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Intelligence and Security - Royal Commission - Reports - 2nd (other than Appendices 2-A, 2-C, and 2-F)


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Parliamentary Paper No. 247/1977

The Parliament of the Commonwealth of Australia

INTELLIGENCE AND SECURITY

Royal Commission

Second Report

Presented by Command 25 October 1977

Ordered to be printed 27 October 1977

The Commonwealth Government Printer Canberra 1978

© Commonwealth of Australia 1977

Printed by C. J. THOMPSON, Acting Commonwealth Government Printer, Canberra

Part

A

B

c

D

E

SECOND REPORT

CONTENTS

INTRODUCTION .

THE NEED FOR A SECURITY INTELLIGENCE SERVICE AND SECURITY CHECKING

TERMS USED IN THIS REPORT

REASON FOR MAKING REPORT NOW

POLICY ON SECURITY CHECKING AND ASSESSMENTS

(a) Development of the policy on categories checked (b) Categories now security checked (c) ASIO's checking and assessments

should relate to security (d) The existing security checking categories are too wide . (e) Sensitive positions should be

designated (f) Respective responsibilities of the employer authority and of ASIO

(g) Constraints on the employer authority (h) Should security assessments include character information?

Para

1

7

20

30

35

35 42

46

52

57

62

71

76

1

3

8

14

16

16 22

24

28

30

32

38

41

Part

F

G

H

THE PRACTICE OF SECURITY CHECKING •

(a) Security checking statistics (b) The security checking procedure (c) Referee interviews (d) Defects that may arise in security

checking procedure (e) Problems faced in making a security assessment (f) The consequences of an adverse or

qualified security assessment •

A SECURITY APPEALS SYSTE.M

(a) Establishment of a security appeals system (b) Earlier consideration in Australia of proposals for a system of

security appeals (c) Security issues in other appeals, inquiries or reviews . (d) Arrangements in other countries

(e) Security and other problems which may arise from a security appeals system

THE SECURITY APPEALS TRIBUNAL

(a) Function of the tribunal (b) Retrospective operation • (c) The issue in security appeals . (d) Criteria applied by the tribunal . (e) Composition of the tribunal (f) Hearings of tribunal should be

in camera (g) Parties to proceedings before the tribunal (h) The employer authority's role

(j) Notification of appellant and institution of appeal to Security Appeals Tribunal

Para

85

85

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90

95

104

116

122

122

125

126 130

132

140

141 142

143

145 146

148

149 150

151

45

45

47

52

54

56

60

64

64

64

65 67

68

73

73

73 74

75

75

77

78

78

78

Part

J

K

(k) Interlocutory matters in security appeals . (1) Certificate by the Prime Minister (m) Applications for particulars in

security appeals . (n) Course of proceedings in security appeals . (p) Evidence in security appeals (q) Representation before the tribunal . (r) Publication of tribunal's findings

and evidence (s) Force of the tribunal's findings (t) Further consideration of findings by the Security Appeals Tribunal. (u) Compensation (v) Costs, witness fees and legal and

financial assistance. (w) Administrative support for Security Appeals Tribunal (x) Annual report .

LEGISLATIVE PROVISIONS TO ESTABLISH THE SECURITY APPEALS TRIBUNAL

FINDINGS AND RECOMMENDATIONS

(a) Categories of persons in Australian Government employment to be security checked (b) The contents of security assessments

(c) The respective responsibilities of the employer authority and of ASIO (d) Designation of sensitive positions (e) Constraints on employer authorities (f) The security checking process (g) The Security Appeals Tribunal

(h) Scope of these recommendations

(j) Effect of these recommendations (k) Publication of this report

Para

152 153

159

160 161 167

168 171

172 174

176

177 178

179

195

202

204

206

208

210 212

215

217 218

219

83

83

85

86 90

91

92

93

94

94

96

97

97

97

163

104

105

106 107

107

108

109

110

110

110

Part APPENDIX 2-A *

A

B

DEVELOPMENT OF POLICY ON CATEGORIES OF PERSONS TO BE SECURITY CHECKED .

REASONS FOR THE INTRODUCTION OF SECURITY CHECKING

DETERL"-IINATION OF THE CATEGORIES TO BE SECURITY CHECKED

APPENDIX 2-B

SECURITY CHECKING STATISTICS

Table No 1: Number of security checks for access to classified matter, 1970-1974 . Figure No 1: Number of submissions for security checking, 1970-1974 Figure No 2: Number of qualified and adverse reports, 1970-1974

APPENDIX 2-C *

SECURITY CHECKING FOR ACCESS TO CLASSIFIED M_;TT.t:R, submitted to the Royal by ASIO and known

as Document Al7 .

THE VETTING PROCESS

Security Checking Categories Types of Check •

SUBMITTING AUTHORITIES

INITIAL ASIO CHECKING PROCEDURE

Assessment Procedure .

* No t p u blishe d - see (k)

a t parag r a p h 2 1 9 .

Para

12

17 18

19

23

28

1

9

111

111

119

133

133

134

135

136

136 137

138

1.39

1 4 1

1 42

Part

CRITERIP.. . • • . • • • •

ADVICE TO SUBMITTING AUTHORITIES

CONCLUSION

}\.PPENDIX 2-D

PERSONP..L PARTICULARS • • • • • • • • • • •

APPENDIX 2-E

S0!1E DEFINITIONS OF "SECURITY RISK" • • • • • •

APPENDIX 2-F *

EARLIER CONSIDERATION OF PROPOSALS FOR A SYSTEM OF APPEALS

APPENDIX 2-G

APPEAL, INQUIRY AND "R.EVImv PROCEDURES AVAfLABLE-lJ2 -J DER TH-E l)UBLIC SERVICE ACT AND REGULATIO NS . . . . . . . . . .

A APPEAL AGAINST PROVISIONAL PROMOTION . . . .

B APPEAL AGAINST SELECTION FOR TEMPORARY HIGHER DUTIES . . . . .

c OBJECTION TO PROMOTION OR TRANSFER . . . .

D APPEAL AGAINST DEFERRAL OF INCREr•lENT

E APPEAL AGAINST INSTRUCTIONS

F APPEAL AGAINST OR REVIEW OF DISCIPLINARY ACTION . . . . . . . .

* Not publi shed - s e e ( k )

at parae raph 2 1 9 .

.

.

Para

30 145

34 148

37 150

151

152

158

1 165

2 165

9 169

15 171

17 172

18 172

19 173

Part Para Page

G INQUIRIES LEADING TO DISMISSAL BY GOVERNOR-GENERAL . 26 177

H REVIEW OF ANY MATTER NOT COVERED BY OTHER REGULATIONS 32 182

APPENDIX 2-H

OVERSEAS SECURITY REVIEW AND APPEALS SYSTEMS . 183

A THE UNITED KINGDOM 1 183

B THE UNITED STATES 7 185

c CANADA 15 192

D NEW ZEALAND 25 195

SECOND REPORT

A. INTRODUCTION

In this report, I deal with two matters. The first

relates to my third term of reference: 11 3. To make recommendations as to the procedures which should be introduced to permit review of administrative decisions affecting citizens, migrants and

visitors which were or may have been based on, or influenced byv reports or information of an adverse kind furnished by the

security intelligence services of the Australian Government.11

2 . That term of reference refers to "reports or

information furnished by the security intelligence services

of the Australian Government . " This report deals only with

reports and information in the nature of security assess-ments (as defined in para 23 below) provided by the

Australian Security Intelligence Organization (ASIO) which

is Australia's security intelligence service. The police forces of the States have special branches which to greater

or lesser extent are concerned with security intelligence

but ASIO is the only organization which by law carries the

responsibility of making security assessments.

3. I also consider in this report what classes of

persons are now and should be the subject of security checks

and assessments in connection with Australian Government

employment (as defined in para 20 below) .

2.

4. Persons are also security checked in connection

with applications to the Australian Government for visas,

passports and citizenship. I have called those the

"immigration cases". I have decided not to deal with these

cases in this report as I have not yet completed my

inquiries about the policies and procedures that apply to

them.

5. In addition I do not, at this stage, deal with

people in state or local government employment or in

employment in the general workforce. These people would

only come within the scope of my inquiry if they were

affected, directly or indirectly, by security checking carried out by, or security information coming from, an Australian Government authority or source. I deal in this

report with the situation of persons so affected who are employed or engaged under or in the carrying out of contracts

with the Australian Government. I shall deal in a later

report with the question whether there are any persons in state or local government employment directly or indirectly affected by Australian Government security checking or security information and any recommendations in relation to such a situation.

3.

6. I should say, hmvever, that the procedures I

recommend here would be capable of ready adaptation to the

situations and classes of persons mentioned in paras 4 and 5 above.

B. THE NEED FOR A SECURITY INTELLIGENCE SERVICE AND SECURITY CHECKING

7. Both matters which are dealt with in this report

presuppose the existence and continuance of a security

intelligence service and of a system of making security assessments about people to the Australian Government

administration.

8. My terms of reference require me to report in detail

on the security intelligence service which the nation should

have available to it. I shall deal in detail with this

matter in a later report.

9. In this report, however, I shall deal shortly with

arguments that have been put to me against an Australian

security intelligence service, and the nature of the evidence leading me to the conclusion that there should be such a

service.

10. ASIO was established in 1949 by administrative

action. It was given a statutory basis in 1956, by the

Australian Security Intelligence Organization Act 1956

4 0

(ASIO Act). ASIO's functions are set out in sS of the Act

as follows:

"5. ( 1) The functions of the Organization

are -

(a) to obtain, correlate and evaluate intelligence relevant to security and, at the discretion of the Director-General, to communicate any such intelligence to such persons, and in such manner, as the Director-General considers to be in the interests of security;

(b) to advise Ministers, where the

Director-General is satisfied -that it is necessary or desirable to do so, in respect of matters relevant to security, in so far as those

matters relate to Departments of State administered by them or to authorities of the Commonwealth established by or under Acts administered by them; and

(c) to co-operate with such Departments of State and authorities of the Commonwealth and, so far as is practicable, with such and authorities of the States and of other countries as are capable of assisting the Organization in the performance of its functions.

(2) It is not a function of the Organization

to carry out or enforce measures for security with­ in a Department of State or authority of the Commom.vealth."

The word "security" is defined for these purposes in s2 of

the ASIO Act as follows:

"'security' means the protection of the Commonwealth and the Territories from acts of espionage, sabotage or subversion, whether directed from, or intended to be

committed, within the Commonwealth or no.t".

5.

• 11. Therefore legislation now in force imposes on ASIO a duty to perform an investigative and advisory function in

respect of three specified matters. Apart from its

statutory functions in relation to espionage, sabotage and subversion, it has been performing and is continuing to

perform a function in relation to terrorism. Terrorism may

be subsumed under sabotage and subversion.

12. In relation to ASIO's counter-espionage function,

it has sometimes been suggested that Australia has no secrets which need protection, or which any foreign power could

wish to obtain clandestinely. My inquiries have satisfied

me that it does have secrets to protect, including secrets

which various foreign powers want to learn. These secrets

are not limited to matters of national defence or foreign

policy. They extend to matters relating to national resources

and the national economy.

13. Furthermore, evidence has been produced to the

Commission which establishes to my satisfaction that, in

the past, foreign powers have tried, by clandestine means,

to obtain Australian secrets. This evidence leaves me with

no doubt that similar efforts will be made in the future.

Obviously, I cannot argue the case by illustrating the

nation's secrets. But I can say that the disclosure of the more important of these secrets to an unfriendly power

6.

would greatly damage Australia's security, and that it has

taken little reflection to be satisfied that the Australian

Government should take special action in the interests of

the nation to protect them. Therefore I have no doubt that

the Australian Government should take steps to protect the

nation against espionage.

put to me to the contrary.

No serious suggestion has been

It follows that ASIO or some

other organization will have to continue to perform ASIO's

present functions in relation to espionage.

14. There would be little argument that ASIO or another

body should likewise continue ASIO's present function of

counter-terrorism and counter-sabotage.

15. Much of the criticism of ASIO, whether justified or

not, is directed to the exercise of its functions in

relation to subversion. Inevitably, from the very nature of subversion, the organization is then involved in matters

of a political nature. Submissions have been made that

ASIO's functions in relation to subversion should be dis­

continued. I shall consider those matters in a later report.

But, whatever recommendations I finally make, ASIO will

continue to have a duty to perform for some time all its

functions under present legislation.

7.

\

16. recommendations I make in relation to subversion

not my view about the necessity for the will

continuance\ by some organization of the functions of counter-espionage, counter-terrorism and counter-sabotage.

17. It has been suggested that, even if Australia does

have secrets which powers want to obtain, the

danger of a "secret" or "security" organization, whose duty

it is to protect them, outweighs the danger to the nation if they are not adequately protected. In the circumstances of some other countries, a nice judgement may be needed to

resolve the balance. Recommendations I shall make in this

and later reports will be directed to mitigating the risks

posed by the existence of a "security" organization.

18. Submissions have been made to the Commission that

ASIO's task or parts of it could be left to some other body

such as the Australia Police, the police forces of the

States, the departments holding the secrets, or the Defence Force. I am not attracted by these submissions, particularly

where the suggested body, unlike ASIO, has executive powers

(including powers of arrest) as opposed to merely investigative

and advisory powers. On the contrary, serious questions of

civil liberties could arise if any "secret police" organization were instituted. The prospect of a government

department, or of a number of departments, conducting counter-espionage operations against a foreign intelligence serv ice

8.

cannot be contemplated; or if it can, it does not suggest

any advantages to me, from the point of view either of the

nation, or of the citizen. I have accordingly come to the

conclusion that the appropriate security functions should

continue to be performed by ASIO, although I shall make

recommendations in a later report as to the nature of those

functions, and generally in relation to ASIC. But I am of

the view that ASI0 1 s functions should be limited, as they

are now, to the collection, evaluation and· dissemination of

security intelligence, the giving of advice relevant to

security, and matters ancillary thereto.

19. I am satisfied that a security intelligence service

should exist and continue as an important part of the

measures taken by government for the defence and security

of Australia, and that in performing its functions, it

should provide the Australian Government, in appropriate

cases, with its security assessments about certain people.

I am satisfied that ASIC is the appropriate body to make

the investigations and assessments which such a system

involves.

C. TERMS USED IN THIS REPORT

20. As will appear, I am primarily concerned in this

report with persons in "Australian Government employment". I use this expression in a wide sense, and treat the

following persons as being within its scope:

9.

persons employed under the

Public Service Act and

similar public employment statutes ; members of the Defence Force;

consultants or their staff

engaged by the Australian

Government;

persons working for contractors

for the Australian Government;

persons employed by certain

statutory organizations; all members of ministerial staffs; persons seeking any employment,

enlistment, commissioning ,

engagement or appointment in

the above groups.

21. I use the expression "employer authority" to refer

collectively to the heads of Australian Government public service departments and statutory organizations and the

Defence Force, and to Australian Government ministers in

respect of their staffs.

22. ASIO assists employer authorities by security

checking and assessing the suitability on security grounds

10.

of persons in Australian Government employment. I use the

expression "security check" to refer to the process of

check made by ASIO.

23. The expression "security assessment" will describe

the notification given by ASIO to the employer authority

of the results of the security check. The security assess­

ment does not bind the employer authority. It is advisory

only. In practice the advice takes one of these forms:

First, ASIO may advise that it has no information of an adverse security

nature concerning the person the

subject of the assessment.

Second, it may advise that it has

information of a security nature

about the person assessed

warranting a recommendation that

the person should not be allowed

access to classified security

material. (In this case, a short

statement of the general nature of

the information is provided) .

Third, it may advise that it

considers that the person may be

given access to classified security

material. At the same time ASIO

ll.

may provide information which it

will consider may justify an employer authority in taking a

contrary view.

24. In this report these three forms of advice (and

information) are called respectively:

Favourable assessments;

Adverse assessments;

Qualified assessments.

In section H of this report, in the discussion of procedures

which should be established in relation to security appeals,

a distinction is drawn between the assessment and the

supporting information.

25. Official information or matter may at present be

given one of four classifications. The Protective Security

Handbook lists them as Top Secret, Secret, Confidential and

Restricted. The Handbook defines the classifications as

follows:

Restricted

Confidential

"Official matter which requires special protection other than that determined to be Top Secret, or

Confidential."

"Official matter, the unauthorised disclosure of which would be prejudicial to the interests of the

nation."

Secret

Top Secret

12.

"Official matter, the unauthorised disclosure of which would case serious damage to the interests of

the nation."

"Official matter, the unauthorised disclosure of which would cause exceptionally grave damage to the interests

of the nation." [2-1]

26. Confidential, Secret and Top Secret matter is defined

by reference to "the interests of the nation". Restricted

matter is not. The former classifications are related to

the security of the nation. In this report they are called

"the security classifications". The Restricted classification

is related to the preservation of forms of confidentiality not specifically related to the security of the nation.

The distinction between the confidentiality of security

information and th£ confidentiality of other information is

discussed further at paras 46-48 below. In this report,

matter falling within the Confidential, Secret and Top Secret

classifications is called "classified security matter".

27. The term "matter" is a wider term than "documents"

or even Equipment may be included and so

may intangible communications.

2-1 Protective Security Handbook, 1966, "Authorised by the Pr1me M1n1ster 1 s Department", pp 7-9.

13.

28. I use the expression "access to classified security

matter or security areas" [2-2] to mean not only the ability

of a person to know or find out security information but

also simply the capability of being in or near certain

buildings or facilities needing special protection in the

interests of the security of the nation. It will readily be seen that saboteurs or terrorists should not only be

denied access to the ·nation's secrets but should also be

prevented from taking other actions to the prejudice of

the nation's security. Each employer authority must

continue to be responsible for identifying its own classified

security matter and security areas in the light of its own practical circumstances. Security areas should be narrowly defined.

2-2 The Defence (Special Undertakings) Act 1952-1973 provides for the protection of declared "special defence undertakings" by various means including the declaration of "prohibited" and "restricted"

areas and restrictions on persons given admission to such areas. The Approved Defence Projects Protection Act 1947-1973 provides for the protection of declared "approved defence projects" from boy­

cotts, hindrances and obstructions. The Atomic Energy Act 1953-1973 applies the Approved Defence Projects Protection Act to the works of the Atomic Energy Commission. The Crimes Ayt 1914-1975 makes

certain places "prohibited places" and creates offences in relation to such places. Document D32, presented to me by the Department of Defence, deals with the "Key Points System". Key points are there­

in described as "installations and facilities whose functioning is of major importance for a national war effort or for the maintenance of the life of

the community and which will, in an emergency, require protection against sabotage and espionage".

14.

29. The grades of security check carried out by ASIO,

and the level of access to classified security material

which the employer authority may authorise, relate to the

security classifications stated above. They are: Primary check:

Secret check:

Top Secret check:

"regular access to matter classified 'Confidential'", "regular access to matter classified 'Secret' and occasional access to matter classified 'Top Secret'". "regular access to matter classified 'Top

[ 2-3]

The nature and intensity of investigation by ASIO should

vary with the grade of security check. Most resources should

be deployed and deepest inquiries made for the higher grades

'of check.

D. REASON FOR MAKING REPORT Nm"l

30. Although the Commission has made considerable

progress in inquiries about all the relevant organizations,

more progress has been made in respect of ASIO than of the

others. I am not in a position immediately to make a full

report about ASIO and its operations. I believe, however, that my knowledge of it, its operations and their effect, is extensive enough to support the recommendations which I now make, although one is interim.

2-3 Doc Al7, para 18. Emphasis added. No mention is

made of matter classified Restricted.

15.

31. An inextricable part of any system of security

checks is the question what persons should be the subject

of those checks. A great deal of work is involved for

ASIO in security checking people for the Australian

Government. I am concerned, in the wider context of my

terms of reference, whether ASIO's resources expended on

security checking are used to the best effect. If not, the position should be put right as soon as possible.

32. There is also a civil liberties aspect to the

question. People should not be required to be security

checked, with the possibility of being the subjects of

adverse or qualified security assessments, unless there

is a clear need for such checking and assessment.

33. One reason why I am reporting on the need for a

security appeal system now is because, if justice demands

that such a system be established, it should be established as early as possible. Justice so demands not only in respect of persons who are presently the subject

of an adverse or qualified assessment, but also in respect

of those additional persons who, on past experience, it

must be assumed will be the subject of such assessments in

the future.

16.

3 4 . ILO Convention 111 (Convention concerni ng

discrimination in respect of employment and occupation )

outlaws discrimination in employment. It came into force

for Aus tralia o n 1 5 June 1974. Article 4 excepts from

thi s provision a person justifiably suspected of or engaged

i n activities prejudicial to the security of the state.

The e xception depends on the person having:

11

• • • the right to appeal to a competent

body established in accordance with national practice . "

It has consequently been put to me that : " . .. a s no appeal machinery as

envisaged by Article 4 exists in Australia at t h e present time, it

would appear ... that the Austral i a n Government is not yet in complianc e wi th its treaty obligations entered into in respect of Article 4 of ILO Convention No 111 ." [ 2-4]

E. POLICY ON SECURITY CHECKING AND ASSESSMENTS

(a ) Development of the policy on categories checked

3 5. I do not propose i n this report to describe the

events which led to decisions in 1948-49 to set up ASIO

and to give it the task of security checking public

servants and others. Nor do I consider it necessary to

describe some earlier preliminary and indefinite

arrangements in the post-war years when the Commonwealth

Investigation Service (CIS) performed some kind of a

2- 4 Department of Labor and Immigration , First Submis s ion , p4.

17.

security checking service in respect of some persons in or

to be appointed to the public service. An historical

account of the administrative aspects of security checking

appears at Appendix 2-A to this report. In my opinion, it

should not be published because it relates matters which

it would be prejudicial to national security to disclose. It is best to start this account at the time when, after

receipt of reports iri 1948 from the Minister for Defence and officials concerned in the matter, the Prime Minister

decided that certain measures should be taken to review

and strengthen security arrangements. One part of those

arrangements was Mr Chifley's direction, on 23 December

1948, that the CIS should security check members of the

public service. He said:

"Action should therefore now be taken to have all officers, Service or civilian, who handle Defence information and documents of Secret and Top Secret classification, security checked by the Commonwealth Investigation Service of

the Attorney-General's Department. As opportunity offers, all members of the Services and all civilian officers of the Service and associated Departments

should be checked." [2-5]

In due course ASIO, which was then in course of being set

up, took over these duties from the CIS.

2-5 Letter from Prime Minister to Ministers, 23 December 1948, para 3; (copy provided by ASIO in response to aide memoire on Doc Al7, para 5. See

also PSB file S48/4 F45 for list of Ministers to whom the letter was sent) .

18.

36. On 13 May 1949, the Prime Minister approved the

following principles governing the nomination of persons

to be submitted for security check: 11 (a) Security Service should 'vet' only those persons having or who may have

access to information classified as top secret or secret.

(b) To enable this to be done the

Departments concerned should submit lists of persons having or who may have access to such information.

(c) If in any Department it is

difficult to limit the persons having or who may have access to such information it may be necessary to 'vet' the whole staff of that Department. (d) Any question as to the persons

to be 'vetted' (either those in

a Department or applicants for the Public Service) is to be decided by me or the Chairman of the Public Service Board.

(e) 'Vetting' is to be confined to

the security aspect, so that normally [ASIOJ will not be concerned to ascertain whether a person has a criminal record. If an inquiry of that nature is necessary, and does not affect security, it can be made by Commonwealth Investigation Service. 11 [2-6)

The above classes of persons for vetting were proposed to

the Prime Minister by Mr Justice Reed, the first Director-Genera 1 of .J\.S I 0 .

2-6 Letter from Director-General of ASIO to Prime Minister, 7 November 1949, para 3; (copy provided by ASIO in response to Commission's aide memoire on Doc Al7, para 7).

19.

37. Arising from these principles, the following classes

of persons were agreed by the Solicitor-General, Director

CIS and the Director-General of ASIO, to be subject to

security checking:

"(a) Commonwealth officers handling top secret and secret information;

(b) Candidates for appointment to the Public Service; ... " . (A

number of other categories was listed, but they related to "immigration" matters). [2-7]

38. In his letter to the Prime Minister, Mr Justice Reed

also said:

"It is beyond question that Common­ wealth officers having or who may have access to top secret or secret material should be thoroughly vetted.

It has been conceded that the work of some Departments - or sections of them - is such that all persons

employed therein should be vetted. In many cases, however, arrangements can be made to ensure that only certain persons in a Department

shall have access ...

Applicants for employment, if they will or may have access to top

secret or secret material, should of course be also thoroughly vetted. But many others need not be vetted at all and in many instances it will

be sufficient if they are vetted only against can be

taken to ensure that a person

2-7 Ibid, para 15.

20.

accepted for employment without vetting, or who has been vetted only against records, is not placed in another position where he will or may have access to

top secret or secret material ... ". [2-8]

39. The new Government set up a Cabinet Committee on

Security Policy, which met on 16 February 1950. According

to reports of the Decision, the Committee approved at that

meeting the following security checking categories:

"(a} those having access to secret or top secret defence information;

(b) persons who have attained the age of 20 years whom it is

intended to appoint permanently to clerical or professional positions in the Third ·Division of the Public Service;

(c) such temporary employees in professional positions as the [Public Service] Board considers should be vetted; and

(d) aliens whom the Board considers should be vetted." [2-9]

40. An element in the 1950 decision which should be

noted is that it added to all those with access to Secret

or Top Secret matter (the criterion proposed by Mr Justice

2-8 Ibid, paras 17-18. Emphasis added. 2-9 Text provided by ASIO in response to Commission's aide memoire on Doc Al7, para 9(b) ; memorandum from Chairman, PSB to ministers 2 March 1950, para 3.

21.

Reed) the further category of the bulk of new entrants to

the third division of the public service. These people

might or might not have access to classified security

matter. The effect of that decision was to look forward

to a time when virtually everyone in the third division

would be security checked. That is, the criterion for

checking was confirmed as being not only access to Secret

and Top Secret matter but employment in a particular range

of positions, many of the occupants of which might never

need to have any access to such matter.

41. Second, it should be noted that the checking

procedures were stated to be applied for access to "Top

matter. No mention had been made of

the Confidential or Restricted classifications. Rather

the files of the time refer many times to access to Secret

and Top Secret matter as the criterion for security check-ing. Later, however, on 6 February 1953, the Cabinet

decided:

2-10

11

(3) that persons about whom the Australian Security Intelligence Organization has some doubt should not have access to classified material. 11 [ 2-10]

cabinet Decision 648 of 6 February 1953; (quoted by ASIO, Doc Al7, 11). Emphasis added.

22.

(b) Categories now security checked

42. A search of official papers provided to me has not

revealed evidence of any further formal decisions on this

matter by governments in office since the 1953 decision

quoted above. The categories of persons submitted for

checks have remained essentially the same, although some

of the definitions have been slightly varied from time to

time.

43. At present, according to ASIO,

"The following categories of persons are submitted to ASIO for security check:

(a) persons under consideration for employment upon duties requiring access to classified matter; (b) persons under consideration

for employment in security controlled (Defence) areas;

(c) applicants for entry to the Armed Forces;

(d) applicants for appointment to the second and third divisions of the Australian Public Service." [2-11]

With regard to category (d), persons appointed by the

Governor-General to the first division of the public

service may or may not be members of the public service

before their appointment. If they should be "outside"

2-11 Doc A40, para 1.

23.

entrants, the practice has been for them to be security checked, usually before appointment. Thus this paragraph

might more completely read: "Applicants for appointment

to the second and third divisions, and persons in

contemplation for appointment to the first division, of

the APS". Note also that the categories have been taken

to refer now to all applicants for entry into certain

parts of the public service, not, as earlier, persons whom

it was proposed to appoint to such positions.

44. For persons to be recruited to the APS, the

categories of persons to be checked have been more

particularly listed by the PSB: "Categories of Staff Checked

(a) All appointees to Second and Third Division checked to Primary level.

(b) In selected cases, by arrange­ ment with departments and ASIO, higher level checks as follows -Civil Aviation : Examiner of

Airmen Airways Surveyor)Secret Inspector of Air) Safety )

Foreign Affairs: Foreign Affairs )T op Secret Officer Class 1) Stenographer Secret (c) In special cases where high level access is involved immediately on appointment,

departments may submit reasons for higher level checks.

24.

Fourth Division Staff

Applicants for employment/appointment in the Fourth Division are normally not listed for security check unless the position concerned involves access to classified information. Depart­ ments are required to submit reasons

to the Board for wishing to have Fourth Division recruits submitted for checking." [2-12]

45. Two separate criteria are applied in deciding what

classes of persons should be subject to security check. The first criterion is "access to classified matter"; the

second "employment categories". The numbers of persons

included in the latter category have tended to increase

with the development of a practice of checking applicants

for jobs rather than successful candidates for appointment.

(c) ASIO's checking and assessments should relate to security

46. ASIO can only perform security checking and provide

security assessments in the performance of its statutory functions, which are laid down in s5 of the ASIO Act and

quoted at para 10 above. Its functions of obtaining,

correlating and evaluating intelligence are limited to intelligence "relevant to security". The Director-General may communicate such intelligence if he thinks doing so v10uld

2-12 PSB, First Submission, attachment A.

25.

be "in the interests of security". The word "security" is

defined for these purposes in s2 of the ASIO Act as follows:

"'security' means the protection of the Commonwealth and the Territories from acts of espionage, sabotage or subversion, whether

directed from, or intended to be committed, within the Commonwealth or not".

The system of security checks is directed to protecting the

security of the nation. It is only justified by the need

to ensure that protection.

47. Security checking is not concerned to protect all

the varieties of confidentiality which may arise in the

affairs of the Australian Government. It is limited to the confidentiality of matter the disclosure of which, or of information concerning which, could be regarded as an act

of espionage, or could lead to or aid the commission of

acts of espionage. Whether one seeks the. meaning of "espionage" as used in the ASIO Act in the provisions of

the Crimes Act 1914-1975 or not, it is apparent from the

purposes and context of the ASIO Act that it involves

spying for a foreign power, or activities which will

result in the possession by a foreign power of information concerning classified security matter. The word "security",

as defined in the ASIO Act, and the expressions used in

s78 of the Crimes Act, both suggest that the knowledge of

24774177-2 i'r

26.

or access to classified matter, or the access to security

areas, would be such that knowledge or access by unfriendly

powers or persons could prejudice the safety or defence of

Australia. Since, in certain circumstances, matters of finance, economics, resources or trade may have a relation

to the nation's safety or defence, they may fall within one

or other of the Confidential, Secret or Top Secret

classifications (the security classifications) described in the Protective Security Handbook.

48. It is within the competence of the Australian

Government to establish any system of security classification

it desires. It may be that "the interests of the nation"

by which the security classifications are to be judged is

a somewhat wider concept than the "security" with which

ASIO is concerned; this is a matter to which I shall return

in a later report. However the confidentiality with which ASIO is concerned when making its security assessments is

the confidentiality I have described above, and is quite

distinct from the confidentiality of matter which has no security importance, but which needs to be protected or kept private for other reasons, for example to maintain

the integrity of a contracts tendering system or to protect

the privacy of individuals, as matters of public policy,

or because of the provisions of a statute, as eg. the

27.

Income Tax Assessment Act 1936-1975. In these cases the

normal employer considerations apply, and no question of

a security check arises on that account alone.

49. Article 1.2 of ILO Convention 111, quoted at para

34 above, which outlaws discrimination in employment,

provides that:

"Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination."

It follows that to exclude from positions of access to classified security matter or security areas, people assessed as unfit for such access not constitute discrimination

under the Convention. If, however, people are excluded

from positions not involving such access, discrimination

would occur,because the exclusion would not be based on the

"inherent requirements" of the particular job. [2-13]

50. The system of security checks sould be limited

accordingly. Persons should be submitted for security

check only if they will have, or may reasonably be

expected in the near future to have, access to classified

security matter or to security areas.

2-13 The Department of Labor and Immigration in its advice to me has this construction of the effect

of Article 1. 2. (Letter from Department of Labor and Immigration to Royal Commission on Intelligence and Security, 5 December 1975, paras 2 and 3).

28.

51. ASIO should not include information in security

assessments unless it assesses that information as relevant

to security, as that term is used in s5 of the ASIO Act.

That is, ASIO should not include information in its assess-ment unless it assesses that the information will make it

easier to judge the degree of risk of espionage, sabotage, subversion or terrorism that would be involved in allowing

the person the subject of the check, access to classified

security matter or security areas. Where . ! use the

expression "relevant to security" in this report in the

context of the contents of security assessments, I shall

do so in the above sense.

(d) The existing security checking categories are too wide

52. The submitting of applicants coming within categories

(a), (b), (c) and (d) of para 43 has the result that

some people are security checked who are not even successful

(on non-security grounds) in their application to enter

Australian Government employment.

53. ASIO has suggested to me that the requirement to

security check category (d) in para 43 above "arises from considerations of administrative convenience in facilitating diversion of staff

29.

to positions requiring no access to classified matter ••• [2-14]

54. I am, however, satisfied that a sizeable

proportion of people in the third division have no

access at all to classified security matter or

security areas and no need, or likely need, for any

such access. [2-15]

2-14 2-15 Doc A40, para 3.

According to fig.ures supplied by employer authorities in response to my inquiries made on 19 February l975,only a small number of organizations have a requirement for constant

and regular staff access to information of highest security classifications. Listed below are the organizations which have replied, according to the categories they

considered themselves best fitting: (a) "Constant and regular access needed to information o£ highest security grading" (b) "Access needed only in particular field

or fields to sensitive classified information" (c) "Occasional or rare access to sensitive information" (a)

Defence

(b)

Attorney-General's Labor & Immigration Manufacturing

(c)

Aboriginal Affairs Agriculture Capital Territory Education

Environment &

Foreign Affairs Prime Minister & Cabinet Special Minister

of State Treasury

Industry Northern Australia (Northern Territory) Overseas Trade

Postmaster-General's Services & Property

Some of the employer authorities have since been reconstituted

Conservation Health Housing & Construction Media Minerals & Energy

Northern Australia (Northern Development) Police & Customs Public Service Board Repatriation &

Compensation Science & Consumer Affairs Social Security Tourism & Recreation Transport Urban & Regional

Development

30.

55. Applicants for appointment to the second or third

division of the APS and persons in contemplation for

appointment to the first division should not be checked

on that account alone until it is virtually certain that

they will be appointed to a position in which they are

reasonably likely to have access to classified security

matter or security areas in the near future.

56. To check other applicants and employees strains

ASIO's resources unnecessarily and is objectionable from

a civil liberties viewpoint.

(e) Sensitive positions should be designated

57. Employer authorities, employees, and applicants for

employment should know whether a particular position

involves access to classified security matter or security

areas. A tradition of calling departments "safe" or

"sensitive" has grown up. This tradition should now be

formalized and developed in an appropriate way and positions

involving such access should be designated as "sensitive".

[ 2-16]

2-16 One possible objection to this course would be that it contravenes ILO Convention 111 which is quoted at para 34 above. My examination of the Convention and advice from the Department of Labor and Immigration

indicate that it does not. (Letter from Department of Labor and Immigration to Royal Commission on Intelligence and Security, 5 December 1975, para 7).

31.

58. In considering the ways effect might be given to

the above recommendation, the PSB said:

"The decisions as to which particular positions/areas, for which a condition of occupancy would be an appropriate level of security clearance, are seen

as being ones for Ministers as advised by their Permanent Heads. Given that the Government carries the final responsibility for national security

the Board doubts whether the decision of a Minister as to the need for a

clearance and the level of clearance should be appealable to a body outside elected Government. There may be a case for some machinery to exist for

the Prime Minister to review Ministers' decisions, to ensure consistency across the Service." [2-17]

59. These matters relate to procedural questions

go beyond my terms of reference. The principle to be noted,

however, is quite clear. People should be able to find out

whether occupying a particular position in Australian

Government employment will require them to be security

checked. Whether particular positions in departments,

"areas" or "divisions" of departments, or whole departments

should be designated, are matters for consideration by

others than me.

60. I addressed a questionnaire to departments and

asked them to indicate whether they saw themselves as

"safe" or "sensitive". The replies are summarized in the

2-17 PSB, Second Submission, para 16.

32.

footnote to para 54. It seems to me that it might be

appropriate to designate all positions in departments

under (a), "areas" of departments falling under (b),

and individual positions within departments listed under

(c). These are, however, matters of procedure for the

Public Service Board and other employer authorities to

attend to.

61. I shall, however, refer expressly to the situation

of members of ministerial staff, because this matter has

been specifically brought to my notice. It seems to me

that, sinceCabinet and other highly classified matter is distributed to ministers and all staff may have access to it, the occupants of all positions on ministers' staff should be security checked at Top Secret grade. Therefore I have

come to the conclusion that all positions on ministers'

staff should without exception be regarded and designated as "sensitive". [2-18]

(f) Respective responsibilities of the employer authority and of ASIO 62. Each employer authority has responsibility for the

general working of its organization, including responsibility

for personnel matters. At the same time, it must be

2-18 I note that Mr Whitlam as Prime Minister directed that all members of his ministers' staff should be checked to the highest grade. (Letters from Prime Minister to Minisfers, 17 July 1975. See also Prime Minister's press conference transcript, 15 July 1975).

33.

recognized that there are constraints on the powers of

employer authorities . (They are discussed at paras 71-75 below). Further, the responsibilities of permanent

heads of departments, particularly those related to hiring

and firing, are complemented and limited by those of the

PSB as central personnel authority.

63. The employer authority is responsible in all

respects for ensuring proper protection of classified

security matter held by its organization. In organizations

in which any employee can have access to classified security

matter or security areas, the decision to hire is itself a

decision involving security considerations. Many employ-ment decisions, however, do not involve security

considerations, because no question of such access is

involved.

64. The basic responsibility of departments in matters

of personnel security is spelt out in the Protective Security

Handbook. It says:

"Responsibility of Departments

1. Heads of Departments are responsible for determining the areas and matter which are to be regarded as classified; that is, the areas and matter requiring

special protection in the interests of national security ... Heads of Departments are also responsible for deciding whether an employee is or is not a suitable

person to have access to such classified areas or matter, and for ensuring that effective measures are taken to prevent unsuitable persons obtaining such access.

34.

Security Assessments

2. The Australian Security Intelligence Organization assists Departments by the suitability on security

grounds of employees, or applicants for employment, for the position or the access proposed."

Para 2 is qualified by the following note:

"A favourable security assessment (security clearance) issued by the Australian Security Intelligence Organization must be understood as

a notification from the Director­ General of Security that on the date of the assessment he was not in possession of information which warranted an objection on security

grounds to the individual concerned for the purpose stated in the request for the check. A security clearance does NOT absolve the Head of the Department from the

responsibility of deciding, on the basis of all the information available to him, including the security assessment, whether to grant or refuse access." [2-19]

65. It will be seen from s5(2) of the ASIO Act that it

is not a function of ASIO to carry out or to enforce

measures for security within a Department of State or

comparable authority. ASIO does not in fact perform such

a function. The provisions of sub-s (2) underline the

present position of ASIO as a security intelligence

organization. The Prime Minister of the day, in introducing

the ASIO Bill, said:

2-19 Protective Security Handbook, op cit, p4. Emphasis added.

35.

"The organization has no police function. It is not concerned with matters which are the province of a law enforcement

body ... It cannot itself take or

institute any executive action which is not of a purely advisory nature. It cannot direct any department of State as to the

measures for security which it ought to adopt. It cannot

interfere in the administration of a department." [2-20]

66. The security assessment advice received from ASIO

is often loosely and misleadingly called "giving" (or refusing to give) a "clearance". The use of this terminology

has led to two important misapprehensions.

67. The first is the failure by many people, including

employer authorities, to distinguish between ASIO's security

assessment on the one hand, and the decision to allow access,

which the employer authorities must make, on the other.

Under the present system, an adverse assessment should not

2-20 CPO, House of Representatives, 24 October 1956, pl747. A similar provision to sub-s (2) of the ASIO

Act is contained in the US National Security Act 1947, as amended, which set up the CIA. Section 102 (d) (3) provides that "the Agency shall have no police, subpoena, law-enforcement powers, or internal­

security functions".

... ....

36.

result in automatic refusal of access any more than a favourable assessment should automatically result in a

decision to allow access.

68. The second misapprehension is that a "clearance",

given in respect of access in, for example, one department,

is often assumed to be "portable" to another department when the person concerned moves to that other department.

This assumption is strengthened by the fact that present

practice is to make a security check a "once-for-all" affair.

There is no regular system of resubmission of persons for

further check.

69. A distinction must be drawn between the decision

to grant access, on the one hand, and the decision to

employ, on the other. The PSB has illustrated its under-standing of the distinction in the following statement:

"On the basis of ASIO's assessment of suitability for access to classified material, consideration is given by the Board as to whether

the person is a f i t and proper

person appointment. An adverse

assessment does not automatically lead to refusal of appointment but, where appointment doe s proceed, it can affect initial placement in the Service, ie placement can be made

in a 'safe' area or Department." [ 2-21]

2-21 PSB, First Submission, pa ra 12.

37.

The PSB's need to be satisfied that an applicant for appoint-ment to the public service is "a fit and proper person" is

imposed on it by s34(c) of the Public Service Act 1922-1975.

That section was enacted in 1960. Before it was introduced

a serious doubt existed whether the PSB could refuse an

applicant for appointment on security grounds alone.

Security considerations are taken into account by the PSB

in deciding whether an applicant is "a fit and proper

person". The Board has stated that it

"considers that it should retain the right of decision as to who is a fit

and proper person for employment in the Australian Public Service in the light of all the information available to it, including the security report

provided by the security organization." [ 2-22]

The Defence Act 1903-1975, under which members of the Defence

Force serve, is more specific. Section l23F states:

"A person shall not be permitted to serve in the Defence Force if -(a) that person has been

convicted of a crime that, in the opinion of the Chief of Naval

Staff, the Chief of the General Staff or the Chief of the Air

Staff, as the case

requires, is such as to render that person unsuitable for service in the Defence Force; or

2-22 PSB, Second Submission, para 26.

38 .

(b) the service of that

person in the Defence Force might, in the opinion of the Chief of Naval Staff, the Chief of the General Staff or the Chief of the Air Staff, as

the case requires, be prejudicial to the security of Australia."

70. The intertwining of "access" and "employment"

categories of persons submitted for check, and the

provision by ASIO of security assessments in the "employ-ment" category where no access to classified security

matter or security areas is involved, has blurred the

demarcation between the responsibilities of ASIO and

those of employer authorities. It has led to complaints

that ASIO has been performing the functions of an employment agency. Perhaps these complaints arise from

the inclusion with security assessments of information

which appears to be of an employment rather than of a

security nature. Security assessments should not be a

substitute for normal employment inquiries by employer authorities about prospective employees.

{g) Constraints on the employer authority

71. Some public employer authorities face particular

constraints in trying to meet their obligations for

security of their organizations. In some cases, people

39.

can be moved around within the organization, thus avoiding

the placement or retention of people who are the subjects

of adverse or qualified assessments in sensitive jobs.

This situation applies in the Defence Force, where the

service has the right to move a serviceman from job to job.

Similarly, a minister can hire and fire his own personal

staff. Consultants and contractors have a similar right but, on the other hand, they may face contractual constraints

or other difficulties in the field of industrial relations.

72. It is not so easy for the permanent head of a

department. Under the provisions of the Public Service

Act, a person cannot be compulsorily transferred from one

position to another in the same department without a right

of appeal. Moreover, a permanent head of a "sensitive"

department cannot transfer a person whom he regards as a

security risk to a "safe" department. He may ask the PSB

to arrange such a transfer, but the PSB itself has no

power to effect a permanent transfer arbitrarily . It must

first obtain the agreement of another permanent head to accept the officer. Should the officer for cogent reasons

object to transfer, he may apply to the PSB for permission

to decline. Should the PSB f1nd that the objection is not

well founded, it may direct the officer to transfer.

40.

73. Further, the right to dismiss a person who has

achieved permanent public employment is not readily

available to employer authorities.

74. One permanent head summed up the he faces

this way: "The law withholds from him the right to dispose of employees whom he believes to be untrust­ worthy on his interpretation of

' security' • " [ 2-2 3]

75. Both the permanent head who wants to discharge his

responsibilities for security to the best of his ability and the officer, who may never get to know officially what

is held against him, have cause for dissatisfaction with the present uncertain arrangements. The existence of an

appeals tribunal should clear the way for a permanent head

to move an officer within a department compulsorily if the

permanent head reaches a decision on security grounds that

he should do so. Whether a similar power should be

available with regard to inter-departmental transfers is a matter on which I am not prepared to make a recommendation

at this stage.

2-23 Doc Dl7, para l(a).

41.

(h) Should security assessments include character

76. The "character", or "personality", of a person is

a clearly relevant consideration for employers. Thus

these are matters needing attention by the PSB in the

course of recruitment and by permanent heads, Chiefs of

Staff, statutory organizations and ministers in respect of persons in their

77. "Character" may also be a consideration for the

security service. The unpleasant fact is that unfriendly intelligence services try to make use of so-called personality defects to blackmail, coerce or otherwise induce people to give away secrets to which they have or

have had access. The risk is something for assessment by

the security service in the course of its investigation

of each person submitted for security check.

78. ASIO has described the relationship between

"security" questions and "personality" questions this way:

"The decision by a department to grant or refuse access to classified matter to a person is made on the basis of all the

information available to it including the result of a security check by ASIO. The information on wh1ch the department's decision is made must be considered in

two parts:-

42.

(a) 'security' information, which is that concerning association with persons or organizations involved in espionage or with

ideologies which may make adherents susceptible to recruitment by a foreign intelligence service; (b) 'personality' information which

is concerned with:-(i) activities which may be exploited by a foreign intelligence

service because they are illegal or may be regarded as discreditable; and (ii) personality traits

which indicate an exploitable defect in reliability.

2. In vetting for access to matter

classified-up to Secret level depart­ ments request checks of ASIO and police indexes. Personality information in departmental records or otherwi3e available may be taken

into account by the departments. For access to Top Secret matter the negative results of such checks are supplemented by positive enquiries.

3. The positive enquiry procedure for access to highly classified matter is a security requirement of certain international agreements to which Australia is a party. That

requirement is based on experience of exploitation by foreign intelligence services of human frailties which led to the British Conference of Privy Councillors on Security to report in 1956 -

'The Conference recognised that today great importance must be paid to character defects as factors tending

43.

to make a man unreliable, or expose him to blackmail, or influence by foreign agents'." [2-24]

79. The view is put by ASIO that it has "no special

competence" to assess how personality traits may be

exploited. It has found some difficulty in seeking to

make these evaluations and feels it lS more appropriately

a matter for permanent heads and other employer authorities

when reaching a decision "on the basis of all the information

available" to them.

80. On the other hand, departments have put to me the

view that they do not have

" ... the specialist intelligence expertise to make informed judgements about whether people are likely or not to be security

risks. This kind of evaluation requires professional experience in knowing what to look for in

applicants' records, together with professional knowledge of espionage techniques, and is a function which ASIO is specially

equipped and trained to perform." [2-25]

81. Besides the risk that so-called personality defects

may be used to blackmail or coerce people to divulge

secrets, there is also a simpler aspect to the problem. A

person who is careless or indiscreet can otherwise qualify

2-24 2-25 Doc A41, paras 1-3. DFA, Doc F7, para 18.

44.

as presenting no security risk; but if, on account of his

carelessness or indiscretion, he is, or may be, unreliable,

the first assessment must be revised. ASIO should make

what mquiries are needed to find whether there are any

such factors of a security kind and should make the

appropriate inquiries of the subject's present and previous

employers including Australian Government departments,

statutqry authorities and the Defence Force. In many cases ASIO might need to interview the I shall

recommend further on this matter in a later report.

82. If an employer authority has information on the

character and personality, or other aspects, of a person

either in its employ or who is an applicant for such

employment, which it has obtained as his employer or

prospective employer and which it considers is or may be

relevant to security, it should inform ASIO. ASIO is and

should be treated by employer authorities as the

Australian Government's specialist on security checking

and assessment.

83. It may be found necessary for ASIO to increase its

capacity in this area b y , for instance, recruiting

psychologists and additional investigatory staff. These

are matters for furth e r attention.

45.

84. As I have already stated, ASIO's statutory charter

does not extend to providing or seeking information where

ASIO does not assess it as being "relevant to security".

Indeed ASIO may have no legal right to pass on to anyone

at all, information about a person unless it has assessed that information as relevant to security. It should include character and personality information in its security

assessment when, but only when, it assesses that information

as relevant to security. It should indicate that the

information is relevant to security in terms unmistakably

clear. [2-26]

F. THE PRACTICE OF SECURITY CHECKING

(a) Security checking statistics

85. On average, about 69,000 security checks have been

made in each of the past five calendar years. A precise

2-26 The Canadian Royal Commission on Security r eached a similar conclusion. They found that "the concept of departmental responsibility has been extended to support the position tha t the RCMP should not be

asked to advise forma lly on the significance of the information it provides . The ostensible rationale for this attitude is somewhat mystical". The Commission concluded: "We agree that the final

responsibility for decision-making must rest wi th the departmental authorities; we neverthe l ess believe that the Security Service s hould have a d uty to provide meaningful advice to help with the decision,

and that it should do this not only by p r oviding as

full information as possibl e but also by commenting on the importance and significance of the informa tio n it provides and by mak ing forma l recommendations concerning clearance." (Abridged Report , 1969,

paras 93-94).

46.

breakdown for the period 1970-1974 is given in Appendix 2-B

to the report. By far the greater number have resulted in

favourable assessments. An investigation of a very large

sample of the files of persons who were given adverse or

qualified assessments over the last five years shows that

an average of about 70 persons failed to obtain favourable

assessments in each year. [2-27]

2-27 The greater number of the persons failing to obtain favourable assessments were people applying for appointment to the public service or the Defence Force. Most of the remainder were persons already within the public service or Defence Force. A breakdown from the sample investigated shows that, of a total of

364 adverse or qualified assessments issued by ASIO, the grading of security checks requested, and the organization or department submitting the requests for checks were as follows:

Organization/Department -------------------···- ..... -·······-···--·----- -··· ... Defence (including Defence Force) Public Service Board Other departments Statutory bodies Total Security Grading Total qualified

or adverse assessments

p s TS No %

40 72 15 127 34.9

108 119 32.7

110 30.2

8 2.2

---- - - ·-·-·-·-··-·--·--···---- - - --- . -··· --· ------ ------------

47.

86. Since the system of security checks has operated

at least since 1949, there is by now a considerable number of persons, either within or outside Australian Government

employment, who have been the subjects of adverse or

qualified assessments. On past experience it must be assumed that the total number of such persons will

accumulate year by year.

(b) The security checking procedure

87. Details of the procedure followed by ASIO in security

checking persons submitted for checking by employer

authorities have been provided to me. They are set out in Appendix 2-C to this report which, in my opinion, should

not be published, because it describes in detail measures

of counter-espionage, counter-sabotage and counter-subversion.

The following summary of the procedure does not omit any

significant elements in the process: (i) First the person the subject of the

check submits a "personal particulars"

form (reproduced at Appendix 2-D to

this report) . This gives details such as the members of his close

family, his work, where he has lived

and so on.

(ii) In the case of the higher grade

checks, the person has to give

the names of three referees whom

48.

he has known for some time and

who are not connected with his

present work.

(iii ) On receipt of the form, ASIO checks the personal particulars

against its indices of persons

who have come to security

notice. The other persons

whose names have been given on

the form are also similarly

checked. In addition, procedures

are designed to establish with

certainty that the person(s) on ASIO's files are the same

as the person(s) on the

"particulars" form. Inquiries are also made against police

records in the higher grades

of security check.

(iv) If all these inquiries are clear,

an appropriate assessment is

notified to the sponsoring department or authority.

49.

88. Should derogatory security information emerge, the

process of assessment is as follows:

(i) The first task to set out all

the information which has emerged

about the person, together with

the various sources of that

information. This task is done

at the ASIO desk level. Many of

the sources of information will

be secret.

(ii) The next step is to assess and

evaluate the information.

Formal processes to decide

credibility and reliability of each item of information are

the stock-in-trade of security

intelligence services, and ASIO has designed processes considered

appropriate to its own operations.

If considered necessary, field inquiries [2-28] debriefs of sources of information, and so

on, are also instituted and the

results collated in due course.

2-28 These field inquiries are of a limited kind and do

not seem to be comparable with inquiries of the same description carried out in Canada and the US. More extensive inquiries are made in the case of adverse traces.

50.

(iii) In the light of all this information, a proposal is formulated. It takes

the form of advice which might be

passed to the employer authority.

(iv) That proposed advice is then checked

for protection of sources of

information and cleared.

(v) It is a requirement within ASIO

that several senior officers in ASIO should endorse or review

the proposed assessment before it

is issued. (vi) The security assessment is then

provided to the employer authority.

The form assessments take was

described in para 23 above.

89. Apparently following a review by ASIO of security

arrangements for handling adverse and qualified security

assessments provided to departments, the following

conditions were set out by the PSB in 1972 for the handling

of summaries of information supporting such assessments:

(i) they shall remain the property

of ASIO;

51.

(ii) they shall not be copied or

passed to another department

without prior ASIO approval;

(iii) they shall be classified Secret, and accorded

appropriate protection;

(iv) they shall not be placed on

ordinary staff files;

(v) they may be made available

within departments only to

designated officers on a

strictly need-to-know basis; (vi) they shall not be allowed to

reach the persons the subject

of them, or any sponsors or

referees, or any other unauthorised persons;

(vii) they may be retained by a

department only while the

person concerned is employed

within its jurisdiction, and

thereafter shall be returned to ASIO;

(viii) they shall be accounted for at all times and should be

52.

appropriately recorded for

this purpose. [ 2-29]

(c) Referee interviews

90. I have said that people submitted for the higher

grades of security check are required to provide the names

of three referees. Whether or not they are interviewed

depends on ASIO's judgement. Normally, at least one or

more of them will be interviewed. On the other hand, the

applicant for check will not be often interviewed. It has

been submitted by ASIO that

"The conduct of referee interviews by ASIO officers creates the main interface between ASIO and the public. It is a sensitive and

controversial area of operation which has inevitably led to criticism. Possible alternatives to the current procedure are for the enquiries to be conducted by the Public Service Board, the Australia Police Force or the departments themselves."

[ 2-30]

91. A further point is that information obtained by

referee interview will usually be "personality" or "character" information of a kind which, however relevant

for general employment purposes, will often not be relevant

2-29 Memorandum from Secretary of PSB to departmental security officers, Security checking procedures and protection of secur1ty 1nformation , 23 May 1972; (copy provided by ASIO as Doc Al7, appendix G).

2-30 Doc. A4l,para 8.

53.

to security. It has therefore been submitted by ASIO that

some other authority should handle referee interviews.

The employer authority itself has been suggested as

appropriate. It could conduct any interviews it may

consider necessary for general employment suitability assess­

ment.

92. It seems to me that the information of relevance to

security to be obtained by ASIO from interviewing referees

is hardly ever enough to justify the trouble and expense. I am informed by ASIO that security information of any

interest is only obtained from fewer than 1% of referees interviewed.

93. I have reached the conclusion, therefore, that ASIO

should make rather less use of referees and should be

prepared more often to interview the subject himself in

cases of doubt. A questionnaire directed by ASIO to each

referee might suffice in most cases. ASIO should conduct

interviews only when it judges advisable for security

purposes. If employer authorities want referees' reports

for general employment purposes. that is their business,

and they should carry out the interviews to the extent they

consider necessary for the position concerned.

54.

94. Finally, questions have been raised in submissions

whether someone acts as a referee for ASIO purposes

should be indemnified in relation to anything derogatory he

may say. The point is far from clear, particularly when

the derogatory statement concerns third persons. I am

considering it further.

(d) Defects that may arise in security checking procedure

95. The making of a security assessment is the final

step in the security checking procedure that begins with

the collection of information from various sources by

various means. The information may or may not have been

collected because ASIO knew a security check and assessment

was required . Except for Top Secret checks it appears

uncommon for ASIO to collect information specifically

because a security check and assessment has been sought.

96. Information once obtained must be put into a form

suitable for storage by ASIO, and is processed in various ways. It is then stored. When a security check is sought

it must be taken out of storage and evaluated in the checking procedures described above.

97. Clerical errors can occur in the recording, storing

and retrieval of information. They may result in some or

all of the information which should be available, being

55.

overlooked. They may result in unrelated information being

taken into account by mistake.

98. Errors of fact can occur. Some events including

conversations are reported to ASIO by agents and sources.

No witness is infallible. He may not observe the entire

incident, and obtain an unbalanced picture or perhaps fill the omission, either consciously or unconsciously, by

imaginative reconstruction. He may misinterpret or

misunderstand. He may misunderstand the answer to a

"leading" or a "compound" question. He may make mistakes

in identification. He may forget, and omit, or reconstruct,

perhaps inaccurately. The case officer to whom he reports

may misinterpret or misunderstand what he is told. He may

forget some or all of what he is told before he records it.

99. In turn the case officer's report may be mis-

interpreted or misunderstood at the time when a security assessment is being prepared.

100. Each time information is transmitted from one

person to another, mistakes can happen. The report of the

information relied upon for security checking purposes, and

that contained in the security assessment may, because of

56.

changed substance or form, bear a meaning or significance

not attributable to the original information.

101. Similar defects can exist where ASIO officers

interview referees. In addition, referees (and sometimes

agents) are called upon to make judgements which may or

may not be good judgements.

102. Agents and referees may even deliberately exaggerate

or mislead.

103. Because of the defects that may arise in the

present system, a review of the security checking process

is needed. Such a review goes to the functions and role

of ASIO more centrally than is my intention in this report.

In a later report, I shall deal with the system of

investigation and reporting as a whole.

(e) Problems faced in making a security assessment

104. The process of making a security assessment about

a person is, and must be, adjudicative. The security

service has the difficult and unenviable task of evaluating

all the information before it and reaching a firm conclusion.

57.

105. ASIO's information, even if accurate, will rarely,

if ever, be complete. It can be led into error by the

erroneous and incomplete nature of the material on which

it makes its assessment.

106. Just as courts of law and others who evaluate human

behaviour make errors of judgement, so may ASIO. ASIO must

assess not only past behaviour; it must make an assessment

of likely future behaviour.

107. The courts have evolved a complex process of checks

and balances over the years designed to filter out errors

of fact and judgement in administration of the law. The

process which results in the making of a security assessment

partakes in large measure of the nature of a judicial

Inevitably, checks and balances will be needed just as, inevitably, mistakes will occur.

108. I have therefore inquired closely into how ASIO

goes about reaching its assessments. I received a detailed

report from the organization on the procedures it follows and I have examined, with the help of my staff, many

hundreds of actual files of cases where adverse or qualified

assessments were issued.

24774/77- 3

58.

109. As well as looking at the procedures, I have paid

some attention to the criteria which are applied in

reaching an adverse assessment in relation to a person.

I am not at this stage making any recommendations about what

the criteria should be. Appendix 2-E to this report sets

out some statements governments have made about what they

have considered to be the characteristics or associations

of a person which may be held to constitute him a "security

risk". That is, what the security intelligence service should consider in reaching its security assessment of

individuals.

110. The major criteria have been whether a person is,

or recently was, a member of a communist or fascist or

similar party, or improperly associated with a foreign

intelligence service. Membership of, or support for, a terrorist or similar group will also carry a presumption of security interest. To these may be added an assessment

of certain "character" or "personality" aspects which may

in some cases be of relevance to the total security

assessment. I have dealt at paras 76-84 above with the

difficult questions which arise in this latter connection.

lll. The task of making security assessments is not

easy. Actual cases are rarely black or white.

59.

the degree of association with a particular organization,

and the security relevance of that association, requires

fine judgement often on the basis of inadequate or

incomplete information.

112. A favourable assessment carries an implied

recommendation that it is safe for the person concerned to

have access to classified security matter and to security

areas. The risk of an oversight or of the under-evaluation

of a particular piece of derogatory security information

is a very real risk for security intelligence services. Equally, "being on the safe side" can result in unfairness

and worse to the individual.

113. It should also be obvious that a security intelligence

service must be alert to look for things about people which,

if they are indeed security risks, they may wish to conceal. The hardest job of a security intelligence service is to

try to see through cases of dissimulation without infringing the civil liberties of the citizen. Unfriendly intelligence

services are well aware of this difficulty and do not

hesitate to exploit it.

114. It is not a function of this Commission to report

whether any information or advice given by ASIO in particular

60.

cases was wrong. But the inspection of hundreds of files

and the examination of numbers of witnesses, including

officers of ASIO, have satisfied me that some security assessments it has provided may have been wrong.

115. This conclusion is no more a criticism of ASIO or

its officers or of the way in which they carried out their investigations or made their assessments than the system

of judicial appeals is a criticism of courts or judges.

All investigations and judgements about persons and their

actions can involve mistakes. ASIO and its officers are

no exception.

" ..• just as normal legal processes occasionally lead to injustices, so will security procedures." [2-31]

I have concluded that, like the decisions of courts and

judges, ASIO' s security assessments should be subject to an

appeals system.

(f) The consequences of an adverse or qualified security assessment 116. Evidence from departments indicates that

communications problems can exist when ASIO transmits its

security assessment to the employer authority. ASIO should make quite clear whether it is making a favourable assess-

2-31 Canadian Royal Commission on Security, Abridged Report 1969, para 83.

61.

ment, a qualified assessment or an adverse assessment.

The information which is provided should be expressed

quite unambiguously. Employer authorities should be made

familiar with the form and import of each kind of assess­

ment. Standard basic forms should be used : one for

qualified and another for adverse assessments.

117. ASIO's securityassessments are advisory. Employer

authorities can accept or reject the advice they contain. They can take account of or ignore the information that

supports it.

118. I have not been able to determine accurately what

proportion of adverse and qualified assessments resulted in

action prejudicial to the persons the subjects of the

assessments because it has not always or uniformly been the

practice of employer autho rities which receive ASIO's security assessments to inform ASIO of the decision they reach after consideration of those assessments. And employer

authorities have not always kept records in a form to enable them to retrieve this information.

119. However, if an adverse assessment is followed, the

career of the person the subject of the assessment may be

gravely and permanently prejudiced. As the Canadian Royal

Commission on Security said:

62.

"Whatever arrangements are made to provide data and advice, at some point a decision to grant or with­ hold clearance must be made on each

individual case. This decision involves estimating the possible future behaviour of an individual on the basis of his past history. The process is difficult enough in the case of an applicant for employment, when the sole admin­ istrative effect of an adverse decision will be the refusal of

employment, or the selection of another individual from an eligible list. It is even more difficult

if it relates to a person already

employed, when an adverse judgement may lead to transfer, non-promotion, inhibition of career, suspension or even dismissal, and, what is more, may involve the department in a

lengthy train of administrative negotiations and difficulties concerned with hearings and reviews." [ 2-32]

In the case of the Australian Public Service, the PSB said:

120.

"A security report can affect a person adversely in two ways. Firstly, as a result of a report

an applicant/employee may be refused appointment or employment, or an employee's services may be terminated, or an officer may be denied transfer or promotion.

Secondly, an applicant/employee may be accepted, for appointment or employment but limited in the range of departments or areas open to him, that is he may be

placed in a 'safe' area." [2-33]

Even if the employer authority does not act in

accordance with an adverse security assessment given by

2-32 2-33 Abridged Report, 1969, para 95. PSB, Second Submission, para 12.

63.

ASIO, a knowledge of that assessment will remain with a

number of officers of the employer authority. The

employee's reputation has been affected and there remains

a considerable potential for future prejudice. The same

is true of qualified assessments.

121. Among the records I have seen are cases where an

adverse assessment has been acted upon, and where a

mistake of fact or of judgement may have been made. If

such a mistake is made, a grave and permanent injustice

may be done to the person the subject of the assessment,

whether or not the assessment is followed by the employer

authority.

64.

G. A SECURITY APPEALS SYSTEM

(a) Establishment of a security appeals system

122. Although the form of any system of appeals

involves a number of questions on which I am not yet

ready to report finally, a system of security appeals

should be available as soon as possible to persons

who consider that they have been, or may be, unjustly

the subject of an adverse or qualified assessment

provided by ASIO.

123. Some other important questions also remain.

I am not yet ready to report finally on the possibility

of appointing a person to check ASIO security assessments

before they are communicated to the employer authority.

124. I shall also report later whether any criteria

should be laid down to be applied in all or in particular

classes of cases; and the question whether any criteria presently applied in making a security assessment should

be varied. An appeal tribunal should not, however, be

bound by any existing criteria.

(b) Earlier consideration in Australia of proposals for a system of security appeals

125. A brief history of government consideration of

this matter appears in Appendix 2-F to this report. In my view Appendix 2-F should not be published as it deals

with advices given in the past to former governments in

confidence. Here I simply note that the successive

Directors-General of ASIO have put their views to

65.

ministers. Most submissions have favoured a system

not unlike the British "purge procedure" and at all

times concern has been expressed about the protection

of the confidentiality of sources of information.

(c) Security issues in other appeals, inquiries or reviews

126. There are alre.ady in existence under the

Public Service Act and Regulations a number of avenues

for appeal, inquiry or review of personnel decisions

affecting members of the public service which might involve a security issue. A note on the principal

avenues is to be found at Appendix 2-G to this report.

In brief, they cover:

(a) provisional promotion, sSOr reg 109,

reg 108B (1) ;

(b) selection for temporary higher duties,

reg 116;

(c) promotion or transfer, reg 111;

(d) deferral of increment, s3l;

(e) instructions, reg 33;

(f) disciplinary action, s55, s56, s82AA;

(g) dismissal by the Governor-General

following an inquiry and report by the

Public Service Board, s94(2); and

(h) any matter not covered by other

regulations, reg 6.

66.

127. Appeals procedures are also available to

the staffs of some statutory bodies, but the terms

and conditions of these staffs are not uniform, and

appeals procedures consequently vary a good deal

from one to the other. The recently-established

Australian Postal Commission and Australian

Telecommunications Commission, which formerly

comprised the Postmaster-General's Department, have

comprehensive, formalised appeals processes as

wide-ranging as those of the Australian Public

Service.

128. Persons in Australian Government employment

and others may refer allegations of discrimination

to the Committees on Discrimination in Employment

and Occupation which were established in 1973 by the

Australian and State Governments to give effect to

the provisions of ILO Convention 111, which is

referred to at paras 34, 49A and footnote 2-16 above. The Department of Labor and Immigration has suggested

to me that security issues could arise before such

committees. The findings of those committees are

not binding on the Australian Government or on any

person. In any event, the Security Appeals Tribunal,

when established by the legislation I propose, would

provide the appropriate tribunal of inquiry for the

Convention so far as it touches on matters concerning

the security standing of Australian Government

employees.

67.

129. A person who is the subject of an adverse or

qualified security assessment could be affected in his official employment in such a way that an appeal

under one of the above provisions could be lodged.

Recommendations as to the way in which any

jurisdictional problem thereby created should be resolved are made at para 171 below.

(d) Arrangements in other countries

130. Most modern countries, including countries

with democratic constitutions, have security

intelligence services whose functions include the giving of advice or the making of decisions

concerning the security of persons in government

employ or service where they have access to classified

security information.

131. Security appeals systems have been instituted

or provided for in some countries, including the UK,

the US, Canada and NZ. In these countries, there has

been discussion about the need and practicability of

establishing such a system. The nature and procedures

of any tribunal to be established as part of such a

system, so as best to reconcile the requirements of

security and the rights of individuals have also been considered. Brief descriptions of the systems in those

countries are at Appendix 2-H of this report.

68.

(e) Security and other problems which may arise from a security appeals system

132. It will be apparent from the accounts of

previous Australian study of this matter, and of

experience overseas, that the central problem has

always been the difficulty of reconciling the needs

and rights of the state with the needs and rights

of the individual.

133. These needs and rights necessarily GOnflict

in many areas. A principal role of the law and of

legislators has been to reconcile these conflicts. Many sharp conflicts must arise in any system of

appeals against security assessments. The form of

the appeal and the nature of the appeals tribunal

and its procedures must be such that the national

interests are substantially secured, and that the interests of private citizens are prejudiced as little as possible. 134. Perhaps national interests will have to be

somewhat prejudiced by any system of appeals against

security assessments. This prejudice will be minimal if the appropriate procedures are adopted. I discuss the more important procedural matters that I believe

should be adopted in section H of this report. The

understandable desire of individuals to have all the

rules of natural justice applied to security appeals

must be denied to some extent, unfortunate though

this may be. The extent of the denial may vary in

69.

different cases. I do not think, however, that a

security appeals system in which the appellant always

had the right to hear all the evidence and to cross­

examine all the witnesses, without restriction, would

be either possible or desirable. In some cases, it

may not be possible to inform the appellant of the

whole of the cases him, although he must

always be told as much of that case, and all the

rules of natural justice must be applied as fully as

is consistent with the national interest.

135. The most common difficulty in any appeal

against a security assessment is the protection of

intelligence sources. In the case of criminal proceedings, it has been public policy to try to

protect police sources. It is similarly critical in most security cases that the identity of persons

providing information to ASIO is not disclosed.

This identity has been jealously guarded. Its

protection is usually the basis of its continued existence. Further, protection of sources serves

to guarantee to other agents that they can confidently

continue to give information. If this protection is

to be maintained, despite the existence of an appeals

system, it will be neceSsary for the tribunal

to be able to allow eviderice to be given in the absence

of the appellant or his representatives, to be able to

disallow cross-examination, and to admit hearsay

evidence. Indeed, the description of some material

70.

relied upon to su9port an adverse or qualified assessment may be such as to identify the source. It may therefore

be necessary to limit or totally to prohibit the giving

of information in relation to that material to the appellant.

These propositions derogate the rules of natural justice,

but they have been proved necessary in other countries which

respect those rules. They are justified, and are only

justified, by reference to the security of the nation.

136. In some cases, in addition to the T)rotection of

sources, the security issue involved in the case may be so

sensitive that to give any information concerning it to the apDellant will be impossible. This situation would not

arise in many cases. But it is apparent that counter­ espionage or counter-intelligence considerations may preclude

the giving of any warning by \vay of notification to a person

that he is the subject of an adverse assessment. Such a

?reposition cuts more across the rules of natural justice

than do the nropositions described above. But it too is

justified by the same considerations.

137. Information from ASIO's overseas liaison services

may cause special but most of these can be overcome

within the procedures I recommend below, including in very

sensitive cases, the use of Prime Ministerial certificates. If, however, ASIO has made use of such information in its security assessment to an employer authority, it should

71.

normally be possible to inform the subject of the general

nature of the information, so that he can meet it, although

evidence as to its source may have to be given in the absence

of the subject. While that may allow the subject to infer

that the information is from an overseas liaison service, the employer authority would be in a position to draw the

same inference, and any other course would give to

uncorroborated hearsay evidence an unchallengeable authority

to which it might not be entitled and which may cause grave

injustice to the subject.

138. An objection which may be raised to a system

of appeals is that the authority and standing of the

Director-General and of ASIO would be affected, and that

this result may be reflected in the efficiency of the organization. [2-34] I do not think that it can be

supported. Indeed, so f a r from prejudicing the Director-General or the organization, an appeals syste m will h e l p

to remove from the Director-General and ASI O the criti cism

which perhaps naturally results from the s e cre c y o f a

system of security assessme nts which ma y advers e l y a f fect

the whole career and life of an Australia n citize n.

139. A further obj e ction whi c h may be r a i s e d t o

a syste m of appeals is that i t inte rfe r e s wi t h the

discre tion of e mp loye r autho r i t ies. The functi o n o f

ASIO is t o i nfo rm and advise , a n d pe r ma n e nt head s ,

2- 34 That obj e ctio n has no t been p u t to me b y the

p r esent Dire ctor-Ge n e r a l o r h i s p r e d e c e sso r .

72.

the PSB, and Defence Force officers do not have to act

on the information they are given. Strong submissions

have been made that the ultimate discretion should

always be left to the employer authority. Very strong

arguments have also been put in support of the view that

the finding of an appeals tribunal or, subject to any

appeal, the ASIO security assessment on a person in

Australian Government employment, should be binding.

The question resulting from this difference of view

is important and difficult. I wish to consider this matter further and I recommend that, at this stage,

the status guo should remain and the ultimate

responsibility be left with employer authorities. In a later report I shall deal with the issue whether

a system of binding security assessments should be

instituted, if given by an appeals tribunal, or whether given by ASIO or an appeals tribunal. I shall then have

to give very careful attention to this objection.

73.

H. THE SECURITY APPEALS TRIBUNAL

140. It follows from what I have said in the pre-

ceding section that there are a number of procedural

matters which must be provided for if a security Appeals

Tribunal is to operate satisfactorily.

the more important ones discussed.

(a) Function of the tribunal

The following are

141. The function of the tribunal should be to

review ASIO's adverse or qualified security assessments,

and either confirm them or vary them, in whole or in part.

It should also review all supporting information, and where appropriate, confirm, vary and/or add to that inform-ation. The tribunal's function should not be to review any decision made by an employer authority, whether on the

basis of a security assessment or not, or to review inform­

ation provided to employer authorities by people other than

ASIO. A person the subject of an adverse or qualified

security assessment should be entitled to appeal against it, whether or not he can show that he has been prejudiced by some decision subsequently taken because of the security

assessment. The fact that he is the subject of an adverse

or qualified assessment should give him locus standii to

appeal, and to have the appeal heard and decided.

{b) Retrospective operation

142. A great number of adverse and qualified assess-

ments have been passed to employer authorities b y ASIO since

it was established in 1949. Many of them have b een a c t e d

74.

upon. For persons who remain in Australian Government employ­

ment, these security assessments, if incorrect, may remain a

potential source of injustice in their careers. Even if the subject of such an assessment did not enter Australian Govern­

ment employment, or if he has nm.v ceased to be in Australian

Government employment, his reputation has been affected, not

merely within the internal records of ASIO, but also to the

knowledge of senior Australian Government officials. The

adverse effects, actual or potential, of these assessments will

vary from case to case and often will be diminished by the

passage of time. ' Overseas experience suggests that there may

not be many of these cases where the person involved will want

to take any action about it, but justice requires that a

person whose reputation has been unjustly affected in this way

should be entitled to apply to have his name cleared and should

be entitled to seek to have the record put right. When ASIO

looks again at some of these cases, it may decide that it

should not oppose the appeal. However, any person who has been

the subject of an adverse or qualified assessment provided by

ASIO to an employer authority at any time in the past, should,

if he so desires, be entitled to appeal against that assessment and to have his appeal adjudicated upon, even if ASIO does not

oopose it. I call these the "retrospective cases".

(c) The issue in security appeals

143. The issue for the tribunal should be to find

wh e ther or not ASIO's security ass e ssment should, in the

light of all the evide nce b e fore the tribunal, b e confirme d or varied. If it should be varie d the tribunal should, in

effect, redraft the assessment, including, wh e r e

75.

the supporting information. Where appropriate it should

vary the supporting information even though it confirms

the assessment.

144. The issue in retrospective cases should be whether

the security assessment was based on correct facts and was

reasonable at the time that it was provided, rather than at

the time of the appeal. In dealing with retrospective

cases the tribunal should be entitled to look at evidence

of matters occurring or existing after the making of the

assessment, but only in so far as they are relevant to the

issue before the tribunal.

(d) Criteria applied by the tribunal

145. I will not in this report review the criteria

which have been adopted by ASIO in making its assessments.

I am able to say that while criteria which have been adopted

in the past, whether by precedent or by direction, should be

taken into account by the Security Appeals Tribunal, it

should not be bound to apply any of those criteria, but

should be free to act as it thinks proper. It should be

free so to act both in reviewing future assessments and in

reviewing retrospective cases.

(e) Composition of the tribunal

146. The tribunal will be reviewing a security assess-

76.

ment made by ASIO. It will be seeking to elicit the truth,

and where the facts so require, to achieve a balance between

the interests of the state and the rights of the appellant.

Such a tribunal should comprise persons of standing and

experience in the community. At least one, the chairman,

should be a judge. The other members must also be persons

who have the confidence of both government and opposition

parties, the security service and the nation. They should not be persons in present Australian Government employment.

To do otherwise might give an appearance of bias to the

tribunal.

147. The tribunal hearing an appeal should comprise

three persons, of whom one, the chairman, should sit on

every appeal. The second member of the tribunal should be

a former public servant or Defence Force officer (depending

on the nature of the appellant's employment) who has been

appointed to the tribunal. He should be a retired senior

public servant in cases where the appellant is a member of,

or has applied to be appointed to, the public service, or

is not a member of, or an applicant for membership of the Defence Force; and he should be a retired senior officer

of the Defence Force in cases where the appellant is a

member of, or has applied to become a member of, the Defence

Force. The third member of the tribunal should be selected

by the chairman from an appointed panel comprising persons

with no present or substantial past connection with the public

77.

service or the Defence Force and who have a reputation and

standing in the community that will ensure public confid­

ence in their integrity. (War-time or compulsory service

should not be regarded as a disqualification).

(f) Hearings of tribunal should be in camera

148. An important question of principle arises as to

whether hearings of the tribunal should be open to the

public, or in camera, or heard in a manner determined, as

to whole or part of a case, by the tribunal. I have reached

the view that the hearings should be in camera, with the

tribunal having a discretion to publish its findings. The more important reasons for my conclusion as to hearings

are:

(a) The appellant has a right to privacy and to the

protection of his reputation. (b) The protection of sources can be better assured

when hearings are private.

(c) The procedural limitations which completely public

hearings are likely to require would make the appeal

less satisfactory from the appellant's point of view.

(d) The advantages of leaving the matter to the discretion

of the tribunal are outweighed by the disadvantages

of having to go from one form of hearing to another

as occasion requires, and the possible conversion of

appeals into procedural arguments rather than sub­

stantial hearings.

78.

(g) Parties to proceedings before the tribunal

149. The person who is the subject of the adverse or

qualified assessment should be the appellant. As to the person whose duty it is to support the assessment, I have considered a

number of alternatives, but the most suitable of these persons

is the Director-General of Security. It is not a question of naming a formal respondent. The nature of the tribunal is such

that formal processes are not appropriate. The

Director-General's role should not be that of a party in

adversary proceedings. His duty should be to place before the

tribunal all relevant material, whether favourable or unfavourable,

and otherwise to assist it in coming to a just conclusion. It

does not follow that the Director-General would be present at

all hearings; it may be appropriate or necessary for him to be present in some cases but normally he would appear by one of

his officers, or by a legal representative.

(h) The employer authority's role

150. In every case in which an appeal is made to the Security

Appeals Tribunal, the employer authority or prospective employer

authority should be notified and its views should be heard if it

wishes to put them.

(j) Notification of appellant and institution of appeal to Security Appeals Tribunal 151. (i) Any person who, in the future, is the subject of

an adverse or qualified assessment should within

a specified time be notified by the Director-

2-3 5 2-36

79.

General of the general nature of the assessment

and of the supporting information, except to

the extent that the notification of the

assessment and/or of the supporting information

or any part of it is excluded by a certificate

given by the Prime Minister [2-35] or to the

extent that the Director-General decides that the

supporting information or any part of it, should

not, in the interest of security, be notified.

Any persons receiving such a notice should be

entitled to appeal to the Security Appeals Tribunal. There should be no time limit on the

lodging of appeal s, subject to one proviso.

Security assessments may be provided in relation

to an application for an employment promotion,

transfer or appointment. If the person the sub j ect of an adverse o r qualified asse ssment prov ided b y

reason of such an application intends to appea l

against the security assessme nt and t o rely o n t h e

findings of the tribunal on a ppea l in r e latio n t o

the particular application f or promo tion, tra n sfer or appointment, h e s hould b e r equired t o l odge the

a p p e al against the securi t y asse s sment with in a

spe cified time. [2- 36 ] The tribuna l s h o uld cause

notice of any appea l to b e g i ven t o t he Director-

Gene ral, and to the emp l oyer autho rity . As to the se c e rtific ates , s ee para s 1 53 - 158 .

It i s intende d that if an a p peal is n o t made within the

spe cifie d time , the a p pellant, i f s uccessful , wou l d n o t

b e able to disturb, fo r exa mp l e , t h e a p po i ntmen t of an­

other person wh e r e the appel l ant' s fai l ure to obtain the

a p pointme nt was bas ed wh o lly or partly on t h e security assessme nt.

80.

(ii) Any person who, in the future, unsuccessfully applies to enter Australian Government employment

and any person who, in the future, is or has been

in Australian Government employment and who con­

siders that he was or may have been or may be

prejudiced in his application to enter that employ­

ment, by an adverse or qualified assessment, although

he has no notice of the same, should have the right

to appeal to the Security Appeals Tribunal. Upon

the lodging of such an appeal, the tribunal should

give notice to the Director-General and to the em­

ployer authority, and the Director-General should

within a specified time give to the Security Appeals

Tribunal particulars of any adverse or qualified

assessment in respect of the relevant person, and

of the information supporting that assessment,

ject to the effect of any certificate the Prime Minister might give prohibiting or restricting the

giving of those particulars and information, and

subject to the right of the Director-General to

withhold notification of any supporting information

which he considers should not, in the interests of

security, be given to the appellant. The Security Appeals Tribunal should thereupon give the relevant

person such notice of the nature of the assessment

and of the information supporting it as any certif­

icate of the Prime Minister and the notification of

81.

the Director-General permits.

(iii) Any person who was in the past the subject of an

adverse or qualified assessment need not be

notified of that fact or of the supporting inform­ ation. Any person who unsuccessfully applied to enter Australian Government employment and any person who i .s now or was in the past in Australian

Government employment and who considers that he was

prejudiced in his application to enter that employ­

ment, or in his career in that employment, by an

adverse or qualified assessment should have the

right to appeal to the Security Appeals Tribunal. Upon the lodging of such an appeal, the

tribunal should give notice to the Director-General and the employer authority, and the Director-General

should within a specified time give to the Security

Appeals Tribunal particulars of any adverse or

qualified assessment in respect of the relevant person, and of the information supporting that

assessment, subject to the effect of any certificate

the Prime Minister might give prohibiting or restrict­

ing the giving of those particulars and information,

and subject to the right of the Director-General to

withhold notification of any supporting information

which he considers should not, in the interests of

security, be to the appellant. The Security

Appeals Tribunal should thereupon give the relevant

82.

person such notice of the nature of the assessment

and of the information supporting it as any certif­

icate of the Prime Minister and the notification of the Director-General permits.

(iv) In any case where the Director-General receives

notice of an appeal in any matter in respect of

which the Prime Minister issues or has issued a

or the Director-General decides or has

decided that supporting information should not be

notified to the person the subject of the assess­ ment, the Director-General should within a specified

time furnish the tribunal with a copy of the cert­

ificate and/or particulars of the decision, and of the facts or matters the subject of the certificate

or decision. No notice of any such certificate of

the Prime Minister or of any facts or matters the

subject of it should be given by the tribunal to

the appellant at any time. No notice of any such

decision of the Director-General or of any facts

or matters the subject of it should be given by

the tribunal to the appellant until after the deter­

mination of any application for particulars made by

the appellant, and then only to the extent decided

by the tribunal in that application.

(v) Any person who has lodged an appeal should be en­

titled to proceed with it even though he has not been notified that he has been the subject of an

adverse or qualified assessment, subject to the

83.

right of the tribunal to refuse to hear appeals which it considers to be vexatious or frivolous.

(k) Interlocutory matters in security appeals

152. There should be no pleadings. The appeal should

be instituted by the filing in the office of the Security

Appeals Tribunal of a simple notice of appeal, and the

tribunal should notify the Director-General of the instit­ ution of the appeal. The tribunal should have power to

deal with any interlocutory matter that may arise, includ­

ing any application for particulars, which are discussed

below. It may, in special cases, be found necessary to

take evidence overseas, and the tribunal should have powers

to make any necessary orders for this purpose.

(1)

153.

Certificate by the Prime Minister Generally the tribunal, by exercising its discretion-ary powers, should regulate its procedure to prevent dis­

closure to the appellant or any other person of information

which should not, in the interests of security, be disclosed

to him.

154. However, neither the tribunal nor ASIO should have

a discretion not to notify a person that he is, in the

future, the subject of an adverse or qualified security

assessment. The Prime Minister alone should be entitled

to veto notification, and then only if he certifies that

84.

that course is necessary in the interests of the security

of the nation. He should give this certificate in his

character as leader of the government, and not as the

minister administering the ASIO Act or any other legis­

lation.

155. There may be other instances in which the govern-

ment may consider that some information or the contents of

some document which might otherwise be disclosed to the

appellant or some other person is of such an important or

sensitive character, from a security standpoint, that it is imperative that there should be no discretion in the tribunal to disclose it to the appellant or any other person.

In such instances the Prime Minister should be entitled to

veto disclosure, where, in his capacity as leader of the

government, he certifies that that course is necessary in

the interests of the security of the nation.

156. Certificates of the Prime Minister should not be

reviewable by the tribunal. A copy of all such certificates

should be filed with the tribunal, and a statement of the

general nature of the information, or a copy of the docu­

ment the subject of them should be lodged with the tribunal,

and taken into account by it on the appeal (if any).

157. The ·tribunal should do all the things necessary to

ensure that the information is not, or the contents of the

documents are not, disclosed to any person other than a

85.

member of the tribunal as constituted for the purposes of

the proceeding, and, in the case of a document produced

to or lodged with the tribunal, to ensure the return of

the document to the person by whom it was produced or

lodged.

158. Bringing the Prime Minister into the case would

be unusual and would only occur where the facts took the

case altogether out of the usual class of cases involving

the personal security of the particular individual. These

would be cases where the government regards the issue as

unarguable and orders as to non-publication of evidence

would offer no remedy to the harm that the nation would

suffer. The government should, of course, trust the tribunal no less than it trusts the Director-General of Security.

(m) Applications for particulars in security appeals

159. The appellant should be entitled to make an applica-tion to obtain particulars of any security assessment made

in respect of him, and to obtain particulars or further

particulars of the information on which the Director­ General relies to support the assessment. Subject to any

certificate of the Prime Minister, the tribunal should notify the Director-General of the application for particu­ lars. If the Director-General refuses to provide the appellant with particulars sought by the appellant which

86.

are not covered by a certificate of the Prime Minister,

the tribunal should hear the Director-General and the

appellant separately. The tribunal should then decide

what further particulars (if any) should, consistently

with the interests of justice and security, be given to

the appellant. The tribunal should notify the appellant

of those further particulars (which should already be

held by the tribunal pursuant to para 15l(iv) above).

(n) Course of proceedings in security appeals

160. The nature of security review proceedings involves

the adoption of different practices to those that are

adopted by other appeals tribunals. At times there have

to be departures from the rules of natural justice. Bal­

the requirements of security and the appellant's

rights, I think that the Security Appeals Tribunal's procedures upon the hearing of an appeal should be as

follows:

(i) The evidence of the Director-General should be

tendered first, and should include all material

relevant to the security assessment, whether

favourable or unfavourable to the appellant.

(ii) Evidence of matters the withholding of which from the appellant has been confirmed by the tribunal

or which are the subjects of a certificate of the

Prime Minister should not be given in the

appellant's presence. Other evidence should be given in the appellant's presence so far as

87.

consistent with the requirements of security. (iii) The tribunal should have a discretion to direct that the name and identity of a witness be not

given to the appellant, whether the witness is

an officer of ASIO or not. The tribunal should,

subject to any Prime Ministerial certificate, also have a discretion to give the appellant

such particulars of evidence given in his absence

as are consistent with the requirements of security.

(iv) The tribunal should then hear any submissions or

evidence which the employer authority may wish to

place before it.

(v) Next, the appellant should tender his evidence.

The Director-General or his representative should

be present when this evidence is being tendered,

save to the extent that the tribunal otherwise

directs in order to protect the privacy of the appellant or a witness, or to ensure that the pro­

ceedings are, and appear to be, conducted fairly.

(vi) The tendering of any further evidence by either

party should be in the discretion of the tribunal,

and should be subject to the same qualifications

as are referred to above.

(vii) The tribunal should have power to call of its own

motion any evidence it thinks appropriate. Which

of the parties, if any, are present when any such

evidence is tendered, should be in the discretion

88.

of the tribunal, and decided according to the

principles set out in sub-paras (ii) and (v)

above.

(viii) Cross-examination by a party of any witness heard in the presence of that party should be allowed,

if and to the extent that the tribunal considers proper. It should be limited to matters specified

to and allowed by the tribunal. The tribunal

should take special care that any limitations it

imposes are observed by the cross-examiner, and

should have a discretion to disallow any question,

whether within the area of the limitations or not.

The practice in the United States of America is discussed

in Appendix 2-H. [2-37]

2-37 In Greene v. McElroy Chief Justice Warren, deliver­ ing the opinion United States Supreme Court

in relation to the exclusion from access to class­ ified security information on security grounds, said that:

" ... where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While

this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of indi­ viduals whose memory might be faulty or who,

in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, preju­ dice, or jealousy. We have formalized these

24774177-4

89.

(ix) If a party is, or may be, handicapped by the

nondisclosure to him of confidential

information or by lack of opportunity to

cross-examine witnesses, the tribunal should

take that fact into consideration.

(x) No question of burden of proof should arise.

The tribunal should take that course which it

thinks is proper in the light of all the

materials before protections in the requirements of confront­ ation and cross-examination ... Professor Wigmore, commenting on the import­ ance of cross-examination, states in his

treatise, 5 Wigmore on Evidence (3d ed. 1940) 1367: 'For two centuries past, the policy of the Anglo-American system of Evidence has been to regard the necessity of testing by cross­

examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the

conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sub­ limated by that test, has found increasing strength in lengthening experience.' Little need be added to this incisive summary

statement except to point out that under the present clearance procedures not only is the testimony of absent witnesses allowed to stand without the probing questions of the person under attack which often uncover

inconsistencies, lapses of recollection, and bias, but, in addition, even the members of the clearance boards do not see the informants or know their identities, but normally rely on an investigator's summary report of what the

informant said without even examining the investigator personally." (360 US 474, 496-499). Chief Justice Warren then gave examples from the inquiry in Greene's case of each of the defects which he listed.

90.

it. It is sometimes said that the nation should

always have the benefit of any doubt, but this

is to import into a special type of proceeding a general concept which may be inapplicable or

inappropriate in many cases before the tribunal.

(p) Evidence in security appeals

161. It is apparent that the rules of evidence usually

applicable in judicial proceedings between parties cannot

be applied and should not be applied in much of the pro­

ceedings before an appeals tribunal dealing with security

issues. The evidence adduced by the Director-General

would often be hearsay, and the same may be true of some

of the evidence of or adduced by the appellant. It may be

appropriate and possible for the Security Appeals Tribunal

to require primary evidence to be adduced to establish some

facts in issue, but often the tribunal will have to rely upon the less reliable evidence which the nature of the

case allows.

162. The tribunal should not be limited to a consider-

ation of the evidence that was before ASIO when it made

its security assessment. In proper cases it may have to call witnesses of its own motion.

163. Information and documents which are tendered and

admitted by the tribunaL but which are not disclosed to

a party, should be evidence which the Tribunal can take

into account.

91.

164. Witnesses should be entitled to claim privilege in

respect of communications between husband and wife, and legal

professional privilege should apply. Crown privilege should

not apply except to the extent that evidence is excluded as a

result of a certificate by the Prime Minister, or to the extent that the Security Appeals Tribunal directs in the interest of security.

165. Witnesses should not be entitled to refuse to answer

questions because of liability to incrimination. However,

witnesses should not be liable to any civil or criminal

proceedings as a result of the evidence they give to the

tribunal, other than proceedings for perjury or contempt.

166. The evidence of referees should be subject to the

same rules and protection as the evidence of other witnesses.

But I do not think that a referee should be treated, and given

the same protection, as if he were a 'source'. In some cases

it may be possible to inform the appellant of a derogatory allegation made against him by a referee and for the tribunal to examine and test the correctness of the allegation without

revealing who made it. In these and other cases it may be

proper for ASIO to obtain independent evidence to support the

allegation if it wants to rely on it. But in cases where ASIO

wants to rely on the referee's evidence to establish or to

support the allegation, my examination of files and consider­

ations of justice support a view that it may be essential for

the appellant to hear the referee's evidence and to have the

92.

opportunity to test it by cross-examination. The tribunal

should have a discretion to allow the evidence to be given

and tested in this way, and in exercising this discretion

the tribunal should be entitled to have regard, among other

things, to its own ability to test the allegations, and the

requirements of justice to the referee as well as to the

appellant.

(q) Representation before the tribunal

167. The appellant should be entitled to be represented

by a legally qualified practitioner or by a member of his

union or association, or where appropriate, by another member

of the Defence Force, but any such representative should be

subject tofue same restrictions as to hearing evidence, cross-examining and the like as is the appellant. The Director-General of Security should also be entitled to legal

representation. [2-38]

(r) Publication of tribunal's findings and evidence

168. The appellant, the Director-General and the

appropriate officers of the employer authority should be

notified of the finding of the Security Appeals Tribunal

2-38 In the UK, representation by lawyers before the three Advisers who review advice given in cases is

not allowed on the ground that a lawyer, 0y repeatedly appearing in these cases, might soon gain an acquaint­ ance with service methods. This view has not

been adopted in NZ or in the US, was not followed in

the Report of the Canadian Royal Commission on Security and in my opinion should not be followed in Australia.

93.

on the security assessment and on the supporting information.

Where the appellant has not been notified of the assessment

or of information supporting it because of the effect of a

certificate of the Prime Minister, or because of the effect of a decision of the Director-General, confirmed by the

tribunal, the tribunal's finding should record the fact, and the tribunal should direct what information concerning its

finding on the security assessment should be given to the

appellant and the employer authority. The finding of the

tribunal, whether it upholds, reverses, or varies the assess­ ment of ASIO and/or the supporting information, should prevail

over the assessment and supporting information provided by

ASIO, and ASIO records should be noted accordingly.

169. The Security Appeals Tribunal should not be obliged

to give reasons for its findings, but it should usually do so.

Subject to any order the tribunal may make prohibiting or

restricting the publication of the whole or any part of its findings (including the reasons therefor) , the appellant

should be entitled to publish the findings in any manner he

thinks fit.

170. Much or all of the evidence tendered in any appeal

will require special protection, and the tribunal should have full powers to prohibit the publication of all or any parts of that evidence, including the names of witnesses.

94.

(s) Force of the tribunal's findings

171. Until I report fully on this subject, the tribunal's

findings should have the same force and effect as ASIO's

security assessments now have. ASIO's security assessments

advise and give information. Upon the receipt of the

tribunal's findings, the employer authority should be entitled to exercise the same discretions as it now exercises on

receipt of a security assessment from ASIO. Reference is made at paras 126-129 above to various appeal and review

bodies and boards of inquiry which may consider issues affected

by security assessments. The powers and functions of those

appellate and review bodies in these cases, in relation to

any security assessment made by ASIO, or by the Security

Appeals Tribunal, will depend upon the terms of any relevant

legislation. But usually the appellate or review body would be in the same position as the employer authority, and could

exercise the same discretions as the employer authority now

exercises upon receipt of a security assessment from ASIO.

(t) Further consideration of findings by the Security Appeals Tribunal

172. No doctrine of res judicata or issue estoppel should

be applied to any findings of the tribunal, and either the

appellant or the Director-General should have the right to ask

the tribunal to re-open an appeal. The tribunal should also

be able to re-determine procedural rulings it has made.

Normally the tribunal would need to be satisfied by the

applicant that there was a case for re-opening the appeal, but

95.

the matter should be completely within the discretion of the

tribunal.

17 3. Subject to the jurisdiction of the High Court under

para 75(v) of the Constitution, the findings of the tribunal

should not be the subject of any review by any court or other

tribunal.

(u) Compensation

174. A wrong security assessment or an incorrect item of

supporting information provided by ASIO may sometimes cause

pecuniary loss or detriment to the subject of the assessment,

although the loss or detriment would flow from the consequent

action of the employer authority. In appropriate cases the Australian Government should make good this loss or detriment

by the payment of compensation. I say "in appropriate cases"

because the nature of the mistake, the circumstances in which it

was made, problems of proof, the actions of the employer authority

(including any based on non-security considerations) or of the

person the subject of the assessment and (in retrospective cases)

the persuasive effect of subsequent events or other circumstances

may make the case inappropriate for compensatory action. I have

concluded that I should not recommend that compensation in these

cases should be the subject of an enforceable right, but that the

decision to pay, and the amount of any payment of, compensation

should be a matter for the Australian Government.

175. The Australian Government should not, however, make the

decision without assistance from the tribunal, which would be fully

96.

seised of the facts. The tribunal, having heard an appeal,

should report whether a case is a proper one for compensation

or not, and although it should not be concerned to fix an amount,

it should point to the loss or detriment which it considers should be made good by compensation. It may be able to make this

report when it makes its findings upon the appeal, but it should

not allow a compensation claim to delay its findings on a securit1 issue. If it thinks fit, it should have the power to reserve

its consideration of any compensation claim (made in the first instance in the notice of appeal), and also the hearing of any

further evidence it may wish to hear, until it has time to deal

with the matter. Its report should not bind the Australian

Government, but the Government would no doubt want to give it

due weight in considering what course it should adopt.

(v) Costs, witness fees and legal and financial assistance

176. No special provision should be made for costs but

provision for witness fees and legal and financial assistance

should be made in terms similar to the provisions ·of the

Administrative Appeals Tribunal Act 1975.

97.

(w) Administrative support for the Security Appeals Tribunal

177. The tribunal will need a small measure of admin-

istrative support. A registrar or similar officer should be appointed . He or she could be a senior officer of the

Attorney-General's or other appropriate Department on

part- time assignment. Specia-l arrangements will have to be made to ensure completely the security of the records • of the tribunal and that the records are kept entirely separate from other papers. In appropriate cases, the

tribunal should direct that records of information should

remain in the custody of ASIO.

(x) Annual

178. The tribunal may find it useful ·to make an annual

report to the Australian Parliament on appropriate matters.

J. LEGISLATIVE PROVISIONS TO ESTABLISH THE SECURITY APPEALS TRIBUNAL

179. I have considered four possible ways in which the

Security Appeals Tribunal might be established by legis-lation. These are:

(a) By amendment of the Administrative Appeals

Tribunal Act 19 75.

. (b) By amendment of the ASIO Act.

(c) By separate enabling Act.

(d) By establishment under the Ombudsman Bill.

180. Legislation will be needed to implement the system

98.

of security appeals I have recommended.

181. That will be so, even if the Security Appeals

Tribunal is constituted as a Division of the Administrative

Appeals Tribunal. Although the Administrative Appeals

Tribunal Act allows some flexibility in procedure and con-stitution for the hearing of appeals against different categories of administrative decisions, [2-39] it would not

permit the establishment of the Security Appeals Tribunal

in the form I have proposed.

182. It is arguable, too, that ASIO's advisory security

assessment is not a "decision" within the meaning of s3(3)

of the Administrative Appeals Tribunal Act. Under that Act, the function of the Administrative Appeals Tribunal is

to review "decisions" as defined. Section 3 ( 3) states

that:

"A reference in this Act to a decision includes a reference to

(a) making, suspending, revoking or refusing to make an order or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article; or

2-39 See s25(6).

99.

(g) doing or refusing to do any other act or thing."

The definition is an inclusive one, and the provision by

ASIO of an adverse or qualified security assessment appears

to come within clause (g) if that clause is considered in

isolation. However, reading the sub-section as a whole, it is arguable that clause (g) should be construed ejusdem generis and limited to "decisions" having an operative

effect and not extended to the tendering of advice.

183. Important distinctions exist between the process

of appeals against security assessments I have suggested

and the general review of administration. In non-security

matters, persons adversely affected by administrative

decisions are generally aware that they have been so

affected. In the past, persons who have bee n adversely affected by security decisions may not have become aware

that they have been so affected. Even if they have sus­ pected that they have been adversely affected thereby, they

have generally been powerless to force the issue into the

open. Consequently procedures to inform persons adversely

affected are required. It seems convenient that these

procedures should be dealt with by the same l egislati on as

that governing the hearing o f their appeal . Special pro-cedural rules must be adopted in appeals against security

assessments and in matters preliminary to the appeal to

balance the competing interests of the individual and the

s t a t e .

100.

184. The operation of claims of Crown privilege should

be restricted more than is the case before other tribunals

(including the Administrative Appeals Tribunal). All

security assessments involve the security, defence or international relations of Australia. In most other areas, matters impinging on security, defence or international

relations arise only infrequently and severe restrictions on the duty of the Crown to produce and disclose evidence

are applied when they do. If all cases involving the

review of security assessments were subject to such restrict­

ions, the effectiveness of the review procedures would be

seriously hampered.

185. A security assessment has a potential greatly to

affect the life and career of a person. It can do so more

than many administrative decisions do. Partly because

derogatory information in a security assessment can have

a continuing effect, and partly because the extent to

which a person is to be adjudged a security risk can vary

over time, the principles of res judicata and issue

estoppel should not be applied to security appeals. It

is not clear whether they would be applied under the Admin-istrative Appeals Tribunal Act. [2-40]

186. Because of the special requirements of security it is important that the premises of the tribunal and its

2-40 See s44.

101.

records be kept separate from other tribunals. The mem-bers of the Security Appeals Tribunal and its staff will

need to have security clearances. Stringent physical

security precautions will need to be taken with the tribunal's premises and papers.

187 0 Whereas under s35 of the Administrative Appeals

Tribunal Act, hearings are to be in public except in

special circumstances, the hearings of security appeals should always be in camera.

18 8 0 Whereas under that Act an appeal on questions of

law lies to the Australian Industrial Court, under my

proposals, subject to the jurisdiction of the High Court

of Australia under para 75(v) of the Constitution, the

findings of the tribunal should not be the subject of any

review by any court or tribunal.

189. The Security Appeals Tribunal could, provided that

special provision is made for necessary differences between it and other Divisions of the Administrative Appeals Tri-bunal, be established as a Division of the latter tribunal.

190. The tribunal could be established under the ASIO

Act, under which the security intelligence service provides

security assessments, as has been done in New Zealand. [2-41]

2-41 Under the New Zealand Security Intelligence Service Act, which is discussed in Section D of Appendix 2-H to this report.

102.

191. It could, of course, be established by a separate

enabling Act.

192. The Ombudsman Bill (as it was read a first time

by the House of Representatives) proposes the appointment

of ombudsmen: watchdogs who can investigate and report on

grievances against the administration.

193. I have given consideration to whether the correct-ness of security assessments might be adequately tested by

an ombudsman-type investigation. For a number of reasons,

but particularly because adverse and qualified assessments

may involve disputed issues of fact and generally involve

the making of a judgement which can adversely affect a person

for the rest of his life, I have concluded that persons the

subject of these assessments should be able to test them

in the way recommended in this report. I shall consider

in a later report the proper role of an ombudsman in the

affairs of a security intelligence service.

194. I have reached no final view as to whether the

Security Appeals Tribunal should be established by amend­

ing the ASIO Act, the Administrative Appeals Tribunal

Act, or by separate enabling Act. But, for the reasons

I have outlined, I am of the view that the Tribunal

should not be established under the Ombudsman Bill.

103.

K. FINDINGS AND RECOMMENDATIONS

195. I make the following findings.

196. Australia has secrets which the Australian

Government has a duty to protect in the interest of

the nation. In the past, foreign powers have tried,

by clandestine means, to obtain such Australian secrets,

and similar attempts can be expected to be made in the

future. (paras 12-13)

197. A security intelligence service such as ASIO

should exist and should continue as an integral part

of the measures taken by government for the defence of

Australian secrets against espionage. The same service

should also continue ASIO.'s present functions of counter­

terrorism and counter-sabotage and ASIO will continue to

perform for some time its further statutory function of

counter-subversion. (paras 13-19)

198. The functions of the security intelligence

service should be limited, as ASIO's are now, to the

collection, evaluation and dissemination of security intelligence, the giving of advice relevant to security, and matters ancillary thereto. (para 18)

199. A system of security checking of persons in

Australian Government employment is and should continue

104.

to be one of the measures needed to protect the nation's

security. (para 19)

200. Without adequate machinery for review of security

assessments of persons the subject of check, grave and

permanent injustices can occur. (paras 115, 119-121)

201. In the light of these findings and of the

evidence before me, I make recommendations -relating to

the categories of persons to be checked, the processes

of security checks and the establishment of a system of

appeals against security assessments. (paras 119-121)

(a) Categories of persons in Australian Government employment to be security checked

202. I recommend

(i) That the system of security checking should

be directed to protecting the security of the

nation. (para 46)

(ii) That the system of security checks should be limited accordingly. Persons in Australian

Government employment should be security

checked only if they will have, or may

reasonably be expected, in the near future,

to have, access to classified security

matter or to security areas. (para 50)

(iii) That, specifically, persons being considered for appointment to positions with such access,

or probable access,

203.

105.

should not be security checked until it

is virtually certain that they will be appointed to such a position. (para 55)

The recommendations in para 202 above will

need an administrative decision only by the Government

to vary present policy as established by past

Governments.

(b) The contents of security assessments

204. I recommend

(i) That, in providing security assessments about a

person, ASIO should not communicate any

information about him or her that it has not

assessed as "relevant to security" as that term

is used in s5 of the ASIO Act. Specifically,

ASIO should indicate, in terms unmistakably

clear, the relevance to security of any information, including personality and character

information, provided by it about a person in

response to a request for security assessment.

(paras 51, 77-78 and 81-84)

(ii) That the security assessment should be quite un­ ambiguous. A different standard basic form

should be used for each type of security

assessment. (para 116)

106.

205. The recommendations in para 204 above are

matters for ASIO and employer authorities and may be

given effect by Government decision endorsing them

and their transmittal to the Director-General of

Security and to employer authorities.

(c) The respective responsibilities of the employer authority and of ASIO

206. I recommend

(i) That employer authorities should clearly

understand that ASIO's advice is a security

assessment and in no way a substitute for

normal employment inquiries. (para 70)

(ii) That, if an employer authority has information about a person in its or who is an

applicant for such employment, which it has

obtained as his employer or prospective

employer, and which it considers is or may

be relevant to security, it should inform

ASIO. ASIO is and should be treated as the

Australian Government's specialist on security

checking and assessment. (para 82)

207. The recommendations in para 206 above are

matters for ASIO and employer authorities and may be

given effect by Government decision endorsing them and

their transmittal to the Director-General of Security and to employer authorities.

107.

(d) Designation of sensitive positions

208. I recommend that positions whose incumbents

will or will probably have access, and who will therefore be security checked, should be publicly designated as

"sensitive". It may be necessary to so designate some entire departments and organizations, or some areas of them, where there is the likelihood that any employee

of the department, organization or area, as the case may

be, will or will probably have access to classified

security matter or a security area within a short time after initial appointment. (paras 57-60)

209. The above recommendation would, if accepted,

require amendment in due course of Public Service and

other legislation. I do not consider it within my

terms of reference to make specific recommendations as

to the way it should be implemented.

(e) Constraints on employer authorities

210. I recommend that, after the establishment of a

system of security appeals, each permanent head of an

Australian Government department, and other employer

authorities, should be empowered to move his employees compulsorily within the department or organization under

him, when he reaches a decision on security grounds

that he should do so. (para 75)

108.

211. The above recommendation would require amendment

in due course of Public Service and other legislation.

I do not consider it within my terms of reference to make

specific recommendations as to the way it should be implemented.

(f) The security checking process

212. I make no recommendations at this stage about

the criteria presently applied by ASIO in its processes

of assessing persons as suitable or unsuitable for access

to classified matter. (paras 109 and 145)

213. I recommend

(i) That ASIO should rely less than before on

information obtained from referees and should

consider iLterviewing them only

when there is a reasonable prospect of

obtaining information from them relevant

to security. (paras 91-93) .

(ii) That ASIO should be prepared more often to interview the subject of the security

check, in cases of doubt. (para 93)

214. The recommendations in para 213 above are matters

for ASIO and employer authorities and may be given effect

to by Government decision endorsing them and their

transmittal to the Director-General of Security and to employer authorities for attention.

109.

(g) The Security Appeals Tribunal

215. I recommend

( .' l, That a Security Appeals Tribunal be established

by the Australian Government. (paras 103, 115 and 122)

(ii) That the function of the tribunal be to review adverse or qualified security assessments and any supporting

information provided by ASIO at any time since it was

(paras 141-142)

(iii) That people who in future are the subjects of adverse

and qualified security assessments be notified of that

fact, and of the general nature of the supporting information except to that extent that, in the interest

of security, they cannot be notified. (paras 15l(i))

(iv) That the Security Appeals Tribunal should have the

composition, powers and procedures detailed in Part

H of this report.

(v) That until I report finally on this matter, the

tribunal's findings should not be binding but, like ASIO's security assessment, its function should be to

advise and give information releva nt to s e curity .

(paras 139 and 171)

(vi) That the Security Appea ls Tribunal should hav e

power to report to the Australian Gove rnme nt whethe r

a case is a proper one for the payment o f c omp e n s a tion

but should h a v e no right t o make awards o r t o b i nd t h e

Government. (par a s 174-17 5 )

110.

216. The recommendations in para 215 above as to the

establishment, functions, powers, composition and

procedures of the Security Appeals Tribunal will need

legislation. The legislation could be either an amendment to the Administrative Appeals Tribunal Act,

the ASIO Act or enactment of a separate act. I make

no specific recommendations as to which method should

be adopted.

(h) Scope of these recommendations

217. These recommendations are framed to relate to

persons in Australian Government employment as defined

in para 20 of this report. The recommendations would be

capable of later application, mutatis mutandis, to

"immigration" cases and to persons generally, but I do

not recommend that course at this stage.

(j) Effect of these recommendations

218. Except for Recommendation (g) (v) in para 215

above, these recommendations are final.

(k) Publication of this report

219. I recommend publication of this report except

for Appendices 2-A, 2-C and 2-F. In my opinion disclosure

of matters contained in Appendices 2- A and 2-c would be

prejudicial to the national security. Appendix 2-F relates to opinions given in confidence to ministers in the expectation that confidentiality would be preserved.

111 - 132

APPENDIX 2-A

In accordance with the recomnendation of the Royal Commissioner Appendix 2-A has not been included in this published Report as the disclosure of the matters contained in it would be prejudicial to the national

security (see Recommendation (k) at paragraph 219, page 11 0) •

133.

TABLE No l APPENDIX 2-B

NUMBER OF SECURITY CHECKS FOR ACCESS TO CLASSIFIED MATTER, 1970-1974

(based on figures provided by ASIO)

Assessment 1970 1971 1972 1973 1974

(estimated)

Favourable Assessment

Primary 55,126 44,887 40,847 41,557 63,652

Secret 19,891 17,021 17,377 15,568 14,079

Top Secret 3,059 2,799 2,528 2,668 2,659

Total 78,076 64,707 60,752 59,793 80,390

Qualified Assessments

Primary 127 66 99 26 36

Secret 43 20 19 6 5

Top Secret 20 ll 5 l

Total 190 97 123 32 42

Adverse Assessments

Primary 47 47 54 17 12

Secret 26 17 20 l

Top Secret 10 2 l

Total 83 66 75 18 12

Total Submissions

Primary (estimated) 55,300 45,000 41,000 41,600 63,700

Secret 19,960 17,058 17,416 15,575 14,084

Top Secret 3,089 2,812 2,534 2,668 2,660

Total 78,349 64,870 60,950 59,843 80,444

'<:f' ('I') r-l

- U) - 0 0 0 ......... U) s:: 0 ·r-1 Ul Ul ·r-l 8 ..0 :J (f) lH 0 <1) :J :z

80 70 60 50 40 30 20 10

0

Primary

Check

(estimated)

.·.·.·.· :::::::: "111111

.....

:: :: : ::::: : ::::::::::::::::: : ::::::::::::::::::1

ilililllllii[iiiilil!lililililllilliiiiillilil :-:-:-:-:.:

·: ·:.> : :::: ::::: : :::: ::: :-: ·:·: · ::

70

71

72

73

74

Figure

No

1:

Secret

Check

Top

Secret

Check

Total

....

. ...

·:·:·: ·:·:·:· :· :·:·:·:·:·:·:·:·:·:·:·:·:·:·:·:

70

71

72

73

74

7

0

7 1 7 2 7 3 7

tl

70

71

72

73

74

Year

NUMBER

OF

SUBMISSIONS

FOR

SECURITY

CHECKING

1970-1974

(based

on

figures

provided

by

ASIO)

300 200

t/} 0

•

Q)

Lf)..C: MU .-!

4-l 0 H

roo

z

75 50 25

0

Adverse

Assessments

:::::::::::::::::::

·.·.·.·.·

.. ·.·.·.·.·.·.·.·.·

·.· .. ·.·.·

.. ·.·.·.·.·

.. ·.·.·.·

·.·.·.·.".·.·.·.·.·.·.·.·.· :·:·:·:·:·:·:-:c:·:·:·:·:·:

::::::::::::::::::::::

.:::::

::::::::::::::::::::::::::::::::::::::::::::::: 7'l

71

72 73 74

Qualified

Clearances

::::::::::::::::::::::::::: lllllillllllllillllillillll

?0

71

72

73 74

Year

Total

.....

..----.-·

·· .....

.............. .. ·.·.·.·.·.·.·.·.·.·.·.·.·

.

············· iliiilll!llilliillilll

1 11lii

............

..

..

........

-..... .

·············· :::::::::::::::::::::::::::: ...

..

...... .

·.·.· .. ·.·.·.·.·.·.·.·.

·. ·.·.

::::::::::::::::::::::::::::

.. ·. · ... · .. :·:·:·:'

"l!llll!lili!!:l!ll:::::!l!l!i!l!:·:·l!!":!l:l: 70 71

72

73

74

Figure

No

2:

NUMBER

OF

QUliliiFIF.D

AND

ADVERSE

REPORTS,

1970--1974

(based

en

figures

provided

by

ASIO)

136- 150

APPENDIX 2-C

In accordance with thP- recommendation of the Royal Commissioner Appendix 2-C has not beerr in this published Re ? ort as the disclosure of the matters contajned in it would be prejudicial to the national s ecurity (see Recomr ,endation (k) at paraGraph 2 19, page

11 0) •

COMMONWE,O.LTH OF AUSTRALIA

DEPARTMENT OF

PERSONAL PARTICULARS FORM

151. APPENDIX 2-D

FOR OFFICE USE ONLY

LIST No.

POSITION APPLIED FOR

DATE

PERM.I:\NENT

(Delete as necessary)

FORM 4564

NOTES : 1. If there is insufficient space on this form or the applicant wishes to offer amplification to any question this should be put on a separate sheet of paper and firmly ettt1ched to this questionnaire.

2. All questions are to be answered where applicable. Where a question is not answered a reason is to be stated unless the annotnt10n 'not applicable' is appropriate. Where insufftcient details are known the form is to be completed as fully as possible . but it must be shown where an an swer is approximate.

I'

OTHER NAMES I 0 Male

0 Female

SURNAME (in BLOCK letters)

MAIDEN NAME (if applicable)

I

NAME BY PREVIOUS MARRIAGE I ANY OTHER CHANGE OF NAME (state place. date and (if applicable) method)

MARITAL STATUS

0 Single

(Place X in appropriate box) ' IF MARRIED

0 Widow 0 Divorced

(state place and date of marriage)

0 Martied 0 Widower f: Sepa rated I

DATE OF BIRTH I TOWN OR VILLAGE

IF BRITISH BY NATURALISATION state place and date of naturalisation and give certificate number

STATE OR PROVINCE I COUNTRY

NATIONALITY AT BIRTH and all subsequent (including dual) nationalities-give details of acquisitions and quote Certificate No.

D.ATE ARRIV ED AUSTRALIA I PORT AND VESSEL OR MEANS OF ARRIVAL I DATE ARRiVED THIS STATE

PRI VATE ADDRESS/ ES FOR PAST TEN YEARS

Dates Street and Number Town or Village State or Pro vince Country

19 to 19

19 .. ..... .. to 19

19 to 19

19 to 19

19 to 19

PREVIOUS STATES OF RESIDENCE IN AUSTRALIA. WITH DATES, UNLESS COVERED ABOVE

CLOSE RELATIVES, BOTH LIVING AND DECEASED

Wife including maiden name, or husband. sons and daughters ( 16 years and over) . father. mother (maiden name). brothers and sisters ( 16 years and over) Including step and half blood relatives. Where applic:Jble changes of na me. by marriage. etc .. are to be ind1catcd. NAME IN FULL (surname in BLOCK letters) RELATIONSHIP NATIONALITY PLACE AND DATE OF BIRTH

(a) .. ... .............. .. .. .. .. .. .. ... .. ............ . .. .. .. .... ............ .... .. ........... ... ...... .... .. ..... ...... .... ... ....... ..... .. ............... .. ... ... ... ....... ... ...... ... ... .... ...... ... .. ... ... .. ..

Present address ... ...... ................. ... ... ..... ........ ..... .. ..... ..... .. .. ... .. ........ ....................... .... .... ........... ............ .. ....... .... .. ....... .... ........ ..... ..... ... ................... .. ..... ........ .

(b) .. . .............. ... ... .. ....... ....................... .... .. .. .. ...... .... ... .. ... ...... .. ..... .. ....... .. ......... ..... ..... ........... ... ............. ..... .. ........ ........ .......... .. ... .. ..... .. ... ..... .... ... .. .......... ... ... .

Present address .. .......... ........ ............... ....... .. ..... ... .... .. ..... .... .. .... ........ .. .......... ......... ...... .... .. ....... ....... .......... .... .. ............ .. .. ...... ......... ..... .................................... ..

(c)

Present address .... .. ................. .. .. ... ... ...... .. ... .. ......... .... .......... .. ..... ..... ... ......... .. ......... .... .. .... .. .. ... .. .... .......... .... ............... ... ......... .. .. ............................................ .

(d) ..

Present address ....................... ...... .. .. ... ... ....... .. .. .. ... ... .... ..... ........ ...... .. .. .. ....... ... .... ..... ...... .... ............ .. .. .. .... .... .. .......... .. .... .. .. ... .. ............................. ..

(e) ... ... ..... .. ... ....... .. ............. . ... .. ...... .... ........ .... ......... ... .. ... .. ........ .... ...... ...... , . .. ... .. .... ... ... ..... .......................... ....... .............................. .

Present address

(1) .. .. ............. .. .... ... ...... ............... .. .... .. ............... .. ....... .. ..... ............. ...... .. ...... ............ .... ..... .. ................ ..... ......... .... ..

Present address

(g)

Present address ....... ......... ...... .. ........ .. ........... ........ ........... ........ ... .... .... ..... .... .......... .. ..... ...... .. .. ................. .. .. ..... ......... .. ...... ......................... ..

(h) .....

151 a

----·---- - --------OTHER COUNTRIES VISITE D OR IN W HI CH YOU HAVE RESI DED DsteJ

1 9 ··-··-to 19 ...

19 ... to 19 ..

1 9 ...... ................. to 19

PR ESENT OCCUPATION

DATES

19 .. ... ... to 19 ...

19 ················- ··· ·· to 19 ...

19

19 .

.. .. to 19 ..

..... ...... to 19

19 ... ..... ........ ... to 19 . . .

AR M OF SERVICE

EDUCATION

Country Reason

I PRESENT EMPLO YER EMPLOYER'S NAME ADDRESS

··-· - 1-' " "" 'o.l

..... . I I

RAN K

...... ..... , ..

. . ......... L

If RE SIDENT OVERS EAS give Bddresses for last two years of su ch residence unless in clude d above .

EMPLOYER'S ADDRESS

HOW EMPLOYED REASON FOR LEAVING

SPECIALISATION OR TRADE PERIOD OF SER VICE

from . . ... .. to

fro m to

DATES SECONDARY OR TECHNICAL SCHOOL CR U N IVERSITY EXAMINATIONS PASSED (Degrees. D1plomas. etc.)

19 .. .. to 19 .... .... .. .. ...... - ....... ..

19 .. . to 19 ..

19 ..... ................ . to 19 ..

19 .... .... .. ........ to 19 .. ..

RE

Ple1ase give de tails of three person s of mature judgment who have known you personally for at least two ye ars and are not relatives or memb8fl of the same Department or f irm as yours elf. If practica ble referees should be readily accessible in the State in w hich this form is comple ted.

NAME IN FULL (Surna me in BLOCK letters)

OCC UPATI ON

HOW LONG KNOWN

NATUR E OF A CQU A INTANCESHIP

BUSIN

RESID ENTIA L ADDRESS AN D PH O N E No.

DE SC RIPTIO N

I

I

I I I

I I

EUILD (deletf: as necessary) SLI GHT/ ME D l U M / H EAVY

(1)

HE IGHT

(2) (3)

I

I

I

I

- -, I ---- -----------I CO LO UR OF HAIR I COLOUR OF EYES I DI STINGUISHING FEATURES (scars. etc.) I hereby declare tha t to the best of my knowledge and be li ef the inform ati on shown above and on the front of this form is a true and . ..... .. . ..... .... .... '.. .. .... . ' ....... ../ / .. complete statement of the matters set forth herein. Slgnatur9 of WitnfJU Date Addras1 of Witnes3 Signaturs 166!:1 3/72. W . Q . MVHIV. Govern ment Prl nllng Office, C•nbene R71/369J

152. APPENDIX 2-E

SOME DEFINITIONS OF "SECURITY RISK"

Many formulations have been attempted of what

activities or associations of a person may cause him to be assessed as a security risk. Some of those noted

are as follows.

2. On 15 March 1948, Mr Attlee told the House of

Commons:

" ... there are certain duties of such

secrecy that the State is not justified in employing in connection with them anyone whose reliability is in doubt.

Experience, both in this country and elsewhere, has shown that membership of, and other forms of continuing association with, the Communist Party may involve the

acceptance by the individual of a loyalty, which in certain circumstances can be inimical to the State.

It is not suggested that in matters affecting the security of the State all those who adhere to the Communist Party would allow themselves thus to forget

their primary loyalty to the State. But there is no way of distinguishing such people from those who, if opportunity offered, would be prepared to endanger the security of the State in the interests of another Power. The Government have, therefore, reached the conclusion that

the only prudent course to adopt is to ensure that no one who is known to be a

member of the Communist Party, or to be associated with it in such a way as to

raise legitimate doubts about his or her reliability, is employed in connect ion with work, the nature of which is vital to the security of the State.

The same rule will govern the employment of those who are known to be actively associated with Fascist organizations ." [2-E-1]

2-E-1 448 H C DEB 5s, pl703.

153.

3. A statement relating to the "purge procedure",

which was published in Britain in 1957, said that a

civil servant's reliability could be regarded as prima facie in doubt on security grounds, if:

" ... he is or has recently been a member

of the British Communist Party, or in such a way as to raise reasonable doubts about his reliability, is or has recently been sympathetic to Communism, associated with Communists or Communist sympathisers, or is susceptible to Communist pressure."

[2-E-2]

4. The report of the Radcliffe Committee in 1962

recalled that the report of the Conference of Privy

Councillors [2-E-3] had recommended that the three

Advisers should be required to answer the following

single direct question:

"Are there or are there not reasonable grounds for supposing that the individual has or has recently had Communist sympathies or associations of such a type as to raise legitimate doubts about his reliability?" The Radcliffe Committee added that this question now

formed the main substance of the three Advisers' terms

of reference, and they commented that they could not

see how this question could be refined further. [2-E-4]

5. The Canadian Royal Commission on Security in

1969 gave a more detailed account of the criteria to

be applied in assessing whether someone should be

regarded as a security risk. The Commissioners said:

2-E-2 2-E-3 2-E-4

Quoted by ASIO in Doc Al6, annexure H, para 2. Official Report, 29 January 1957. Security Procedures in the Public Service, Command 1681, April 1962, para 57.

24774177 - 5

154.

"97. As we have suggested, we feel that all

persons who may have access to classified information in the performance of their duties must be persons in whose reliability the government can repose full confidence. It has

in our view been clearly demonstrated that such confidence cannot be olaced in persons whose loyalty to canada and our system of government is diluted by loyalty to any

communist, fascist, or other legal or illegal political organization whose purposes are inimical to the processes of parliamentary democracy. Therefore, persons in the following categories should not be permitted to enter a position in the public service where they may

have access to classified information or are likely to have opportunities to gain such access: (a) a person who is a member of a communist

or fascist party or an organization affiliated with a communist or fascist party and having a similar nature and

(b) a person who by his words or his actions

shows himself to support a communist or facist party or an organization affiliated with a communist or fascist party and having a similar nature and purpose; (c) a person who, having reasonable grounds

to understand its true nature and purpose, is a member or supports by his words or

his actions an organization which has as its real objectives the furtherance of communist or fascist aims and policies (commonly known as a front group) ; (d) a person who is a secret agent of or an

informer for a foreign power, or who deliberately assists any such agent or informer; (e) a person who by his words or his actions

shows himself to support any organization which publicly or privately advocates or practices the use of force to alter the form of government. It must be borne in mind that there may be

reasons to entertain doubts about persons who at some previous time fell into one or

other of these categories, even though these doubts may not be confirmed b y more recent information.

98. In addition, a person ma y be unreliable

in the context of security for a number of

6.

155.

reasons other than associations or activities such as those described in the previous paragraph. To provide greater assurance of reliability, persons in the following additional categories should not be permitted to have access

to classified information unless after consideration of the circumstances the risk appears to be justified:

(a) a person who is unreliable, not because he is disloyal, but because of features of his character which may lead to indiscretion or dishonesty, or make him vulnerable to blackmail or coercion. Such features may be greed, debt, illicit sexual behaviour, drunkenness, drug addiction, mental imbalanc_ e or such other aspects of character as might seriously affect his reliability; (b) a person who, through family or other

close continuing relationship with persons described in paragraph 97 above, is likely to be induced, either knowingly or unknowingly, to act in a manner prejudicial to the safety and interest of Canada; it is not the kind of relation­

ship, whether by blood, marriage or friendship, which is of primary concern, but the degree of and the circumstances surrounding the relationship, and most particularly the degree of influence that might be exerted, which should dictate a

judgment as to reliability;

(c) a person who, though in no sense disloyal or unreliable, is bound by close ties of blood or affection to persons living within the borders of such foreign nations as may cause him to be subjected to intolerable pressures." [2-E-5]

The standing instruction in the US is Executive Order

10450 dated 27 April 1953. It requires loyalty investigations in

respect of certain employees to develop this information:

2-E-5 Canadian Royal Commission on Security, Abridged 1969, paras 97-98.

156.

"Sec. 8. (a) The investigations conducted pursuant to this order shall be designed to develop information as to whether the employment or retention in employment in

the Federal service of the person being investigated is clearly consistent with the interests of the national security. Such information shall relate, but shall not be limited, to the following:

(1) Depending on the relation of the Government employment to the national security: (i) Any behaviour, activities, or

associations which tend to show that the individual is not reliable or trustworthy. (ii) Any deliberate misrepresent­

ations, falsifications, or omissions of material facts. (iii) Any criminal, infamous, dishonest, immoral, or

notoriously disgraceful conduct, habitual use of intoxicants to excess, drug addiction, or sexual (iv) An adjudication of insanity, or

treatment for serious mental or neurological disorder without satisfactory evidence of cure. (v) Any facts which furnish reason

to believe that the individual may be subjected to coercion, influence, or pressure which may cause him to act contrary

to the best interests of the

national security.

(2) Commission of any act of sabotage, espionage, treason, or sedition, or attempts thereat preparation therefor, or conspiring with, or aiding or abetting, another to commit or attempt to commit any act of sabotage,

espionage, treason, or sedition. (3) Establishing or continuing a s ympathetic association with a saboteur, spy, traitor, seditionist, anarchist, or rev olutionist,

or with an espionage or other secret a g ent or representative of a foreign nation, or any representative of a foreign nation whose interest may be inimical to the

157.

interests of the United States, or with any person who advocates the use of force or violence to overthrow the government of the United States or the alteration of

the form of government of the United States by unconstitutional means. (4) Advocacy of use of force or violence to overthrow the government of the United

States, or of the alteration of the form of government of the United States by unconstitutional means. ( 5) in, or affiliation or sympathetic

association with, any foreign or domestic organization, association, movement, group, or combination of oersons which is total­ itarian, Fascist, Communist, or subversive, or which has adopted, or shows, a policy of advocating or approving the commission of acts of force or violence to deny other persons their rights under the Constitution of the United States, or which seeks to alter the form of government of the United States by unconstitutional means. (6) Intentional, unauthorized disclosure to any

person of security information, or of other information disclosure of which is prohibited by law, or willful violation or disregard of security regulations. (7) Performing or attempting to perform his

duties, or otherwise acting, so as to serve the interests of another government in preference to the interests of the United States."

158 ... 164

APPENDIX 2-F

In accbrdance with the recommendation of the Royal Commissioner Appendix 2-F has not been included in this published Report as it relates to opinions given in confidence to Ministers in the expectation that

confidentiality would be preserved (see Recommendation (k) at paragraph 219, page 110}.

165. APPENDIX 2-G

APPEAL,INQUIRY AND REVIEW PROCEDURES AVAILABLE UNDER THE PUBLIC SERVICE ACT AND REGULATIONS

There are eight forms of appeal, inquiry or review

under the Public Service Act and Regulations relating to

executive or administrative action, which could have a bearing

on security matters. They cover:

(a) provisional promotion, s50, reg 109,

reg 108B;

(b) selection for temporary higher duties,

reg 116;

(c) promotion or transfer, reg 111;

(d) deferral of increment, s31;

(e) instructions, reg 33;

(f) disciplinary action, s55, s56, s82AA;

(g) dismissal by the Governor-General

following an inquiry and report by

the Public Service Board, s94; and

(h) any matter not covered by other

regulations, reg 6.

A. APPEAL AGAINST PROVISIONAL PROMOTION

2. As the PSB noted in its 1974 annual report:

"Section 50 of the Public Service Act deals with the transfer and promotion of officers within the Service and the system under which an appeal against the selection of an officer

for promotion may be made by any other officer who considers himself more entitled to promotion than the officer selected." [2-G-1]

2-G-1 PSB, Annual Report 1974, p74.

166.

This provision was included in the Act in !945 following

recommendations by the Bailey Committee.

3. The permanent head of a department has authority

under sSO(l.) of the Act to transfer or provisionally promote

an officer to fill any vacancy in his department. Departments

are not required to notify vacancies in the Australian Govern­

ment Gazette, but provisional promotion to a vacant position

in the second, third or fourth division must, under s92{2), be

so notified. It is provisional in that it is subject to

appeal and is without increased salary until confirmed.

4. An appeal may be lodged up to three weeks from the

date of gazettal. The committee or the PSB's office notifies

the permanent head of the appeal and the name of the appellant.

The permanent head may not confirm the promotion until the

appeal has been determined.

5. Committees are required to make full inquiries into

the claims of appellants and officers provisionally promoted.

The PSB has summarised the basic appeals arrangements thus:

"Appeals are considered on one of two grounds: superior efficiency, or equal efficiency combined

with seniority. In the case of promotions made to a small number of specified Fourth Division designations the grounds of appeal are that the appellant is senior to the officer provisionally promoted and is efficient.

6.

167.

Each Committee consists of an independent Chairman, an officer nominated by the department in which the subject position is located and an officer nominated by the

appropriate staff organization.

In the event that parties to appeal cases perform duties in different States, the Act requires consideration by the Promotions Appeal Committees in the respective States, whose reports are referred to a Central

Promotions Appeal Committee." [2-G-2]

Under reg· I09F, a committee must 11 make its inquiries

without regard to legal forms or solemnities ... In its reply of

27 November I969 to questions from Mr Justice Kerr, who was then

inquiring into administrative tribunals, the PSB described the

procedures of promotions appeal committees as follows:

7.

11

Detailed procedures are not prescribed by statute or regulation, but broad procedures have been developed by practice ... The proceedings are not open to the public or

the press ... The practice is for the parties

to put their own cases, separately, to the Committee in writing and, normally, in person In practice a Committee requires a Departmental statement of the reasons for the

selection of the provisional promotee ... An appellant does not have access to documents submitted by the promotee, and vice versa ... When a determination is made by a Committee,

the form embodying the determination is forwarded to the Public Service Board. No reasons for the determination are given to the parties. After the result has been notified the case is not further reviewed ...

[2-G-3]

The steps following the hearing of an appeal

are set out by the PSB in a training booklet as:

2-G-2 2-G-3 Ibid, p74. PSB file 68/8074.

24774177-6

168.

" ... if appeals are disallowed and the

provisional promotion is confirmed, the Board notifies the departments concerned in writing, and also notifies the confirmation of the promotion in the Gazette.

If an appeal is upheld, the Board issues a certificate cancelling the provisional promotion and promoting the successful appellant. Notification of the cancellation of the provisional promotion and promotion of the successful appellant is published by

the Board in the Gazette. There is no right

of appeal against the promotion of a successfulappellant. Such promotion is made by the Board and is not provisional.

An officer whose provisional promotion is confirmed or a successful appellant who is promoted is entitled to be placed in his new position without delay. Departments are allowed a period of not more than six

weeks after gazettal of advice that an appeal has been upheld or a promotion confirmed, to release the officer to his new department." [2-G-4]

8. Over the years attention has been directed to the

implications of reg 108B (1), which provides:

"Where a senior applicant is not selected for provisional promotion to a vacant office, the Permanent Head or the Chief Officer, as the case may be, shall, at the

time of the making of the selection inform the officer of any specific adverse matter which was decisive against his selection."

It has been felt that one "specific adverse matter" may well be an adverse security assessment. For reasons of

secrecy, a permanent head might decide not to inform

2-G-4 PSB, Training Section, Promotions and Appeals System, 1964, pll. The period within which a department must release an officer is now two weeks.

169.

the senior applicant of this specific adverse matter.

This point has, however, not yet been tested. Only

one department had a record of the regulation being

applied:

"Two instances have occurred where officers have been informed that t hey could not be promoted because of adverse security considerations - both were advised of this

in the context of Public Service Regulation 1 0 8 B ( 1 ) • II [ 2-G- 5 ]

B. APPEAL AGAINST SELECTION FOR TEMPORARY HIGHER DUTIES

9. Reg 116 makes provision for appeals against the

direction of a chief officer to an officer in his department to perform the . duties of a higher position for

a period exceeding one month. "There is no prescribed

time limit for the lodgement of appeals under Regulation

116." [2-G-6]

1 0. The provisions o f s50 of the Act apply, mutatis

mutandis, to an appeal under this regulation as if it

were an appeal under that section. The one exception

is that, where the appellant is from another department, the committee makes a report to the Board and the Board

determines the appeal. In practice, since a selection

is not published in the Gazette few officers outside the department get to hear of it and such appeals are

uncommon.

2-G-5 DFA reply on personnel security to questionnaire from this Royal Commission, para 32. 2-G-6 Promotions and Appeals System, op cit, pl3 .

170.

11. The determination is similarly binding on the

permanent head and his chief officer. Where the

appeal is upheld, the chief officer must revoke the

original direction and direct the successful appellant to perform the duties of the office if he is from the

same department. If the appellant is from another

department, the Board gives the direction. Further,

"A department is required to place a successful appellant in the position in dispute immediately advice is received from the Board. The successful officer is paid at the higher rate only from the date on which he takes up duty in the higher

position." [2-G-7] 12. According to the Board's annual report for 1974,

over 20% of provisional promotions in 1973 attracted

appeals. The average number of appeals per promotion

appealed against was 6.7. The overall proportion of

appeals that were successful was almost 13%, ranging

from 18.5% for positions at third division class 1-5

level to 1.7% for second division positions. These

figures varied over the years 1968 to 1973, but not to

an extent warranting comment here. [2-G-8]

13. Statistics on appeals under reg 116 are not

presented in the same way and it is not possible to

say what proportion of temporary transfers

appeals. The figures available do show, however, that

2-G-7 2-G-8 Ibid, pl3 Annual Report 1974, op cit, ppl77-178.

171.

for most of the years 1969-1973 provisional promotions

drew about four or five times the number of appeals as

did temporary transfers. They also show that the

proportion of successful appeals against temporary

transfers was low.

14. Two 1974 inquiries ihto the promotions appeals

system looked only at appeals against promotions under

sSO and reg 116. The inquiries were conducted by a

Board committee and a sub-committee of the Joint

Council. Their recommendations were mainly procedural

and were aimed at speeding up appeal arrangements.

They are currently under consideration by the Board.

C. OBJECTION TO PROMOTION OR TRANSFER

15. Reg 111 says:

"Should any offic er object to promotion or transfer on the grounds that it will involve him in pecuniary loss, or that the transfer is not to a position of

equal importance, or for other cogent reasons, he may apply through the Chief Officer and Inspector to the Board for permission to decline the promotion or

transfer. If the Board finds that the

objection is well founded, permission may be granted without prejudice to the officer's right of future promotion or transfer; otherwise the Board

shall make an order directing the promotion or transfer of the officer."

16. While no precise figures on appeals under

this provision have been published, the numbers involved are very small.

172.

D. APPEAL AGAINST DEFERRAL OF INCREMENT

17. Section 31 covers the payment of salary

increments in accordance with the prescribed salary

scale. If the permanent head directs" ... that the

increment shall not be paid until the expiration of

such period as he thinks fit", the officer so affected

" ... may appeal to the Board and the Board shall, after

enquiry, determine the appeal."

E. APPEAL AGAINST INSTRUCTIONS

18. A form of appeal which is appropriate for, say,

a probationer under notice of dismissal is available

under reg 33. It is commonly referred to as an appeal

against an official instruction, but may be used where

an officer believes he has grounds for complaint

arising from any cause. The regulation says:

"(1) If any officer considers he has

grounds of complaint arising out of any official instruction, or from any other cause, he may appeal, in regard thereto, to the Chief Officer through his immediate superior officer, who shall forward the appeal forthwith to the Chief Officer, but he shall nevertheless, as far as possible, carry out any instruction given him until it is countermanded by competent authority.

(2) If an officer, having appealed to

the Chief Officer, in pursuance of this regulation, is dissatisfied with the decision, the Chief Officer shall on request forward the appeal to the Permanent Head, who, if the appeal is not allowed, shall transmit it to the Board for determination."

173.

F. APPEAL AGAINST OR REVIEW OF DISCIPLINARY ACTION

19. Acts in respect of which security assessments

have a relevance may, if the subject of disciplinary

proceedings, come under the provisions of ss55 and

82AA (appeals) or s56 (inquiry). The PSB's Annual

Report 1974 describes the procedures as follows:

"In general, internal disciplinary matters in respect of Third and Fourth Division officers are covered by section 55 of the Act. The essential features of action

under section 55 are as follows:

in harmony with sub-section 25(2), which provides that 'The Permanent Head of a Department shall be responsible for its general working,

and for all the business thereof ... ',

departments have the responsibility for initiating action when circumstances require it and for imposing such punishments (other than dismissal} as are deemed to be

appropriate

where the Permanent Head considers that dismissal is justified, a recommendation is required to be submitted to the Board

for any punishment more severe than a caution, a reprimand or a fine of

$4 or less, officers have a right

of appeal against the departmental decision on the grounds of innocence or excessive severity of punishment; the appeal is to an Appeal Board,

constituted by a Chairman with the qualifications of a Stipendiary or Police Magistrate, a departmental nominee and a Divisional Representative elected by staff, and

the Appeal Board may confirm, annul, or vary the punishment and its decision is final, except that where the Appeal Board considers an officer

should be dismissed the case must be referred to the Public Service Board which may dismiss the officer or impose an alternative punishment.

174.

Procedures for disciplinary cases involving First and Second Division officers are contained in section 56 of the Act. The

essential features are as follows: any person may charge a First or Second Division officer

again in harmony with sub-section 25(2) of the Act, in the case of

an officer of the Second Division, the Permanent Head is responsible for deciding whether to initiate disciplinary action by suspending

the officer and reporting the suspension and charge to the Public Service Board (the Minister has this responsibility in the case of First Division officers, who are generally Permanent Heads)

where charges are not admitted, the Public Service Board appoints a Board of Inquiry to inquire into the truth of the charge, and

where charges are admitted or found by the Board of Inquiry to be proved,

the Public Service Board may make to the Governor-General such recommendations as to punishment or otherwise as it sees fit."

[2-G-9]

20. The drafting of legislation to amend the Public

Service Act provisions dealing with discipline of .third

and fourth division officers is well advanced. The

proposed amendments will include: II

legislative restriction of the offence of 'improper conduct' to situations where the conduct is relevant to the officer as an officer, with a similar restriction for criminal offences which may attract disciplinary action

. extension of appeal rights to cover all formal disciplinary action

2-G-9 Annual Report 1974, op cit, p 106.

2I.

175.

extension of the protections afforded by disciplinary provisions to a greater number of temporary employees,

namely employees who have had service of one year or more, or who are employed for a fixed

term of one year or more, and

emphasis on the extended primary role of departments, especially in relation to suspension powers and action where there has been a cri,minal offence." [2-G-10]

Similar arrangements apply to temporary employees,

as the Board outlined in its reply of 27 November 1969 to

Mr Justice Kerr:

22.

"Section 82AA · of the Public Service Act provides a right of appeal for certain temporary employees whose.services are dispensed with in specified circumstances.

The provisions thereof are very similar to section 55. Cases arise infrequently. [ 2-G-ll]

One of the four punishments available to a chief

officer under s55 is that of transferring the offender "to some other position or locality, which transfer may be in

addition to fine or reduction ... ". [2-G-12] Thus a persistent

offender of the security regulations could attract disciplinary

action under these It may be that the appeal might

best be heard by a board convened under s55 rather than an

2-G-10 2-G-11 2-G-12

PSB, Annual Report 1975 , p89. PSB file 68/8074. s55(3) (d) (iv).

176.

appeals tribunal, since whatever the offence or breach

committed, the charge would be disregard of a lawful

order.

23. Two important differences between appeals under

s50 and reg 116 on the one hand, and those under s55

on the other, are covered by s60. It provides that:

" (1) In any case where a charge against

an officer is dealt with by a Board of

Inquiry or Board, a copy of all

documents intended to be used at the inquiry shall, where practicable, be furnished to the officer at least seven days before the inquiry is held.

(2) Where any charge against an officer is dealt with by a Board of Inquiry or

Appeal Board, that Board shall have the right to direct that the inquiry shall be held in public or in private."

24. The PSB's Annual Report 1974 explains s62 of

the Act, which relates to criminal offences committed

by officers of the Service, as follows:

"In this section responsibility for appropriate action (other than in relation to suspension) is placed on the Public Service Board and not on the Permanent Head. If the court

finds an officer guilty of a criminal offence, the Board may impose such punishment as the case demands, including dismissal. There

is no provision for appeal." [2-G-13]

25. According to the PSB's Annual Report 1974, in

1973-74 there were 1,309 punishments imposed under s55,

over 80% of them were reprimands and fines of $4 or less.

2-G-13 op cit, pl07.

177.

One officer was transferred to another position. There

were no punishments under s56. The statistics for

appeals against s55 punishments were presented in a

different format. A crude calculation, however, shows that less than 2% of punishments attracted appeals. [ 2-G-14]

G. INQUIRIES LEADING TO DISMISSAL BY GOVERNOR-GENERAL

26. s94 contains provision for two forms of

inquiry leading to dismissal by the Governor-General:

"(1) If after inquiry a Royal Conunission appointed under the Royal Commissions Act 1902-1912 to inquire into the origin of birth and parentage of persons in the

Public Service or employ makes a report to the Governor-General expressing the opinion that the service of any person in the Public Service or employ should

not be continued, the Governor-General may dismiss the person from the Public Service or employ."

(2) If the Board, after inquiry, reports

to the Governor-General that, in its opinion, the continuance of any person in the Public Service or employ is detrimental to the public safety or the

defence of the Commonwealth, the Governor-General may dismiss the person from the Public Service or employ."

27. The provision in its original form took effect

from 1918 and was apparently directed to officers of

enemy origin. [2-G-15]

2-G-14 2-G-15 Ibid, pl76. A marginal note to the Act reads "Dismissal

of officer of enemy origin".

178.

28. The arrangement was originally covered by sSOA,

but carne under s94 when the Act was amended in 1922.

There were three significant amendments. First, in 1918

the relevant section specified that the inquiry and

report should be made by a Royal Commission; in the 1922

Act, the PSB was also given the same power. Secondly, the

justification for making such a report was in the 1918 version " ... that the continuance of any person in the Public Service or employ is ·

detrimental to the public safety or the defence of the Commonwealth ... " In the 1922 Act, the basis of the Royal Commissioner's report was extended to: "the opinion that the service of any person in the Public Service or employ should not be continued ... " Consideration of "public safety or the defence of the

Commonwealth" became the responsibility of the PSB.

Thirdly, the 1918 Act provided for officers affected

by such a report to appeal to a board. The 1922 Act

made no such provision. When the Bill was being

debated in the House of Representatives, " ... Concern was expressed that no provisions for appeal had been included, and the Attorney-General (Mr Groom) gave assurances to the House 'that a man shall not be dismissed until he has had an

opportunity to make representations, and to show cause why he should be retained' (Hansard, House of Representatives, 20 December 1918, p9995) ... The Acting

Prime Minister also gave assurances that 'the Ministers responsible (for administering the Act) will undertake that the officers charged shall

2-G-16 Public Service Act 1902-1918, sSOA(l).

179.

have sufficient data to enable them to reply to the charges against them, and that they shall have the right to appeal to their Minister' (Hansard, House of Representatives, 20 December 1918,p9995)

The Government declined tb have a provision securing an officer's right of appeal inserted, on account of the late­ ness of the sitting. (Hansard, House of

Representatives, 20 December 1918,p9995)". [2-G-17]

29. According to the PSB, [2-G-18] s94(2) (inquiry by

the PSB) has never been invoked; but s94(1) (inquiry by a

Royal Commission) has been invoked once: in 1918. A Royal

Commission under Mr Barnet was appointed on 1 May 1918 to

inquire into:

" ... the origin of birth and parentage of

all persons now in the Commonwealth Public Service or employ who are or may be reported or believed to be of enemy origin or descent, and in any matters

incidental thereto; and to make recommendations as to their continuance or otherwise in the Commonwealth Govern­ ment Service or employ ... " [ 2-G-19]

The events following Mr Barnet's appointment are related in a

reply given in the Senate by Senator Millen, the Minister

representing the Prime Minister. He said:

2-G-17 2-G-18 2-G-19

"A number of reports have been received from the Royal Commissioner, who considered the cases of 768 officers. The Commissioner has recommended that

719 of these officers be retained in the Public Service, for the reasons that their alleged enemy origin has not been

PSB file 73/10345, Fl3. Ibid, Fl3. CPO, House of Representatives, 11 June 191 8, p5693 .

180.

proved, if proved, that it is either

too remote or is accompanied by circumstances which did not justify a recommendation of discontinuance of services. In 35 cases, the Commissioner has recommended that the officers'

services be not retained, and I4 cases have not been completed for various reasons, such as traffic restrictions, and delays in furnishing evidence.

In accordance with a promise which the Acting Prime Minister made on 20th December I9I8, each of the officers whose dismissal has been recommended by the Commissioner,has been given an opportunity of making representations, with a knowledge of the questions and answers and the

recommendation of the Commissioner, to show why he should not be dismissed or punished.

After fully considering the Commission's recommendations and the representations of the officers concerned, it has been decided to discontinue the services of ten officers. Other cases, in which dismissal was

recommended by the Commissioner, are now under consideration. " [ 2-G- 2 0]

Apparently no officer has since been dismissed under this

provision. [2-G-21]

30. Today the provision has particular significance to

security matters. It was noticed in earlier consideration of suggestions for security appeals procedures. The suggestion

was made that the procedures of s94 might be invoked in

connection with a "security risk program". [ 2-G-22]

2-G-20 2-G- 21 2-G-22

CPO, Senate, 6 August 1919, P11240. PSB file 73/10345, Fl3. Memorandum from Director-General of ASIO, Communists in Commonwealth Employ, 11 October 1951, para 12;

(copy prov1ded by ASIO as Doc A42(A)}.

181.

31. Over the years some official attention has been

given to just what an "inquiry" would require for the provision

of s94 to take effect. For example, in an 1863 case an English

Judge noted that:

" ... although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the

common law will supply the omission of the legislature." [2-G-23]

Reliance on this point of view led to a view that an inquiry

under s94 would have to be formal, but not necessarily public.

For instance, in 1952 the then Solicitor-General expressed the

opinion that a security report could be taken by the PSB as a

reason for instituting the inquiry envisaged under s94(2). He

went on to say that the inquiry should take the form of "a

formal hearing, though not necessarily in public." Further,

" ... the Board is required to acquaint the

person concerned, in some way or other, of the substance of what is alleged against him, and to give him an opportunity of rebutting it." [2-G-24] It has been suggested that such an inquiry could not protect the sources of any information which was taken into account.

[ 2-G-25]

2-G-23

2-G-24

2-G-25

per Byles, J. in Cooper v. Wandsworth Board of Works, ( 18 6 3) 14 C B ( N S) 1 9 4 ; 14 3 E R 41 4 , 4 2 0 .

Memorandum from Professor K.H. Bailey t o Ch a irman o f PSB, 2 December 1952, PSB file F3 5 .

Note for the Canadian Ro y al Commission o n Security , The problems of a 'purge procedure', 11- 14 Octobe r 1967; (copy provided by ASIO as Doc A42(H) ) .

182.

H. REVIEW OF ANY MATTER NOT COVERED BY OTHER REGULATIONS

32. Reg 6 provides for a similarly general review:

"Except where otherwise provided in these Regulations, the application of any officer upon any matter affecting him as an officer of the Service shall be made by that officer,

through the head of his branch, to the Chief Officer. Where the matter is one which the officer desires shall be considered by the Board, the application shall be addressed to

the "Secretary, Commonwealth Public Service Board," and shall be forwarded by the Chief Officer, with any remarks considered necessary, to the Inspector for transmission

to the Board."

33. About 190 cases based on regs 6 and 33 were

dealt with in the PSB's Central Office from 1972 to 1974. Only four have been recorded as relating to

security matters.

183.

APPENDIX 2-H

OVERSEAS SECURITY REVIEW AND APPEALS SYSTEMS

A. THE UNITED KINGDOH [ 2-H-l]

In 1948 a "purge procedure" was established in

the United Kingdom to ensure the reliability, from a

security point of of those civil servants who

were employed in connection with work the nature of

which was vital to the security of the state. [2-H-2]

As part of this system a panel of three retired civil

servants was established whose advice the responsible

minister could take into account when reaching his

final decision in respect of the subject civil servant. [2-H-3]

2. This system was reviewed by a Conference of

Privy Councillors set up in 1955, [2-H-4] and by the

Radcliffe Committee in 1961. [2-H-5]

3. Under the present "purge procedure" the charge

against the civil servant is drafted by the security

service in such a way as to ensure source protection,

2-H-l 2-H-2

2-H-3 2-H-4

2-H-5

See Doc Al6, annexure H, provided by ASIO. Radcliffe Committee, Security Procedures in the Public Service, Cornmand 1681, April 1962, para 52. Doc Al6, annexure H, para 9.

Conference of Privy Councillors on Security, Statement of Findings, Command 9715, March 1956, para 16. Radcliffe Committee, op cit, chapter 5.

184.

and if accepted by the minister as establishing a prima

facie case is communicated to the civil servant. If he

denies the charge, the civil servant may make a written

submission to the minister, and if the minister still

takes an adverse view, the civil servant has a right to

have what might be called the "political" issues

considered by thr·ee Advisers, of whom two are retired

senior civil servants and one is a retired trade

unionist. The Advisers have no jurisdiction

relation to "character defects", which are dealt with departmentally, and their advice is not binding on the

responsible minister.

4. The person charged and any witnesses he may

call, are heard separately and alone by the Advisers, as is the of the security service, save

that the person charged may be accompanied by a friend who will assist him in presenting his opening

statement and will then withdraw. Any ministry

representative appears in the company of a security

service representative.

5. The minister considers the Advisers' Report,

and he will consider further representations from the

civil servant if he still takes an adverse view. If

the minister's final view is adverse, the civil servant

will, if it is possible, be transferred to a "safe"

185.

post, but if this cannot be done he will be offered

the alternative of resignation or dismissal. This

system might be properly described as incorporating a

limited and purely administrative review of the advice

on which a minister might act.

6. It was reported in the London Times on 6 June

1975 that "the Civil Service has begun a review of its

internal security procedures, giving particular attention to the 'positive vetting' of officials appointed to sensitive posts in the government's home

departments".

B. THE UNITED STATES [2-H-6]

7. There have been various systems of appeal or

review in respect of security assessments in the US and

as might be expected, the position has varied very much

according to the political climate and it is rather

complex. Inevitably the system is affected by the

provisions of the US Constitution, and particularly by

the provisions of the Fifth Amendment which proclaims

that no person "shall be compelled in any criminal case to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law"

2-H-6 See Doc Al6, annexure I, provided by ASIO.

186.

and the Sixth Amendment which states that the accused

shall enjoy the right "to be confronted with the witnesses against him".

8. Public Law 733, enacted by Congress on 26 August

1950, directed that in the case of certain departments

of state and Government agencies, the person or body

controlling that department or agency might suspend any

person employed by that department or agency when

deemed necessary in the interests of national security,

and after investigation and review of the charges might

dismiss that employee. However employees having a

"permanent or indefinite appointment" who had completed

their "probationary or trial period" were given a right to be notified of the charges made against them, to be

stated "as specifically as security considerations permit", and to have their cases heard by an authority

of the department or agency and to have them reviewed

by him. [2-H-7] The procedure laid down by the statute

did not give any express rights to cross-examine to

either party. This statutory provision was supplemented by various Executive Orders.

9. Executive Order 10450 of 27 April 1953, as

amended by subsequent Orders, extended to provisions of

2-H-7 sl.

187.

Public Law 733 to all departments and agencies, and

required each head of a department or agency to ensure

that the employment or retention of employment of any civilian officer or employee was "clearly consistent with the interests of the national security." [2-H-8]

Officers and employees in sensitive positions were to

be the subject of "a full field investigation", and

the matters to be included in such an investigation

were described. [2-H-9]

10. In 1959, the US Supreme Court considered this

type of action and procedure in Greene v. McElroy.

[2-H-10] This case did not directly affect Public Law

733 or the later Executive Orders, because Greene was

an officer of a private contracting corporation, and

the Law and Orders did not apply to him. However the

reasoning adopted by the Court was equally applicable

to the action and procedures laid down in respect of

United States officers and employees, and this reasoning

would require that "the evidence used to prove the

Government's case must be disclosed to the individual

so that he has an opportunity to show that it is

untrue", and involved complying with "the requirements

2-H-8 2-H-9 2-H-10

ss 1-2.

s3 (a) .

360 ·us 474.

188.

of confrontation and cross-examination." [2-H-11]

11. Following the decision in Greene's case, an

Executive Order numbered 10865, was issued on 23

February 1960, laying down fresh procedures for review

of security cases relating to persons engaged in

industry. This Order was significantly different from

the earlier Executive Order. It provided that "an

authorisation for access to a specific classification

category might not be finally denied or revoked by the

head of a department or his designee" unless the

subject employee had been given a written statement of

the reasons for the denial or revocation as comprehensive

and detailed as national security should permit, and a

followed which enabled him to have his case

heard and reviewed. [2-H-12] A right was given to him

to cross-examine adverse witnesses, subject to

limitations where the head of the department certified that the person supplying the information was a confidential informant who had been engaged in obtaining intelligence information for the government, and that disclosure of his identity would be substantially

harmful to the national interest, or that after due

investigation the statement appeared to be reliable and

2-H-ll 2-H-12 Ibid, p496. s3.

189.

material, that failure to receive and consider the

statement would be substantially harmful to the national

security, and that the person who furnished the

information could not appear to testify due to certain

specified reasons, including any cause "determined by

the head of the department to be good and sufficient".

In these cases the employee had to be given a summary

of the information as comprehensive and detailed as

national security permitted, and appropriate

consideration was to be accorded to thE, fact that he

did not have an opportunity to cross-examine the

person providing the information. [2-H-13] However

the order also preserved what it alleged to be the

right of a head of a department to deny or revoke

access "if the security of the nation so requires,"

subject to the provision that such authority may not be

delegated and may be exercised only when the head of a

department determined that the procedures prescribed

could not be invoked consistently with the national

security. [2-H-14]

12. Because of the problems arising from Greene's

case, many security cases are not dealt with under

Public Law 733 but are dealt with by the Civil Service

Commission under the Civil Service Act of 1883 and the

2-H-13 s4.

2-H-14 s9.

190.

Civil Service Rules. One of the disqualifications for

Federal employment is reasonable doubt of the loyalty

of the applicant to the Government of the United States.

These cases are investigated for the Civil Service

Commission by the FBI. There is a system of review

within the Commission under which the person affected

has a right of legal representation and a right, the

practical limits of which do not clearly appear, to be interrogated about the charges made against him in a

way which gives him reasonably full particulars of any

disloyalty allegations.

13. The position in the United States has been

further complicated by the enactment of the Freedom of Information Act of 1966, [2-H-15] and its amendment

in 1974. (2-H-16] Under the 1966 Act, information in

the possession of government agencies might be made

available to the parties to a security case, subject

to certain exceptions. Amongst them were matters

cJ.assified as secret, investigatory files compiled for

law enforcement purposes except to the extent available

by law to a private party, and personnel, medical and

similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

2-H-15 2-H-16 Public Law 89-487. Public Law 93-502.

191.

14. The amending Act of 1974 has made the

implementation of the Act much more effective.

Departments and agencies must, unless defined unusual

circumstances exist (in which case a limited extension

of time is allowed) notify an applicant for

information, within ten working days of the receipt of

his request, whether it is intended to comply with the

request. [2-H-17] Investigatory records which are

protected from disclosure are redefined, and include

records which "disclose the identity of a confidential

source", and in the case of a record compiled by an

agency conducting a lawful national security intelligence

investigation "confidential information furnished only by

the confidential source". [2-H-18] "Secret" records are

to be protected if they are (a) specifically authorised

under criteria established by an Executive Order to be

kept secret in the interest of national defence or

foreign policy, and (b) in fact properly classified

pursuant to such Executive Order. [ 2-H-19] Y.7here

records are withheld, the courts are authorised to

examine them in camera to determine whether they or

any part of them should be withheld under any of the

exemptions, and the onus is placed on the agency seeking

to withhold the records.

2-H-17 2-H-18 2-H-19 2-H-20

sl(c). s2 (b). s2 (a). sl (b) (2).

[2-H-20]

192.

C. CANADA

15. A Royal Commission on Security was appointed in

Canada in 1969, and its report included recommendations

concerning review procedures. [2-H-21] These procedures

involved the establishment of a Security Review Board of

three members, all nominated by the Governor in Council,

but independent of any government department or agency.

This Board was to consider, inter alia, "protests by

public servants, members of the armed forces or

industrial workers against dismissal or transfer or against any denial of promotion or apparent inhibition

of career prospects on security grounds". The review

was to be conducted on what were substantially

administrative lines , the persons giving it information

being interviewed separately, save that the person the

subject of the inquiry might be accompanied by a

friend, lawyer or trade union official if he so wished.

The Board's advice, recommendations or comments were to

be communicated to the Governor in Council and the

minister concerned, and a brief record of its decision

was to be communicated to the individual concerned.

These recommendationshave not been carried out, but a

system of review was provided for public servants

who were to be dismissed for security reasons, in the

first instance by Cabinet Decision and later by statute and regulations.

2-H-21 Abridged Report, 1969, para 299.

193.

16. Section 7(7) of the Financial Administration Act

[2- H-22] provides that the Governor in Council may, in

the interests of security, suspend any person employed

in the public service, or after an inquiry conducted in accordance with regulations of the Governor in Council by a person appointed by the Governor in Council at which

the perEon concerned has been given an opportunity of

being heard, dismiss such person.

17. The Public Service Security Inquiry Regulations

[2-H-23] make provision for a Commissioner to be

appointed to conduct such an inquiry in cases where it

is proposed to dismiss public servants on security grounds. [2-H-24]

18. The employer authority is required to to

the Commissioner "a statement of the circumstances that

resulted in the proposal to dismiss the person concerned."

[2-H-25]

19. The Commissioner is then required to examine

all relevant files and obtain all relevant information. [2-H-26]

2-H-22 2-H-23 2-H-24 2-H-25

2-H-26

RS, cll6 sl.

PC 1975-726, 27 March 1975. s3. s4. s5 (a) .

194.

20. He is also required to consult with the

employer authority and any other person (other than the

person concerned) to determine what information should

not, in the interests of security, be disclosed.

[2-H-27] The Commissioner is required to take all

necessary precautions to prevent disclosure of such

information [2-H-28] and to protect the security of the

source of such information and of "any other classified

material or information". [2-H-29]

21. The Commissioner is required to notify the

person concerned of the proposal to dismiss him,

[2-H-30] and give him

" ... a statement summarizing such of the circumstances and information available to him as will, in his

opinion, enable the person concerned to be as fully informed as possible of the nature of the case against him"

having regard to the Commissioner's duties to prevent the

disclosure of information which should not, in the

interests of security, be disclosed, and to protect the source of such information and other classified material.

[2-H-31]

2-H-27 2-H-28 2-H-29 2-H-30 2-H-31

sS (b) •

s6 (a) •

s6 (b) •

s7 (a) .

s7 (b).

195.

22. The person concerned is given the right to give

evidence and to be heard personally or by counsel, and

to summons witnesses to testify on his behalf. [2-H-32]

23. The Commissioner may require any person, other

than the person concerned, to give or produce evidence

and "may receive evidence or information considered

credible or trustworthy by him". [2-H-33]

24. The Commissioner, at_ the conclusion of the

inquiry, is required to report in writing to the Governor

in Council. Presumably his report is advisory only.

[2-H-34] No Commissioner has yet been appointed.

D. NEW ZEALAND [2-H-35]

25. The NZ Security Intelligence Service Act, 1969,

which continued NZ's Security Intelligence Service in

much the same way as the Australian Security

Intelligence Organization Act 1956 continued ASIO, contains provisions for a review of complaints by

persons ordinarily resident in NZ who complain to a

Commissioner of Security Appeals that their career or

livelihood is or has been adversely affected by an act

or omission of the NZ Security Intelligence Service.

[2-H-36]

2-H-32 2-H-33 2-H-34 2-H-35

2-H-36

s9. s8. sll. See Doc Al6, annexure L, provided by ASIO.

ss 17-21.

196.

26. The Commissioner is required to regulate his

procedure in such manner as he thinks fit having regard

to the requirements of security, [2-H-37] and in arriving

at his conclusion, to hear separately and in private such evidence, if any, as may be tendered by the

complainant and any witnesses who he may wish to

adduce, and to hear separately and in private such

evidence, if any, as may be tendered by the Director

of Security and any witnesses whom he may wish to

adduce. [2-H-38] Complainants are to be entitled to

be represented by counsel or any other person. [2-H-39]

No right to cross-examine is given to the complainant

or to the Director. [2-H-40]

27. After completing his inquiries and having regard

to the requirements of security, the Commissioner is to

forward to the complainant his findings regarding the

complainant, and to report to the minister, and together

with his report to forward to the minister all documentE.

and materials relating to the complainant, all of which

shall be placed on the appropriate file of the Security Service.

2-H-37 2-H-38 2-H-39 2- H-40 2-H-41

[ 2-H-41]

s20{2). s20{3). s20{4). Sees20{2), s21.

The minister is to take such further

{ 3) and { 7) .

197.

action as he considers appropriate and may, if he thinks

fit, direct that any file be noted appropriately. [2-H-42]

28. A number of complaints have been made to the

I

Commissioner but only four have so far proceeded to a

conclusion. [2-H-43] One case concerned the

naturalization of the complainant. The complainant was successful, and the Minister followed the advice of

the Commissioner. Two cases involved matters to which

the Act did not apply, or which were not made out. The

fourth case involved a possible application to join the

public service in the future, and the Commissioner

accepted the evidence of the Intelligence

Service that it had no record which could prejudice

such an application.

29. The complaint provisions of the Act do not

apply if it appears tc· the Commissioner that there is

another adequate remedy or right of appeal including

one under s38 of the State Services Act 1962. [2-H-44]

That section authorises the State Services Commission,

if it is of the opinion that any officer should be

transferred in the interests of national security, to

furnish the officer with a written statement of its

2-H-42 2-H-43 2-H-44

s22. Information supplied by NZSIS. sl9 (2) (a).

198.

reasons as fully as they may properly be disclosed

having regard to the interests of national security.

The officer is entitled to have a Security Review

Authority review the decision if he does not agree to

be transferred. This Authority comprises three persons

whose chairman is a Supreme Court Judge or a magistrate,

in either case presently holding office or retired. The Authority hears witnesses privately, and is not bound

by the rules of evidence. The officer may be ·

represented by counsel or other person, but no provision

is made for cross-examination. The decision of the Anthority is binding, and only if it confirms the

decision to transfer (unless the officer otherwise agrees)

may the transfer be effected. No case has been heard in

New Zealand under these provisions.

24774/ 77 - L R77/25l