VXYH and Director-General of Security
[2014] AATA 368
•11 June 2014
[2014] AATA 368
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1615
Re
VXYH
APPLICANT
And
Director-General of Security
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 11 June 2014 Place Brisbane The Tribunal does not have jurisdiction to review the decision.
...............................................................
Senior Member Bernard J McCabe
CATCHWORDS
NO JURISDICTION – Applicant’s employment terminated after security clearance cancelled – Previous application before Tribunal dismissed – Tribunal directed it had no jurisdiction – Fresh application argues new approach to interpretation of legislation – Consideration of Parliamentary intention to exclude decision from review – Decided that Tribunal has no jurisdiction to review the decision.
LEGISLATION
Australian Security Intelligence Organisation Act 1979 (Cth) ss 36(c); 37; 54
Administrative Appeals Tribunal Act 1975 (Cth) ss 42A(4); 42A(10)
CASES
VRHQ and Director-General of Security [2014] AATA 139
Re Nicholson and Secretary, Department of Social Security (1991) 21 ALD 537
SECONDARY MATERIALS
Explanatory Memorandum, Intelligence Services Legislation Amendment Bill 2011 (Cth)
Commonwealth, Parliamentary Debates, House of Representatives, 23 March 2011, 2861 (Robert McClelland)
Commonwealth, Royal Commission on Intelligence and Security, Reports (1976-77)
REASONS FOR DECISION
Senior Member Bernard J McCabe
11 June 2014
BACKGROUND
The applicant in these proceedings was formerly employed by the Australian Security Intelligence Organisation (ASIO), which is established under the Australian Security Intelligence Organisation Act 1979 (Cth) (“the ASIO Act”). His employment was terminated after a decision was made to cancel his security clearance. (An employee of ASIO cannot remain employed by the organisation if he or she does not have security clearance.) The applicant applied to the Tribunal for a review of that decision but the application was dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) when the Tribunal was not satisfied it had jurisdiction. The applicant subsequently applied to have the matter reinstated pursuant to s 42A(10) of the AAT Act on the basis the Tribunal was mistaken as to its conclusion on jurisdiction.
After a reinstatement hearing in which the applicant was represented by solicitor and counsel, the Tribunal confirmed it did not have jurisdiction and declined to reinstate the matter. The reasons of SM Creyke are explained in VRHQ and Director-General of Security [2014] AATA 139.
The applicant has now returned to the Tribunal with a fresh application for review.
He says he does not dispute the Tribunal's reasoning in VRHQ and Director-General of Security but argues the Tribunal was not aware of a new approach to the interpretation of s 36(c) of the ASIO Act which is apparent from a reading of the Explanatory Memorandum and the Second Reading Speech that accompanied the Intelligence Services Legislation Amendment Bill 2011 (Cth).
The respondent says SM Creyke dealt with all that and more in her reasons. It says this Tribunal should not effectively second-guess itself – indeed, it says the Tribunal cannot revisit the question of jurisdiction because it is functus officio, for the reasons explained by DP Forgie in Re Nicholson and Secretary, Department of Social Security (1991) 21 ALD 537.
Arguments about whether the Tribunal has the jurisdiction to review its own decisions as to jurisdiction are complicated. Suffice to say I have concluded – even if I do have jurisdiction to revisit the question of jurisdiction – I would not reach a different view to that of SM Creyke in VRHQ and Director-General of Security.
THE LEGISLATION
The applicant says he has received an adverse security assessment from ASIO. ASIO is authorised to furnish security assessments of individuals seeking or continuing to be engaged in employment to agencies within the Commonwealth government: s 37 of the ASIO Act. A person who receives an adverse security assessment may appeal that assessment to the Tribunal under s 54. But not every assessment can be appealed: s 36 identifies particular types of assessments that are not subject to review. The respondent says the applicant has not actually received an adverse security assessment of the kind referred to in Part IV – but if he has, it is excluded by reason of s 36(c) which effectively makes assessments of ASIO's own employees unreviewable.
The applicant says the restriction in s 36(c) should be read in light of the intention expressed in the Explanatory Memorandum and the Second Reading Speech accompanying the Intelligence Services Legislation Amendment Bill 2011 (Cth). He also referred to the objectives identified by the Royal Commission on Intelligence and Security (the Hope Royal Commission) which, I was told, raised concerns about ASIO making security assessments that could not effectively be challenged. The applicant says the ASIO Act should not be interpreted so as to make ASIO assessments in relation to ASIO employees (as opposed to assessments of the employees of other agencies) unreviewable by the Tribunal.
Section 36(c) is clear. The words of the section, when read in the context of the ASIO Act as a whole, do not admit of any uncertainty that would entitle the Tribunal to resort to secondary material like the Explanatory Memorandum or the Second Reading Speech. The Parliament's intention to exclude ASIO assessments from review by the Tribunal – if that is what we are talking about in this case – is apparent from the words of the statute.
At the hearing, I discussed whether we were talking about an application for an extension of time to appeal the original decision, or an application for reinstatement, or a hearing of jurisdiction. It ultimately makes no difference because the decision made by SM Creyke in VRHQ and Director-General of Security was correct. The tribunal proceedings are at an end. If the applicant is dissatisfied with that outcome which I adopt, the proper course is to lodge an appeal in the Federal Court.
CONCLUSION
The Tribunal does not have jurisdiction to review the adverse security assessment in respect of the applicant.
11. I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
....................................................................
Associate
Dated 11 June 2014
Date(s) of hearing 30 May 2014 Date final submissions received 3 June 2014 Applicant In person Solicitors for the Respondent Australian Government Solicitor
0
0
0