Public Sector Informant: No easy ways to clear APS security hurdles

WRITTEN BY John Wilson and Kieran Pender

Long waits for security clearances are a common gripe among candidates for public service jobs.

Deciding whether or not to grant a security clearance to a particular employee has been described, by no lesser authority than the United States Supreme Court, as “a sensitive and inherently discretionary judgment call”. This truism presents a significant obstacle to any Australian public servant who finds themselves in the position of being denied a security clearance, or having an existing clearance varied or revoked. But while such decisions may be inherently discretionary, that does not make them entirely unreviewable. Reviewing an adverse security clearance assessment is the focus of this article.

In 2010, Australia’s security clearance landscape was overhauled with the establishment of the Australian Government Security Vetting Agency. Until that point, each government agency had largely managed their own vetting processes. AGSVA was established within the Department of Defence to centralise the process (with the exception of several agencies that still manage their own vetting). It serves a core function within the APS’s Protective Security Policy Framework, providing four classifications of security clearance: baseline, negative vetting 1 and 2, and positive vetting.

AGSVA’s role is a significant one – accordingly to its 2019-20 annual report, it manages almost half a million security clearances across 572 federal, state and territory agencies. It considers about 50,000 clearance applications each year. The median processing time for baseline clearances is just three weeks; for positive vetting, this balloons out to almost six months. That delay, and the barrier that security clearance requirements pose to APS employment and promotion opportunities, are a common gripe in Canberra.

Because holding a security clearance is often a core job requirement, being denied one – or having one revoked – can sound the death knell for a public servant’s employment. This is especially the case for employment in agencies that deal with national security matters. So, what is an individual in such a predicament to do?

Notwithstanding their discretionary nature, security clearance decisions remain governed by administrative law. This means that decisions must be made pursuant to principles of procedural fairness and natural justice. Clearance assessments are therefore subject to various legal rules, including the hearing rule, requiring that the individual is given an opportunity to make submissions prior to an adverse decision, and the bias rule – the decision-maker must be impartial. Failure to comply with these strictures can give rise to grounds for review.

Where review options fail, a public servant might find that their job is on the line.

APS employees have three (non-judicial) review options. Firstly, an aggrieved individual has 120 days to seek “primary” review from AGSVA, which will reconsider the initial assessment. Where the individual remains dissatisfied, they have 60 days to seek review by the Merit Protection Commissioner. The Commonwealth Ombudsman can also receive complaints in relation to AGSVA, although will typically only investigate if other review processes have been pursued and completed. Non-APS employees can also seek primary review and/or complain to the Ombudsman, albeit have no access to the MPC.

If these internal and MPC reviews do not lead to the desired outcome, there are two other avenues. AGSVA decisions are exercises of non-statutory executive power. While they are not subject to judicial review under the Administrative Decisions (Judicial Review) Act, they are amenable to what is sometimes known as “constitutional” judicial review – the review of government decisions entrenched by the constitution. Yet any such litigation would face considerable challenges (and cost). We have not located any cases of this nature in the first decade of AGSVA’s operation. In other jurisdictions, courts have been extremely hesitant to intrude into vetting decisions.

Additionally, because the material underlying a clearance revocation or denial is not fully disclosed, framing the reasons for judicial review would prove difficult – unless a clear review ground was evident on the face of the denial. Perhaps in search of a review ground, a number of individuals have sought access to security clearance records under freedom of information legislation. They have typically failed.

In HK and Department of Defence, for example, the Information Commissioner refused to overturn a rejected FoI application, noting “the potential for the Department’s security vetting assessment process to be compromised if it could not rely on the provision of information relevant to its assessment process, to be made by individuals on a confidential basis”.

The other, more straightforward, option involves Australia’s intelligence service. ASIO is authorised, under the ASIO Act, to provide security assessments to government agencies. These assessments are often relied upon by AGSVA in assessing security clearance applications. In such cases, the subject of an “adverse” or “qualified” security assessment by ASIO is permitted, by the ASIO Act, to seek review by the Administrative Appeals Tribunal. A number of such cases have been considered by the tribunal’s Security Division in recent years.

Where review options fail, a public servant might find that their job is on the line. There are several industrial cases where public servants have been terminated following the revocation of a security clearance, and claimed this was unfair dismissal. They have not succeeded. In Applicant v Department of Defence, an Australian Signals Directorate employee had his security clearance revoked. His employment was terminated, on the basis that holding a top secret positive vetting clearance was an essential qualification for the employee’s role.

The individual brought an unfair dismissal case, claiming that the revocation was inappropriate and had, in effect, been engineered to bring about dismissal because concerns about his behaviour would not have justified termination under ordinary Code of Conduct processes. Fair Work Commissioner Barbara Deegan disagreed. “It was not my role to determine whether the AGSVA decision was correct,” she noted. “I do not accept that the AGSVA process was, as suggested by the applicant, manufactured to bring about the termination of his employment or, in any way, pre-determined.”

In another case, Corey v Attorney General’s Department, the public servant had been dishonest in his security clearance interview, giving false or misleading answers in relation to an extramarital relationship and a drinking problem. The clearance was later revoked, and the employee terminated for breaching the APS Code of Conduct. In rejecting his unfair dismissal claim, Deegan offered: “I can only assume that the applicant believed that if he told the truth at the security interview the clearance would not have been granted. He may well have been correct in this belief.”

As our survey of the reviewability of security clearance assessments has demonstrated, options for review are narrow. That is not to say that public servants on the receiving end of a clearance denial or revocation have no options. But the options are hardly attractive. In these circumstances, as in most areas of life, honesty is probably the best policy.

For further information, please contact our Employment Law & Investigations team at BAL Lawyers.

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