MCLT and Director-General of Security

The Administrative Appeals Tribunal (AAT) considered an appeal by MCLT against a decision by the Director-General of Security to affirm an adverse security assessment, which resulted in the refusal to grant MCLT a Negative Vetting 1 security clearance. The primary dispute concerned the weight to be given to evidence presented by the Director-General, particularly evidence given in closed sessions and the evidence of a witness named Mr Deklan.

The legal issues before the Tribunal included whether the procedures followed by the Director-General, specifically the refusal to allow MCLT's counsel to be present during closed hearings where the Director-General's evidence was presented, created a forensic disadvantage for MCLT. The Tribunal was also required to determine the weight to be afforded to Mr Deklan's evidence, given submissions that he acted as a commentator rather than providing direct factual evidence and that his evidence contained inconsistencies. Furthermore, the Tribunal had to interpret the meaning of the word "likely" as used in Determination No. 2, a significant legal instrument binding on ASIO officers.

The Tribunal acknowledged that it was bound by the procedures set out in the AAT Act relating to matters heard in the Security Division, even if these procedures were inconsistent with procedural fairness. It noted that it was a practice for the Tribunal to ask questions of witnesses in closed session that the applicant would have the Tribunal ask, to mitigate the disadvantage. The Tribunal stated that it had assessed the evidence directly, including MCLT's own evidence and the Director-General's evidence, without regard to any person's opinion or assessment of what recommendation or advice should be formulated. Regarding the interpretation of "likely" in clause 7.2.5(b) of Determination No. 2, the Tribunal concluded, without the benefit of argument due to redaction of critical language, that the word was used in its ordinary sense and did not require further embellishment, serving as a final check before an adverse or qualified assessment. The Tribunal also discussed the role of policy in discretionary decision-making, noting that the meaning of an enactment is interpreted in light of legislative intention.