge of the CRS in the 1^st interview, the Applicant stated “I’m a bit rusty”[74]. The information at the time of the 2^nd interview the Applicant had never lodged a CRS contact report is correct.[75] The Applicant lodged CRS contact reports in respect of four individuals after the 2^nd interview[76]. On the information the Applicant provided in the 2^nd interview, it is probable he did not provide CRS contact reports for “all his foreign contacts”, even though this was requested in the 2^nd interview[77].
[74] Ibid, 86.
[75] Ibid, 87 and Tab 11, 258.
[76] Ibid, Tab 11, Items 16-19.
[77] Ibid, 257.
The information that the Applicant did not provide CRS contact reports in respect of the Israel-based trainers who provided the CSG training in Israel and users of his Facebook page ‘The Land of Israel’ is likely correct. The Applicant’s assertions about his understanding of the SOUP criteria do not render this information incorrect. His assertions are accurately reflected in the Grounds, including that he did not think he was required to submit a CRS contact report in respect of an Israeli activist he approached[78]. The Applicant was provided a questionnaire[79] after the 1^st interview which, among other things, provided further opportunity for him to declare interactions with Israeli political contacts. On 8 April 2021, the Applicant responded to the questionnaire and stated “I have not come into contact with anyone I suspect of being a FIS”[80].
[78] Ibid, 260-261.
[79] Ibid, 136-156.
[80] Ibid, 153.
On the open materials, we are satisfied the information in the ASA and the Grounds is correct and is correctly represented.
Are the recommendations, opinions and advice in the ASA reasonably supported?
ASIO’s opinion that the Applicant has demonstrated a higher level of loyalty to Israel than to the Australian Government is justified as the Applicant has, in our assessment, demonstrated loyalty to Israel which is incompatible with his obligations as a security clearance holder. The question of loyalty turns on the Applicant’s conduct and his adherence to obligations under the PSPF as a security clearance holder.
The Applicant’s responses to hypothetical scenarios put to him expose the “blurred lines” he described, consistent with divided loyalty between his obligations to the Australian government as a security clearance holder and the extent of his interests in Israel as an orthodox Jew. The Applicant’s evidence “I don’t think that Australia and Israel are as close as I did back then” does not resolve the ‘blurred lines’ and divided loyalty the Applicant discussed, albeit professing his “loyalty is with Australia”[81].
[81] Transcript, 16 September 2024, 84.
The Applicant’s uncontroverted conduct reinforces this justification. The Applicant accepts he breached his confidentiality obligations when discussing the 1^st interview with Person A, although he places little weight on this and asserts it was a minor breach which he would not repeat. This raises serious questions about the Applicant’s judgement, trustworthiness and willingness to adhere to the security requirements of an NV2 security clearance holder.
The Applicant failed to declare CSG training in Israel on two occasions even though, by his own admission, he understood the courses were conducted by Israeli trainers who had “been in the Shabak”[82]. The Applicant explained he suspected the courses were supported by the Israeli Government and Mossad was involved.[83] The Applicant’s assertion he was not subject to detailed debriefings after each trip is beside the point. As a security clearance holder, he was obliged to fully disclose his activities and contacts, rather than simply answering questions put by those debriefing him. ASIO’s opinion that this is not consistent with the Applicant’s obligations as a security clearance holder is justified.
[82] Ibid, 36.
[83] Ibid, 38-39.
The Applicant’s evidence he understood ASIO and the CSG to be “plugged together” and that he was “working under the same umbrella”[84] strains credulity and does not diminish the Applicant’s disclosure obligations as a security clearance holder.
[84] Ibid, 37 and 41.
By his own account, the Applicant did not fully declare these matters in the security clearance revalidation processes. In his oral evidence he explained “I provided a truth, it’s not the full truth… There was a decision to – it wasn’t a malicious intent to withhold, it was only to save myself from interrogation and questioning”.[85] This provides strong justification for ASIO’s assessment that the Applicant’s close identification with and loyalty to Israel outweighs his obligations to the Australian Government as a security clearance holder. ASIO’s opinion the Applicant does not prioritise his obligations to the Australia Government as a security clearance holder is reasonably supported by information in the ASA we have found to be correct.
[85] Ibid, 30.
We note this is not the only assessment open on this evidence. It is also open to assess that the Applicant decided to reveal only part of the truth for his own ends, so as not to “open a can of worms”[86]. Even so, conduct of that kind is not consistent with the Applicant’s obligations as a security clearance holder. Cessation of the Applicant’s membership of the Sydney CSG in February 2023 does not change the assessment he was not entirely truthful with ASIO.
[86] OCB, Tab 11, 199.
We are satisfied the materials reasonably support and justify ASIO’s opinions the Applicant’s divided loyalty and his failure to provide full and frank disclosure of his CSG training activities and contacts in Israel are not compatible with his obligations as a security clearance holder. The Applicant’s oral evidence he disclosed information to Person A in a chance encounter after the 1^st interview is no answer.[87]
[87] Transcript, 16 September 2024, 71-72.
We are also satisfied information we have found to be correct in respect of the Applicant’s conduct reasonably supports ASIO’s opinion the Applicant is vulnerable to influence or coercion to enable acts of espionage or foreign interference by IIS due to his loyalty to Israel.
The Applicant’s rejection of this assessment on grounds of age or that he is “a small fish”[88] not of sufficient interest to the Israeli Government, or that he does not possess information that would be of interest, are unpersuasive. In all likelihood, the Applicant is not in a position to know what might be of interest to the Israeli Government or to fully comprehend the mosaic of pieces of apparently disparate or innocuous information from which coherent intelligence might be obtained. These are matters for ASIO, which underscore the importance of the CRS. Nevertheless, in the 2^nd interview, the Applicant accepted “I probably do need to be a bit more careful, and maybe I do need to be perhaps a little bit less naïve about some of these things.”[89]
[88] OCB, Tab 11, 277.
[89] Ibid.
ASIO’s opinion that the Applicant failed to comply with his contact reporting obligations, applying the SOUP thresholds, is reasonably supported and justified. As an experienced security officer and security clearance holder, the Applicant alleges he was aware of his CRS obligations and the SOUP criteria. His assertion he applied the SOUP criteria conjunctively does not diminish his failure to report contacts with people in Israel he suspected of being involved with Shabak, Mossad or the Israeli Government. We have found information he failed to report his contact with people involved with Israeli politics and related activism to be correct. This reinforces and justifies ASIO’s opinion.
The Applicant’s contention that he did not understand he was required to disclose his activities on Facebook and his role of administrator of ‘The Land of Israel’ page does not reduce the significance of his CRS failures. If the Applicant was in any doubt about his reporting obligations, he could have sought advice from his superiors or from the security hotline. His admissions of not doing so are consistent with ASIO’s opinion his failure to comply raises a question about the suitability of his character and his trustworthiness. The Applicant’s apparent lack of uncertainty or inquiry about his reporting obligations must be considered in the context of his activities and his experience.
There are reasonable grounds to find:
(a)the Applicant is an experienced security clearance holder and security officer;
(b)he breached confidentiality with Person A, the head of the Sydney CSG at the time;
(c)he travelled to Israel to undertake training activities conducted by people he suspected had connections with the Israeli Government, Shabak or Mossad;
(d)he engaged with activists and others with political interests in Israel;
(e)he failed to declare contact with and fully disclose information about such people.
At the minimum, the available materials raise very serious questions about the Applicant’s knowledge of and compliance with his security clearance holder obligations and related thresholds, as well as his insight and his judgement. ASIO’s opinion that the Applicant demonstrated poor judgment during the security clearance process is justified.
Information we have found to be correct in respect of the Applicant’s failure to comply with his security clearance holder obligations supports a finding he exercised poor judgment when applying the SOUP thresholds and he did not consider it desirable or necessary to seek clarifying advice. This was despite his own account in the 1^st interview that his understanding of these thresholds was “a bit rusty”[90] and his assertion there was “a change to the reporting” forms which he found to be “a bit daunting” [91].
[90] OCB, Tab 10, 86.
[91] Transcript, 16 September 2024, 51.
In this context, ASIO’s opinion the Applicant would likely provide classified information contrary to the NTK principle is reasonably supported. The Applicant gave inconsistent accounts about his knowledge of the security classifications of personnel he worked with, including Army and ELSA personnel. In the 1^st interview he denied such knowledge[92] whereas in his oral evidence he explained he knew the security classifications of uniformed officers he worked with as “I was able to access the dashboard” and “I had a need to know” as the security officer[93]. In this context, the Applicant accepted his understanding of the NTK principle was wrong during the 1^st interview[94]: he was wrong to suggest he would not find it suspicious for a security clearance holder to ask for information without a need to know unless it was persistent or “a bit peculiar”[95].
[92] OCB, Tab 10, 88.
[93] Transcript, 16 September 2024, 78.
[94] Ibid.
[95] OCB, Tab 10, 87.
We are satisfied ASIO’s opinion “if [the Applicant] were to continue to hold any level of security clearance, he would pose an unacceptable and avoidable risk to security” is justified. The risk to security in respect of acts of foreign interference and espionage is raised by the Applicant’s past record of failing to comply with the obligations of a security clearance holder, including breaches of confidentiality, poor security practices and applicable thresholds under the PSPF, CSR and NTK standards, and, by his own admission, a need to be more careful and less naïve.
It is not to the point to call for proof of acts of foreign interference or espionage in prospect, or evidence of the Applicant previously engaging in related conduct. The evaluative task is prospective and forward-looking. We accept the threshold of tolerance for such a risk is low and the requirements of security in order to protect Australia and Australians from acts of foreign interference and espionage are high.
We are satisfied that, should the Applicant hold a security clearance, the risk to security in respect of ‘acts of foreign interference’ and espionage, albeit no more than a possibility, is squarely raised by the materials we have examined. It is a possibility we are satisfied is real and not so remote it should be discounted.
ASIO’s opinion that the potential for the Applicant, as a security clearance holder, to be exploited, albeit perhaps inadvertently, by actors related to Israel is squarely raised on the open materials. We accept, should this occur, the potential damage to Australia’s national or sovereign interests and, in the context of defence systems, commercial and public interests, is high. A security clearance is not limited to a specific role and, should the Applicant hold a security clearance, the risk posed would arise in any restricted employment or in respect of restricted material to which he had access, in Defence Industry projects which are of interest to Israel or related entities for example.
The information in the ASA supports ASIO’s recommendations for revocation of the Applicant’s NV2 security clearance and for any further application by the Applicant for a security clearance at any level should be subject to a further security assessment by ASIO.
The Applicant asserts that such action is disproportionate to the level of risk, particularly in circumstances where he has served in the Australian Defence Force for many years and revocation of his security clearance will likely have serious adverse effects on his employment. ASIO is correct to conclude this may adversely affect his employment prospects with Australian governments and contractors. He will be precluded from accessing restricted information and roles.
The proposition the Applicant has learned many lessons from the security clearance revalidation process and he could undergo further training on matters relating to SOUP, for example, weigh in the balance of proportionality. The materials we have examined do not support the contention that “any risk posed by the applicant if given a security clearance is negligible or non-existent”[96]. ASIO’s opinion that no conditions could adequately mitigate the risk to security should the Applicant hold a security clearance, at any level, is justified by information relating to the Applicant’s loyalty to Israel and poor judgement by withholding security-relevant information during the security clearance process. We are satisfied ASIO’s recommendation is justified by the risk to security. The prescribed administrative action of revoking the Applicant’s NV2 security clearance is proportionate to the risk to security, despite the adverse effects on the Applicant’s employment prospects.
[96] Applicant’s written closing submission, 15 November 2024, [60].
The Applicant’s assertion that precluding him from holding a security clearance on the grounds of his Jewish faith and Jewish cultural identity would be discriminatory is incorrect. It is the Applicant’s past conduct which has raised security concerns in this case, not his Jewish faith or Jewish cultural identity.
Conclusion
We are satisfied the information contained in the security assessment is correct and correctly represented, and we are satisfied it is reasonably relevant to the requirements of security in respect of risks of espionage and acts of foreign interference for the purposes of s 166(2)(c) and (d) of the ART Act.
The Applicant’s lack of insight into the obligations of a security clearance holder is squarely raised by the open materials. This is so, even though the Applicant has undergone security training on several occasions and he has experience as a security officer. The finding is reinforced by his past poor security practices, poor compliance with security obligations and breaches of confidentiality with Person A.
We find the Applicant’s willingness to deliberately withhold information and his incapacity to identify SOUP interactions, which might be influenced by a degree of naivete or a somewhat cavalier approach to his security obligations, are demonstrated by his past conduct.
These considerations support a finding the Applicant is susceptible to influence by people associated with Israel and the Jewish Nation. This is in no way critical of the Applicant’s faith or his Jewish cultural identity. It is a finding of susceptibility to influence which, when viewed through the lens of the requirements of security, poses a risk to Australia and its people.
We make no finding the Applicant has been or is disloyal to the Australian Government, rather he has divided loyalties between his obligations as a security clearance holder and his faith and Jewish cultural identity. In some cases, divided loyalties of this kind might not raise concerns about the requirements of security, especially where the obligations of a security clearance holder have been rigorously upheld and adhered to. This is not such a case. The Applicant has not adhered to such high standards. In the particular circumstances of his case, we are satisfied the Applicant’s divided loyalty does raise an issue of security in respect of espionage and acts of foreign interference.
The threshold of tolerance for such a risk is low and the protective requirement of security is high.
It is for these reasons, the prescribed administrative action ASIO recommended, for AGSVA to revoke the Applicant’s NV2 security clearance and for any further security clearance application by him to be subject to a further security assessment by ASIO is justified.
Consideration of the likely adverse effects on the Applicant, which we accept are real, does not compel any different conclusion. We are satisfied the recommended action is reasonable, appropriate and proportionate in the circumstances. It is consistent with the requirements of security. We are also satisfied the requirements of security make it necessary for the recommended action to be taken.
Consequently, the ASA will be affirmed.
Decision
The decision under review is affirmed.

Dates of hearing: 16 & 17 September 2024, 23 October 2024

Counsel for the Applicant: Mr J Cohen

Counsel for the Respondent: Ms J Single SC, with Mr H Rogers

Solicitors for the Respondent: Australian Government Solicitor

Dates of hearing:	16 & 17 September 2024, 23 October 2024
Counsel for the Applicant:	Mr J Cohen
Counsel for the Respondent:	Ms J Single SC, with Mr H Rogers
Solicitors for the Respondent:	Australian Government Solicitor