Gaisford, Alastair John v Fisher William Norman & Ors [1996] FCA 1052

CATCHWORDS

ADMINISTRATIVE LAW - Procedural Fairness - Government departmental decisions inter alia to suspend applicant’s security clearance and suspend from duty - sufficient interests identified to require procedural fairness prima facie - whether security concerns sufficient to suspend obligation to afford procedural fairness - content of procedural obligation - applicant summoned to Secretary’s office late Friday - legal adviser to Department present at interview - request by applicant for adjournment of hearing to seek advice refused - whether applicant in a position to immediately respond and could fairly be expected to conserve own interests - no evidence that adjournment would pose serious risk.

Birss v Secretary for Justice [1984] 1 NZLR 513

Dixon v Commonwealth (1981) 55 FLR 34

Johns v Australian Securities Commission (1993) 178 CLR 408

Kelson v Forward (1995) 60 FCR 39

Kioa v West (1985) 159 CLR 550

R v Birmingham City Council, ex parte Ferrers Ltd [1993] 1 All ER 530

R v Secretary of State for Transport, Ex parte Pegasus Holdings (London) Ltd [1988] 1 WLR 990

R v Thames Magistrates’ Court, Ex parte Polemis [1974] 1 WLR 1371

Rodney v Minister of Manpower and Immigration [1972] FC 663 (Can)

The Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39

Allars, Introduction to Australian Administrative Law, (Butterworths, Sydney, 1990)

Dussault & Borgeat, Administrative Law, (Carswell, Toronto, 2nd ed, 1990)

Joseph, Constitutional and Administrative Law in New Zealand, (Law Book Co, Sydney, 1993)

Wade and Forsyth, Administrative Law, (Clarendon Press, Oxford, 7th ed, 1994)

PUBLIC SERVICE - Suspension - suspension purportedly pursuant to legislative and/or inherent executive powers to control security - allegation that security used as a means to bypass public service disciplinary code - whether schemes mutually exclusive - whether legal authority to suspend.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth)

Public Service Act 1922 (Cth), s25

Bennett v The Commonwealth (1980) 30 ALR 423

ALASTAIR JOHN GAISFORD (Applicant) v WILLIAM NORMAN FISHER (First Respondent), CLIVE RAYMOND JONES (Second Respondent), PHILIP JAMES FLOOD (Third Respondent)

No ACTG 27 of 1996

FINN J

CANBERRA

29 NOVEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA)

)

AUSTRALIAN CAPITAL TERRITORY )

) No. ACTG 27 of 1996

DISTRICT REGISTRY )

)

GENERAL DIVISION )

BETWEEN: ALASTAIR JOHN GAISFORD

Applicant

AND: WILLIAM NORMAN FISHER

First Respondent

CLIVE RAYMOND JONES

Second Respondent

PHILIP JAMES FLOOD

Third Respondent

COURT: FINN J

PLACE: CANBERRA

DATE: 29 NOVEMBER 1996

MINUTES OF ORDERS

THE COURT:

adjourns further hearing of the application to a date to be fixed for the purpose of hearing submissions on the appropriate orders in light of these reasons.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

)

AUSTRALIAN CAPITAL TERRITORY )

) No. ACTG 27 OF 1996

DISTRICT REGISTRY )

)

GENERAL DIVISION )

BETWEEN: ALASTAIR JOHN GAISFORD

Applicant

AND: WILLIAM NORMAN FISHER

First Respondent

CLIVE RAYMOND JONES

Second Respondent

PHILIP JAMES FLOOD

Third Respondent

COURT: FINN J

PLACE: CANBERRA

DATE: 29 NOVEMBER 1996

REASONS FOR JUDGMENT

This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), and for a writ of prohibition and an injunction under s39B of the Judiciary Act 1903 (Cth). The applicant, Mr Gaisford, is an officer of the Department of Foreign Affairs and Trade (“the Department”). The three respondents, Mr Fisher, Mr Jones and Mr Flood, all hold senior offices in the Department.

The level of office held by Mr Gaisford (ASO5) in the Department was such as required him to have a security clearance authorising access to all security classifications of national security and sensitive classified information held by the Department, if he was to be able to perform his duties. On 1 March 1996 a review of his clearance was ordered and his security clearance was suspended. In consequence of this, it became necessary to suspend him from duty. He was, furthermore, directed not to enter the Department’s premises. Subsequent decisions were taken extending the suspension from duty and the direction not to enter departmental premises. One or other of the three respondents took the various decisions to which I have referred.

The application itself challenges seven alleged decisions (the respondents do not concede that all those alleged were in fact made). One of the seven, the decision to order a review of the security clearance, is no longer pressed. The parties have accepted that the two decisions of 1 March - ie to suspend the security clearance (made by Mr Fisher) and to suspend Mr Gaisford from duty (made by Mr Jones) - were at the heart of the matter. If these were invalid, the subsequent decisions could not stand. If they
were valid, the subsequent decisions were unimpeachable. I should add that, for practical purposes, it is the security clearance decision which is the one of crucial importance.

That particular decision is now challenged on three grounds (other grounds contained in the application have since been abandoned). These grounds are:

(1) that the decision to suspend the security clearance and the consequential suspension from duty were made without lawful authority in that what was done in the circumstances was the taking of disciplinary action against Mr Gaisford otherwise than under the provisions of Part III, Division 6 of the Public Service Act 1922 (Cth), those provisions having the character of a code to be followed where discipline is concerned: Bennett v The Commonwealth (1980) 30 ALR 423;

(2) that the decision to suspend the clearance was so unreasonable that no reasonable person could have made it; and

(3) that in making that decision, Mr Fisher failed to accord natural justice to Mr Gaisford.

The Decision to Suspend the Security Clearance and the Reasons Given for it

Though somewhat lengthy it is appropriate to set out in full the statement of reasons provided by Mr Fisher to Mr Gaisford two months after the suspension of his security clearance.

“STATEMENT OF REASONS CONCERNING

MR ALASTAIR GAISFORD

The Decision

1. On 1 March 1996 I, William Norman Fisher, First Assistant Secretary, Consular Programs and Security Division, Department of Foreign Affairs and Trade, being authorised by the Secretary of the Department to determine access by officers of the Department to security classified information, suspended Alastair John Gaisford, an officer of the Department, Australian Government Service No 505-78900, from access to all security classifications of national security and sensitive classified information held by the Department for the period commencing on and from 1 March 1996 and ending on the completion of a review of the said Alastair John Gaisford’s suitability for access to security classifications of national security and sensitive classified information held by the Department (or until such earlier time decided upon by me).

Findings on Material Questions of Fact

2. I held concerns that Mr Gaisford may have been responsible for unauthorised disclosures of information. I also held concerns about his suitability to handle sensitive material. I also held concerns that Mr Gaisford may have sought to damage the reputations of the Department and individual officers which, if true,
would bring into question his trustworthiness and loyalty. I also held concerns regarding Mr Gaisford’s reliability, maturity and general character on the basis of instances in North Asia Division and previously, particularly during his time in Phnom Penh, where he had apparently failed to follow directions.

3. Specifically, the matters about which I had concerns were as follows:

(a) Mr Gaisford’s possible involvement in unauthorised disclosures or leaks of information contained in the following:

· Sydney Morning Herald - 5 October 1994 - David Lague article “Send Military Aid, Australia Urged” and “The Cambodia Cable-Guerillas to Exploit Deepening Crisis”;

· The Age - 5 October 1994 - Innes Willox article “Cambodia Adrift, Cable Warns”;

· Sydney Morning Herald - 25 May 1995 - David Lague article “Spy Alert as Australian Embassies are Penetrated”;

· Sydney Morning Herald - 7 June 1995 - Mark Riley article “Pedophile Claims Not Looked Into”;

· Courier Mail - 17 June 1995 - Glenn Schloss article “Khmer Kidnapper Lied About Aussie”; and

· Sydney Morning Herald - 27 October 1995 - David Lague article “Evans Faces Flak Over Planned Trip to Burma”.

(b) Mr Gaisford’s possible involvement in the making of deliberately untrue allegations of paedophile activity by officers of the Department, which allegations were conveyed by him to Mr Ken Aldred and/or Mr Andrew Campbell and which were investigated by the AFP;

(c) Mr Gaisford’s possible misrepresentation, contained in an Email message to Melitta Tickner on 11.10.95, to the effect that he had kept the Secretary and Minister informed from time to time of information possessed by him concerning alleged paedophilia by Departmental officer(s);

(d) Mr Gaisford’s possible involvement in the making of deliberately untrue allegations of fraudulent activity against officers of the Department in the administration of the Australia-Asia Institutional Linkages program, which allegations were made to officers of the AFP;

(e) Mr Gaisford’s performance of duties in Phnom Penh, including the Eng Hong and Gretchen Peters incidents;

(f) the presence of classified material in Mr Gaisford’s unaccompanied luggage on return from Phnom Penh;

(g) Mr Gaisford’s possible misrepresentation to Departmental officers that requests for access to documents, and absences from work, were for the purpose of rendering assistance to the AFP, which assistance he allegedly indicated had been requested by the AFP (the officer to whom he allegedly made such misrepresentation was Robert Walters).

4. Immediately prior to the subject decision Mr Gaisford was employed in the Department as an ASO5 and was cleared for access to all security classifications of national security and sensitive classified information held by the Department.

5. It is of fundamental importance to the business of the Department, and Australia’s national security interests, that only officers who can be relied upon to deal appropriately with security classified information should have access to such information.

Evidence or other Material on which those concerns were based

6. The concern described in paragraph 3(a) was based on an AFP Report dated 20 February 1995; an AFP document
entitled “Briefing to Department of Foreign Affairs and Trade”; and on an oral briefing given by Detective Superintendent Sweeny to myself and other officers of the Department on 6 December 1995.

7. The concern described in paragraph 3(b) above was based on a briefing by Ms Lyndall McLean on the outcome of an AFP Report entitled “Operation Arizona”.

8. The concern described in paragraph 3(c) above was based on the text and context of Mr Gaisford’s email message to Melitta Tickner on 11 October 1995; and briefings given to me by Ms Lyndall McLean to the effect that the Secretary and the Minister denied that Mr Gaisford had informed them of information concerning alleged paedophilia by Departmental officers.

9. The concern described in paragraph 3(d) above was based on a briefing given to me by Ms McLean on the results of an AFP investigation into the allegations made by Mr Gaisford.

10. The concern described in paragraph 3(e) above was based on briefings given to me by Ms Lyndall McLean, and in particular on 1 March 1996.

11. The concerns described in paragraph 3(f) above were based on the following material:

(a) minute from Lyndall McLean to AS DSB dated 30 August 1995;

(b) notes of meeting between Tony Vincent, Alastair Gaisford and Joanna Adamson, on 28 June 1995 in Mr Vincent’s office, DFAT;

(d) minute from GC Allen to Alastair Gaisford dated 24 October 1995.

12. The concern described in paragraph 3(g) above was based on a briefing provided to me by Ms Lyndall McLean to the effect that the AFP had advised that requests by Mr Gaisford for access to documents, and absences from
work, were not (so far as the AFP was concerned) for the purpose of rendering assistance to the AFP.

13. The findings detailed in paragraphs 4 and 5 above were based on briefings from Ms Lyndall McLean; the Department’s “Security Instructions”; and my knowledge of, and experience in working for, the Department.

Reasons for the Decision

14. In the light of the volume and nature of concerns held by me regarding Mr Gaisford’s suitability to access security classifications of national security and sensitive classified information, which concerns Mr Gaisford declined to address at a meeting on 1 March 1996, the interests of Mr Gaisford’s fellow officers in the Department, I considered that the interests of the Department itself, the interests of the Australian Public Service, and the interests of Australia in ensuring the integrity of security classified information held by the Department made it appropriate that Mr Gaisford’s access to all security classifications of national security and sensitive classified information held by the Department be suspended pending completion of a review of Mr Gaisford’s security clearance.”

Ground 1: The Suspensions Lacked Lawful Authority

The applicant’s case is that when one looks to what the respondents did, to their purpose in doing it, and to the outcome produced, they were in substance taking disciplinary action against Mr Gaisford. Such being the case they were obliged to act under the disciplinary provisions of the Public Service Act, those provisions providing the only means for dealing with disciplinary matters.

The respondents, for their part, accept that if disciplinary proceedings were to be taken against Mr Gaisford they would have to be taken under the Public Service Act. Their submission, though, is that they were not taking disciplinary action. Rather, the decision to suspend the security clearance was in implementation of the particular security regime in place in the Department and was taken for reasons related to security. That security regime, while not expressed in statute or statutory instrument - it is particularised first, in the Commonwealth’s Protective Security Manual and, then, in the Department’s own Departmental Security Instructions (the “Instructions”) - is, nonetheless, grounded in all or any of (i) the executive power of the Commonwealth referred to in the Constitution, s61; (ii) the common law prerogative power of the Commonwealth, and; (iii) s25(2) of the Public Service Act.

The applicant does not challenge the legal efficacy of the Commonwealth’s security regime but rather its applicability in circumstances such as the present. I do not, in consequence, need to consider what is the precise legal basis (or bases) of that regime. In the absence of argument to the contrary, I am prepared to assume for present
purposes that the security regime in the Department can be sustained by s25(2) of the Public Service Act.

It provides:

“The Secretary of a Department shall, under the Minister, be responsible for its general working, and for all the business thereof, and shall advise the Minister in all matters relating to the Department.”

For a discussion of the then s25(2) in the context of protective security arrangements, see Report, Protective Security Review, paras 11.35 - 11.40, Parliamentary Paper 397/1979, Commonwealth.

I mean no disrespect for the ingenious argument put by Mr Erskine for the applicant in saying that it is an untenable one. Even if I were prepared to assume (a) that the concerns particularised in para 3 of Mr Fisher’s Statement of Reasons could each, properly, be said to give rise to disciplinary misconduct for the purposes of s56 of the Public Service Act, and (b) that the suspension from duty imposed on Mr Gaisford is a characteristic disciplinary action, I am unable to accept that the particular purposes served in reviewing/suspending security classifications are
the same as those served by the disciplinary regime of the Public Service Act.

It is not, in my view, helpful in this context to point to general aims and ends of government and of public administration - to protect the public, to maintain proper standards of conduct, etc - and then to assert that, as both the security clearance and disciplinary systems conduce to these aims and ends, they have an identity of purpose. Such a process of reasoning was pressed on me. It does no more than state that, whatever the governmental activity concerned, the constitutional obligation of government is to act in the public interest: cf Attorney-General for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 191.

There being no issue in this case as to the power of the Commonwealth to establish an information security regime, the matters which need to be addressed are the purposes served by, and the means used to put into effect, the personnel security processes adopted by the Department to maintain information security.

For present purposes I need only say this much. First, as the Protective Security Manual indicates at para 5.7:

“The aim of personnel security is to ensure as far as possible that people to whom classified material or other valuable resources are to be entrusted, or who will need to enter specified areas controlled for reasons of security are suitable to be granted a security clearance.”

Secondly, both the Manual and the Department’s own Instructions require (albeit in differing language) that before a clearance is granted the “Department is required to evaluate the trustworthiness, reliability, loyalty, maturity and character of the person to be cleared”: emphasis added. Thirdly, the Instructions require that all clearances are to be reviewed at intervals not exceeding five years; that a change of circumstances may require a review outside the periodic timetable and such a review must be undertaken in designated circumstances (eg change of marital status, a detrimental change in financial circumstances or a significant change in behaviour); and that, while a clearance does not as of course lapse during a review, it may be suspended pending the review’s outcome.

An essential focus, then, of the clearance regime is to ensure that officers granted clearances are adjudged to possess and retain in appropriate measure the particular qualities and attributes considered necessary in persons charged with the maintenance of security. This evaluation of officers is quite different in orientation and purpose from that undertaken when the question is whether a prescribed conduct norm demanded of public servants under the disciplinary regime of the Public Service Act has been infringed. It is unsurprising, then, that the responsibility for security clearance on the one hand, and for disciplinary action on the other, is allocated to different parts of the Department. So when Mr Fisher was considering whether Mr Gaisford’s clearance was to be suspended, it was not part of his role, he said, to consider whether disciplinary action should be taken as well or instead.

It is, of course, the case that misconduct for the purposes of the Public Service Act may, in a given instance, evidence a lacking in the qualities necessary to be granted or to retain a security clearance. And in such a case that conduct may, for example, result both in the suspension (or more) of a security clearance and in disciplinary action.

In other words, while the conduct and behavioural concerns of the security clearance process on the one hand and the disciplinary regime on the other are not co-terminous, they can overlap as a practical matter. That overlap does not mean that to that extent the security clearance process is displaced by the disciplinary regime. Rather it means that the same conduct may occasion a variety of consequences to the officer concerned because it has a variety of effects.

In the instant case, whether or not Mr Gaisford’s alleged conduct was such as to expose him to disciplinary action - and I express no opinion on this - it was properly open to the Department to take action in respect of that conduct under the security clearance process.

I should add that there are, in my view, obvious and powerful reasons relating to protecting the public interest that require in any event that, under s25(2) of the Public Service Act, a Secretary (or delegate) possess the power to take steps to protect classified information from actual or apprehended abuse by a departmental officer irrespective of whether that officer’s conduct has amounted to, or would
amount to, a failure to fulfil his or her duty for the purposes of s56 of the Public Service Act.

I reject this ground of challenge to the decisions to suspend the security clearance and to suspend Mr Gaisford from duty.

Ground 2:Unreasonableness

The parties do not disagree as to the test to be applied when a challenge is made on the ground of “Wednesbury unreasonableness”: see eg the Administrative Decisions (Judicial Review) Act 1977, s5(2)(b).

The applicant accepted that the burden of proving that the decisions of Mr Fisher and then Mr Jones were so unreasonable that no reasonable person could have made them, is a heavy one. Nonetheless it was submitted that the required unreasonableness is manifest in:

(a) giving too much weight to considerations that did not deserve them: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41;

(b) founding the decision on “mere suspicion and speculation”: cf Ruangrong v Minister for Immigration and Ethnic Affairs (1988) 14 ALD 773 at 777; and

(c) using the security system to get around the apparent inconvenience or inadequacy of the disciplinary decision: cf New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 131 ALR 559 at 578.

I would have to say at the outset that I regard this ground of challenge as being without merit. To indicate why this is so it will be necessary to enter a little further upon the information relied upon by Mr Fisher in reaching his decision to suspend the security clearance.

Before so doing there are three matters to which I should refer. First, if Mr Fisher’s decision is unimpeachable on this ground so also is Mr Jones’ decision to suspend Mr Gaisford from duty. Mr Gaisford required the clearance to perform the functions of any ASO5 position in the Department. He was offered, but refused, the option of taking ‘Special Leave’. In these circumstances the decision
to suspend him from duty (and its subsequent reaffirmation) was not perverse but was the only practicable one in the circumstances.

Secondly, Mr Fisher was at the time the senior officer authorised by the Secretary of the Department to refuse, limit or withdraw access by departmental officers to all security classifications of national security and sensitive classified information. At the time he took his decision concerning Mr Gaisford he had held this position for over thirteen months.

Thirdly, it is important to emphasise the nature of the decision, or more accurately decisions, taken by Mr Fisher. They were to initiate a review of Mr Gaisford’s security clearance and to suspend the clearance he had pending the outcome of the review. I should note in passing that Mr Gaisford was aware of the provisions of the Instructions and, it should be presumed in consequence, of the review and suspension powers of the Department: in mid to late 1995 he signed a departmental minute indicating he had twice read them in the preceding twelve months. The clearance review itself was not into the matters of concern particularised in
the Fisher Statement of Reasons as such, although Mr Fisher indicated in evidence that he would expect the reviewing officer to inquire into those matters. Rather the object of the review was to determine whether Mr Gaisford should be judged to possess the qualities and attributes specified in the Instructions to which I earlier referred and this entailed an enquiry going beyond a consideration of the particularised matters of concern. The time to be taken for the review - hence the duration of the suspension decision - was, on Mr Fisher’s evidence, envisaged to be a matter of weeks.I mention both the object of the review and the anticipated duration of the suspension as matters of which account must be taken in determining whether the suspension decision was tainted with “Wednesbury unreasonableness”.

As earlier indicated, the Statement of Reasons particularised in paragraph 3 the matters which were of specific concern to Mr Fisher. Save for the matters referred to in para 3(d) and (g) - these relate to Mr Gaisford’s December 1995 - early 1996 conduct in respect of the Australia-Asia Institutional Linkages program - all of the others particularised related to events which were months, if
not up to two years, old. The age of the matters was itself the subject of complaint.

Paragraphs 6-13 of the Statement of Reasons detail the materials/information relied upon by Mr Fisher in making his decision. It consists in the main of information provided to him on the morning of 1 March 1996 (the day of his decision) in briefings from a Ms McLean, and of some documentary material then provided to him: on the latter see paras 6, 8, 11, 13 of the Statement of Reasons.

Mr Fisher has given evidence that he did not know Mr Gaisford personally, although on several occasions in 1995 he had discussions with Ms McLean that related to concerns they both had as to Mr Gaisford’s suitability to hold a security clearance. His own concern was based upon Mr Gaisford’s suspected involvement in a number of leaks to the press of unauthorised departmental information. He was also aware from those discussions that Ms McLean was responsible for co-ordinating the Department’s input into various investigations being undertaken by the Australian Federal Police (“AFP”) into alleged activities of Mr Gaisford.

I mention these prior dealings with Ms McLean by way of background to the briefings given by her on 1 March 1996.

Ms McLean was at all relevant times the senior officer of the Department responsible for its Audit, Evaluation, Fraud Prevention and Investigation Program. She first became involved in issues relating to Mr Gaisford’s conduct when a recommendation was made in December 1994 by the then Australian Ambassador to Cambodia that Mr Gaisford be withdrawn from his posting in Phnom Penh because of perceived poor performance and concerns over his adherence to security requirements. Thereafter she became responsible for liaison with the AFP in relation (inter alia) to matters concerning Mr Gaisford. I would note that the matters referred to in paras 3(a), (b), (d) and (g) of the Statement of Reasons were the subject of AFP investigation and of report or advice to the Department and/or Ms McLean. She was involved in the actions taken by the Department against Mr Gaisford in respect of his transmission of classified material in his unaccompanied baggage in breach of security instructions: see para 3(f) of the Statement of Reasons; and she was, as a result of departmental investigations into paedophile allegations, aware of, and had discussions with the Secretary
concerning, the ‘e-mail’ message referred to in para 3(c) of the Statement of Reasons.

I refer to Ms McLean’s involvement in the above matters only for the purpose of indicating that her departmental responsibilities provided her with the capacity to provide the briefings on which Mr Fisher relied.

Turning now to those briefings, it is Ms McLean’s evidence (to quote directly from her affidavit) that, apart from providing Mr Fisher with the documentary material referred to in the Statement of Reasons:

“I provided oral information to Mr Fisher by way of elaboration on some of the concerns held by me in relation to Mr Gaisford’s suitability to hold a security clearance, as follows:

(a) in relation to my concern about Mr Gaisford’s possible involvement in the making of deliberately untrue allegations of paedophile activity by officers of the Department, which allegations were conveyed by him to Mr Ken Aldred and/or Mr Andrew Campbell and which were investigated by the AFP, I orally briefed Mr Fisher on the outcome of the relevant parts of the AFP report entitled “Operation Arizona”. ... In particular I advised Mr Fisher that the AFP had reported that in its view it was reasonable to believe that Mr Gaisford was a source of a number of unsubstantiated allegations against some of the Departmental officers listed by Mr Aldred [M.P.] I further advised Mr Fisher that the AFP had reported that Mr
Gaisford’s motivations for supplying information to Mr Aldred were viewed by the AFP with suspicion;

(b) in relation to my concerns that Mr Gaisford may have misrepresented to Melita Tickner that he had informed Mr Costello and the Minister on several occasions of information possessed by him concerning alleged paedophilia by Departmental officers, I advised Mr Fisher that both Mr Costello and the Minister denied that Mr Gaisford had informed them of information concerning alleged paedophilia by Departmental officers;

(c) in relation to my concerns that Mr Gaisford may have been involved in the making of deliberately untrue allegations of fraudulent activity against officers of the Department in the administration of the AAIL Program, being allegations made to officers of the AFP, I advised Mr Fisher that the AFP had conducted an investigation into these allegations and had found no evidence to substantiate fraudulent activity on the part of any Departmental officer and that Mr Gaisford’s motivations for raising these allegations was viewed by the AFP with suspicion;

(d) in relation to my concerns about Mr Gaisford’s performance of duties in Phnom Penh, including the Eng Hong and Gretchen Peters incidents, I informed Mr Fisher of the thrust of the findings set out in the Campbell report [a report into the matters raised by the Ambassador to Cambodia concerning Mr Gaisford];

(e) in relation to my concern that Mr Gaisford may have misrepresented to Departmental officers that requests for access to documents, and absences from work, were for the purpose of rendering assistance to, and at the request of, the AFP I informed Mr Fisher that Mr Robert Walters had advised that Mr Gaisford had told him that his, Mr Gaisford’s, requests for access to documents, and absences from work, were for the purpose of rendering assistance to, and at the request of, the AFP whereas officers of the AFP had advised that requests by Mr Gaisford for access to documents, and absences from work (save for about half an hour), were not (so far as
the AFP was concerned) for the purpose of rendering assistance to the AFP; and

(f) during the course of my discussions with Mr Fisher I also confirmed that Mr Gaisford was employed in the Department as an ASO5, and had been cleared for access to all security classifications of national security and sensitive classified information held by the Department.”

Mr Fisher confirmed in his evidence that the above was a correct account of the briefings given him.

Of the documentary evidence relied upon, I would refer to the written conclusion of the AFP in their briefing to the Department of 6 December - a briefing I should add that Mr Fisher attended. It was (inter alia) that:

“The AFP believes that Mr Gaisford is a disgruntled DFAT officer who has the motive, access and propensity to disclose information to the media. There is a reasonable suspicion that Mr Gaisford is responsible for a number of the recent unauthorised disclosures of information.”

The briefing went on to indicate that the AFP was “unable to identify any evidence which would confirm these suspicions”.

The applicant’s submission on the evidence relied upon was that (a) it was feeble, old and trivial; (b) it was based almost entirely on suspicion and speculation; (c) it
was, with the exception of the matters relating to the Linkages program, all in place by October 1995 - suggesting that in its totality it could not have been thought sufficiently serious to warrant action; and (d) subject to the exception noted, it was quite old at the time of the decision.

The respondents’ for their part emphasise the nature of, and context of, the decisions to review and to suspend clearance. It is their submission that those decisions amounted to no more than a conclusion by Mr Fisher that, on the material presented to him by Ms McLean, he had come to the view that there was a risk that Mr Gaisford might compromise security, might already have done so and that he should be suspended for the relatively short time it was anticipated it would take to review his clearance.

They further submit, given that the decision related to security and that it was only a preliminary decision, that it was both proper and appropriate at that stage for Mr Fisher to rely upon suspicions raised rather than on “hard evidence”.

Finally they submit that it was quite appropriate for Mr Fisher to rely in the way he did upon the briefings given. Ms McLean was the responsible senior officer of the Department; he had no reasonable basis for doubting the advice and information he was given; and the administrative procedure adopted was an appropriate one to be adopted by senior officers in their positions in relation to a matter such as this.

I am in broad agreement with the respondents’ submissions. I do not consider that it can properly be said that, on the material placed before Mr Fisher, and given the nature and purpose of the decisions taken, no reasonable person could have come to the conclusion that Mr Gaisford’s clearance should be reviewed and that it should be suspended in the interim.

I would add this much. Whatever might be the case with final decisions or decisions taken in other contexts - cf Ruangrong’s case, above - it was appropriate at this preliminary stage and in the context of a security clearance for Mr Fisher to rely upon suspicions raised and not positive proof.

I do not regard the nature and ‘antiquity’ of the material relied upon as being so minor or stale in character as to make it unreasonable to be relied upon for the purpose for which it was. But as I will indicate I do regard the character of the material as having some bearing on the natural justice challenge.

Finally I do not regard the alleged delay in taking these steps against Mr Gaisford as a matter evidencing their unreasonableness. In December 1995 Ms McLean requested Mr Fisher to defer consideration of Mr Gaisford’s suitability to hold a security clearance until the then current AFP investigations were completed. He acceded to this. Those investigations concluded in mid-February. He acted at the beginning of March. The latter delay may suggest that the level of risk to security interests was not of great magnitude. It does not suggest that the decision taken on 1 March was itself unreasonable. I reject this ground of challenge.

Ground 3:Denial of Natural Justice

To appreciate the significance of the contending submissions, it is necessary to go into the circumstances in
which the first and second decisions were made in a little detail.

At the briefings given Mr Fisher on the morning of 1 March, he was provided with what Ms McLean described in her affidavit as “Talking Points”: see Annexure P to Ms McLean’s affidavit. It is not unfair to say that this document, which is written in the first person and which attributes direct speech variously to Mr Fisher and Mr Jones, reads as a script for the interviewers of Mr Gaisford and is presented in a fashion which takes account of anticipated eventualities at the meeting. As will be seen, that which occurred was not one so anticipated. The Talking Points themselves had been provided by, and with the advice of, the Deputy Director of the Canberra Office of the Australian Government Solicitor. That officer, had, with Mr Fisher’s prior concurrence, been engaged by Ms McLean to provide advice on the possible course of action that might be taken against Mr Gaisford.

On the afternoon of Friday 1 March 1996 - at 4.20pm according to Mr Gaisford - he was requested to attend the office of the Acting Secretary (Mr Jones). He was admitted to the office at about 4.45pm. Mr Jones, Mr Fisher, Ms
McLean and Mr Howe (from the Australian Government Solicitor’s Office) were present.

A File Note record was prepared immediately after the interview and the events which followed it, by the four officers noted above. I will comment below on Mr Gaisford’s account of the interview. I note here that I am prepared to accept that the File Note represents a reliable account of what transpired at, and after, the interview. I would add that it reasonably faithfully follows the Talking Points until the unanticipated occurred.

The File Note’s coverage of the period of the interview is as follows:

“Mr Kim Jones introduced Mr Gaisford to the various people present. Mr Bill Fisher then said ‘I have a matter of some seriousness to impart to you and have with me Mr Tom Howe of the AGS Office, who is here as an observer, the Acting Secretary, Mr Jones and Ms Lyndall McLean. I have been authorised by the Secretary to determine officers’ rights of access to national security and sensitive classified information. I have decided to review your security clearance. Here is a package for officers to complete to enable the review to be undertaken. I want you to complete these forms, together with your five nominated referees, and return them to me by close of business 8 March 1996’.

At this point, Mr Fisher handed to Mr Gaisford a bundle of papers.

Mr Fisher proceeded as follows: ‘Pending the completion of that review I propose to determine whether, in the interim, to suspend your security clearance. I am considering this course of action on the basis that the interests of the Department, the Australian Public Service, and the Australian public may be best served by doing so. I propose to make that determination at the end of this meeting. However, before moving to determine whether I should suspend your clearance, I want to give you the opportunity to put forward anything you wish me to take into consideration in reaching a decision on this question’.

Mr Gaisford then turned to Mr Howe and said words to the effect ‘As legal counsel, am I entitled to obtain legal advice?’

Mr Howe responded ‘I can’t provide you with legal advice’.

Mr Gaisford asked ‘Well why are you here then?’

Mr Fisher responded ‘He’s here as an observer’.

Mr Gaisford said ‘There seems to be enough observers here already’.

Mr Jones advised ‘This is an internal Departmental process. We should proceed’.

Mr Fisher said ‘I am considering suspending your security clearance on an interim basis because of concerns that you may have been responsible for unauthorised disclosures of information: concerns about your suitability to handle sensitive material; concerns that you have sought to damage the reputations of the Department and individual officers which brings into question your trustworthiness and reliability; instances in North Asia Division and previously, particularly during your time in Phnom Penh, where you have failed to follow directions, bringing into question your reliability, maturity and general character. The range of matters to which I propose to have regard are as follows. Firstly, your possible involvement in unauthorised disclosures ...’.

At this point Mr Gaisford interjected and said ‘We should terminate this interview’.

Mr Jones replied ‘No, we should go ahead’.

Mr Gaisford turned to Mr Fisher and said ‘Have you made up your mind already?’

Mr Fisher replied ‘No, I haven’t made up my mind, I am telling you the matters that I propose to take into account in so doing. You will then have a chance to make a response’.

Mr Gaisford said ‘Well I think I should have legal representation’.

Mr Fisher responded ‘Why don’t you just let me tell you the points which I will be taking into account’.

At that point, Mr Gaisford stood up and left the room. He was followed by Mr Jones. As Mr Gaisford was walking away from the office Mr Jones said to Mr Gaisford ‘Alastair, I direct you to stay here until the completion of this discussion’. Mr Gaisford kept walking. Mr Jones repeated his direction on two more occasions. Mr Gaisford then departed from view.

Mr Fisher then requested advice from Mr Howe as to whether sufficient natural justice had been accorded to Mr Gaisford on the question of the possible suspension of his security clearance. Mr Howe advised that as Mr Fisher had made clear that Mr Gaisford would be given an opportunity to comment, but Mr Gaisford had declined to exercise that opportunity by leaving the room, Mr Fisher was at liberty to proceed to make his decision.

Mr Fisher then signed an Instrument suspending Mr Gaisford’s security clearance on an interim basis.”

For the sake of completeness I should refer to a sequence of events subsequent to the interview and recorded in the file note.

After leaving the meeting Mr Gaisford returned to his desk. Mr Jones and the other three officers followed him there. The File Note records that Mr Gaisford, having just hung up the telephone, observed, “I can’t get any legal advice”. It continues:

“Mr Jones then approached Mr Gaisford and said ‘In the light of the suspension of your security clearance, I have to consider your position. You can’t stay in this position because it is a security assessed position. In these circumstances, I suggest that you take Special Leave pending the review of your security clearance, until 1 April’.

Mr Gaisford responded ‘But I haven’t had a chance to express my view on the security issues’.

Mr Jones said ‘You had the opportunity but you walked out and your security clearance has now been suspended, so I have to consider your position, and I suggest you take special leave’.

Mr Gaisford replied ‘There must be other positions which don’t require a security clearance’.

Mr Jones said ‘We’ve checked, and all ASO5 positions require security clearances. In any case, even if they did not there would be the possibility of ad hoc access to classified material’.

Mr Gaisford ‘Surely there must be positions over in Language Training or in EBB’.

Mr Jones replied ‘We’ve checked, and it appears that all ASO5 positions are security assessed positions, and in these circumstances I once more suggest you consider Special Leave, otherwise I will have to consider the possibility of your suspension’.

Mr Howe turned to Mr Jones and said ‘If you are considering this option you ought first give Mr Gaisford an opportunity to be heard’.

Mr Gaisford replied ‘You said you can’t give me legal advice, so butt out’.

Mr Jones said ‘He’s advising me. I think you should consider the possibility of Special Leave’.

Mr Gaisford said ‘I decline’.

Mr Jones said ‘Well, I’ll have to consider the possibility of suspension’.

Mr Gaisford said ‘Why?’.

Mr Jones said ‘Because your security clearance is no longer valid’.

Mr Gaisford said ‘But I haven’t been heard on the question of security clearance’.

Mr Jones said ‘You had the opportunity but you walked out, and furthermore you will have your opportunity to present your case more fully in the review process. We gave you the papers upstairs but you left them on the table. Now, because your security clearance is no longer in place, I have to consider the possibility of suspending you from duty. Is there anything you wish to say about that’.

Mr Gaisford said ‘I’ve already told these blokes I’m leaving now so this can wait till Monday morning. I’ll present myself for duty on Monday morning’.

Mr Jones said ‘We can’t leave it till Monday because your security clearance has been suspended with effect from now, and leaving it till Monday doesn’t make any sense because you could come in any time at your whim’.

Mr Gaisford pointed to the Notice of Suspension of Security Clearance and said “I am whimless’.

Mr Jones said ‘I therefore have to consider the possibility of suspending you unless you are willing to take Special Leave. Do you have anything to say?’

Mr Gaisford said ‘I’ll let you know’.

Mr Jones said ‘Very well, but I have to make my decision imminently’.

Mr Gaisford said ‘Shouldn’t you wait till Mike Costello comes back’.

Mr Jones said ‘No, it has to be finalised today because of the security issue. Have you anything you want to say?’

Mr Gaisford then fiddled with the papers on his desk. Mr Gaisford then said ‘No comment’ or words to like effect.

Mr Jones at this point clearly understood that Mr Gaisford had decided not to avail himself of the opportunity to respond.

Mr Jones then said ‘In these circumstances, I’m afraid I have to suspend you’.

At this point Mr Jones handed to Mr Gaisford a Notice of Suspension from Duty.”

Against this background of events the applicant made the following submissions.

(i) Accepting that the content of natural justice is variable, the decisions of 1 March were so serious in their impact on Mr Gaisford as to demand a high degree of natural justice being accorded him. The adverse effects relied upon were those which inhered in the two suspension decisions themselves, as also in the capacity of those decisions to impact seriously on his reputation amongst other officers.

(ii)While Mr Fisher purported to give him an opportunity to respond, Mr Gaisford was given no notice of the matters to be relied upon and was given no warning that he was facing suspension from duty as well. In the circumstances it was not unreasonable for him to react angrily to what he saw as an ambush and to refuse to co-operate at the interview.

(iii) Given the timing of the interview (4.45pm on a Friday) Mr Fisher had an available and appropriate opportunity to give Mr Gaisford a reasonable chance to respond by allowing him to take the weekend to do so at no prejudice to the Department. The failure to allow him this opportunity compounded the denial of natural justice.

The respondents’ in contrast made the alternate submissions (a) that the decision to suspend Mr Gaisford’s security clearance was not one which attracted a natural justice obligation to provide an antecedent (as opposed to a subsequent) opportunity to be heard; or (b) if it did, that Mr Gaisford was offered, but failed to avail of, the opportunity so provided.

Given my own view that there has been a failure to accord natural justice to Mr Gaisford it is appropriate to consider the respondents’ submissions first.

I should preface what I have to say by noting that both Mr Fisher and Ms McLean in their evidence accepted that a suspension of Mr Gaisford’s security clearance was a serious matter for him because of its consequences to him. The interests of Mr Gaisford affected by both suspension decisions were clearly ones that the law would recognise for the purposes of natural justice - or as I would prefer to put it here, “procedural fairness”. The first and critical question, though, is whether, in the circumstances Mr Fisher was not relieved of the obligation to accord procedural fairness to Mr Gaisford before the suspension decision was taken.

There were, as I understood Mr Tracey QC’s submissions, several strands in the argument that Mr Fisher was so relieved when he made both his review and security clearance suspension decisions. These were:

(i) because security concerns were in issue and because the delay involved in giving a person notice and an opportunity to be heard on the question of suspension, might well leave open the possibility of that person taking seriously prejudicial action before a suspension was imposed, it was inappropriate to require that notice or an opportunity to be heard, be given: analogical support for this was sought in what for convenience I will call the cases of urgent action for reasons of health or safety: see R v Secretary of State for Transport, Ex parte Pegasus Holdings (London) Ltd [1988] 1 WLR 990; reliance also was placed on the related body of case law which allows for procedural fairness to be dispensed with where, to require it, would frustrate the apparent purpose of the power to be exercised or of its particular exercise in the circumstance: see R v Birmingham City Council, ex parte Ferrers Ltd [1993] 1 All ER 530 and Johns v Australian Securities Commission (1993) 178 CLR 408 at 431; and

(ii)because the Instructions admit both of review and of suspension, Mr Gaisford could have no legitimate expectation that his clearance would not be reviewed or presumably (this was not put in written submissions)
suspended: cf Furnell v Whangarei High Schools Board [1973] AC 660.

The second of these submissions can be disposed of quickly. While it is the case that the Instructions both require periodic review of clearances and allow for ad hoc review outside the periodic timetable when a change of circumstances requires this: see paras 12.6.2 and 12.6.3; and while the Instructions explicitly envisage suspension of a clearance in some circumstances (para 12.6.6), they equally state that “[a] clearance does not generally lapse or become invalid pending the outcome of a review”: para 12.6.4; although they do indicate that an officer may request a review of any decision or recommendation made with which he or she is not satisfied including the suspension of a clearance: paras 12.7.1 and 12.6.6.

Insofar as the Instructions have direct bearing on the matter, it cannot be said that in terms they preclude any obligation to accord, and any reasonable expectation to be accorded, procedural fairness in any decision to suspend a clearance in consequence of a review, let alone one that is taken as a result of a decision to review for change of circumstances. If they create an expectation at all in
relation to suspension on review it would be one favourable to procedural fairness.

Because a power is one to suspend pending inquiries, it does not for that reason effect a general exclusion or modification of the rules of procedural fairness: see generally Birss v Secretary for Justice [1984] 1 NZLR 513 at 516-517; Dixon v Commonwealth (1981) 55 FLR 34. Equally the existence of appeal and review procedures in the Instructions do not of themselves determine the issue of whether, in a given case, an obligation exists to accord procedural fairness in a decision to suspend a clearance. In consequence I do not consider that the Instructions themselves conclude the matter in Mr Fisher’s favour.

As to the first strand in the argument - ie that relying on security issues and the risk of prejudice - this is far too wide in its compass to be acceptable as advanced. The terms “security” and “security issues” have been used in these proceedings as terms of general and all-embracing import and have been advanced in much the same way as a pre-modern claim to what once was called “Crown privilege”. A like comment may be made of the way in which “security risk” has been used.

I am prepared to accept, for present purposes, that the “security concerns” raised in a given instance may be of such character that to oblige procedural fairness to be given in the decision to suspend a clearance could (a) frustrate the very purpose of the security review or suspension; (b) preclude urgent action where such was considered necessary; or (c) imperil vital national interests. It has long been recognised in common law countries that where such effects would follow from an insistence upon procedural fairness when a particular administrative decision is to be taken, then the requirement itself may be “suspended or totally set aside”: see Dussault & Borgeat, Administrative Law, vol 4, 270ff (Carswell, Toronto, 2nd ed, 1990); Joseph, Constitutional and Administrative Law in New Zealand, 722ff (Law Book Co, Sydney, 1993); Wade and Forsyth, Administrative Law, 519ff (Clarendon Press, Oxford, 7th ed, 1994); Halsbury’s Laws of Australia, vol 1, 10-1850, 10-1855; Allars, Introduction to Australian Administrative Law, para 6-36 - 6-38, (Butterworths, Sydney, 1990). I refrain from comment on when the precise circumstances of “demonstrated” unfitness envisaged by para 12.6.6 of the Instructions might reflect such a situation.

However, I am unprepared to accept that in no circumstances can an obligation to accord procedural fairness arise when decisions of the type in question are made. The nature of the concerns giving rise to the need to consider an ad hoc review, the magnitude of the risk apprehended, and the “exigencies of the moment” (cf Birss v Secretary for Justice, above, at 517; Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 at 345) may all need to be considered before it can be said that the case is one in which the obligation to give procedural fairness does not exist or is suspended.

I am prepared to accept, again for present purposes, that where issues of security are appropriately identified and attested to, a judge should ordinarily accept - though not necessarily as of course: cf the views expressed on “national security” by Gibbs CJ in A v Hayden (1984) 156 CLR 532 at 548, and on official secrecy and security classifications in The Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51ff - the opinion of the Secretary of a Department (or a suitably authorised senior officer) that a significant risk to an identified public interest would be run if any level of procedural fairness was given the person the subject of a decision to
review or to suspend. I have no such evidence here from the Department which I consider acceptable for this purpose.

I do not consider the final paragraph of Mr Fisher’s Statement of Reasons (set out earlier) as sufficient for the purpose. Neither do I consider his apparent invocation of “urgency” in his affidavit (where he indicated he “was satisfied that it was appropriate to take quick action to temporarily suspend Mr Gaisford’s security clearance”) as adequate without more to attract the urgency exception to procedural fairness to which I have referred. And if it be the case that, “if Mr Gaisford posed a security risk”, he should not continue to have access to security classified information, this view as put in para 9 of Mr Fisher’s affidavit in no way justifies excluding him from procedural fairness in relation to the decision whether there should be a suspension.

Perhaps the most telling indication that the circumstances were ones requiring some level of procedural fairness was that the Department itself arranged - and prepared Talking Points for - an interview at which an “opportunity” was to be given to Mr Gaisford to respond to
the matters of concern. The Department disavows such an interpretation of its actions: the opportunity given was a matter of dispensation, not obligation. I disagree. I would note that I regard the age of many of the “matters of concern” relied upon by Mr Fisher and the measured (ie unhurried) response of the Department in having resort to the security clearance process, as providing no little confirmation of my view.

Having come to the conclusion that procedural fairness was required, the remaining question is whether Mr Fisher adopted “fair procedures which [were] appropriate and adapted to the circumstances of the particular case”: Kioa v West (1985) 159 CLR 550 at 585 per Mason J. In my view such was not the case.

Complaint may be made of Mr Gaisford’s conduct at the interview of 1 March on the grounds of discourtesy shown and of disobedience to instructions of a superior. Complaint cannot be made of the reasonableness of the perception he had of how he was being treated and of what needed to be done if he was to be treated fairly in the circumstances.

The respondents’ case, as I understood it, was that all that was required of Mr Fisher in the circumstances was done. First, an opportunity was given to Mr Gaisford to be informed of, and to respond to the particular matters of concern which had led Mr Fisher to consider suspending his security clearance and it was Mr Gaisford who refused to avail of that opportunity. Secondly, once the failed opportunity was given (no matter for what reason it failed in its purpose) the security clearance could properly be suspended at that stage for reasons of potential risk to security posed by allowing continued access to security material.

It is, in my view, important to emphasise that the issue here is “what the duty to act fairly requires in the way of procedural fairness in the circumstances of [this] case”: Kioa v West, above, at 585 per Mason J - fairness itself being determined in the light of the interests of Mr Gaisford, and of the interests and purposes that the security clearance regime and the suspension power in question serve to advance and protect: ibid. The issue is not whether some form of opportunity was given to respond to concerns of which notice was given at the time. The cases have properly recognised that, in a given instance, the opportunity
afforded to respond may not be a real or fair or reasonable one and can itself be the occasion, not of procedural fairness, but of “procedural oppression”: cf Kelson v Forward (1995) 60 FCR 39 at 64; see also eg Rodney v Minister of Manpower and Immigration [1972] FC 663 at 669 (Can); R v Thames Magistrates’ Court, Ex parte Polemis [1974] 1 WLR 1371.

Before indicating why I have reached the conclusion that Mr Gaisford has been denied procedural fairness I should refer to his version of the interview and its aftermath. In its detail it differs in some respects significantly from that recorded in the File Note. While I regard the latter as, in all probability, providing a more accurate approximation to what occurred both at the interview and at the encounter at which Mr Gaisford was suspended from duty, Mr Gaisford’s own account does in fact corroborate the File Note’s account of the particular matters I find to be of significance in reaching the conclusion I have and to which I refer below.

There is one unrelated matter to which I should specifically refer. Mr Gaisford’s version of the interview alleges that Mr Fisher said that:

“There is a view that you are disloyal to the Department.”

Mr Fisher denies saying this. He did not deny, though, that he may have used the word “loyalty” rather than “reliability” when referring (as recorded in the File Note) to:

“... concerns that you have sought to damage the reputations of the Department and individual officers which brings into question your trustworthiness and reliability ... .”

It is clear from the Talking Points that it was proposed that Mr Fisher use the term “loyalty”. Whether or not he in fact did, it was entirely proper for Mr Gaisford to conclude from the tenor of what was being said that his loyalty was being called into question.

Turning to the issue of procedural fairness, it was the case that Mr Gaisford was, and properly perceived himself to be in a position of considerable disadvantage when Mr Fisher both confronted him with the reasons for the interview and
required an immediate response (if any response was to be made) to the matters raised against him. It was not a position in which he could fairly be expected to conserve his own interests through immediate response to whatever was raised against him.

First, not only were three very senior departmental officials present, the Department’s legal adviser was there and he clearly performed that advisory function during the events that followed - although he was somewhat disingenuously described to Mr Gaisford as being at the interview as an observer. While not suggesting that in all or most circumstances the presence of a legal adviser, howsoever described, would of itself entitle the person claiming procedural fairness to have his or her own legal representative present, Mr Howe’s presence in this instance was simply emblematic of the marked inequality in the positions of the parties - an inequality Mr Gaisford appreciated in recognising his own need for legal advice.

Secondly, the very language of Mr Fisher’s preamble to what was to be the particularisation of his concerns, was, in the gravity of the imputations it made against Mr Gaisford’s
character, apt to suggest to Mr Gaisford at the outset that serious issues were being raised against him and that he had a considerable defence to mount if an adequate response was to be made. It was not surprising that, from the outset, he saw the need for an adjournment for advice. This, in my view, was what the circumstances cried out for.

On the assumption that Mr Fisher was obliged to accord procedural fairness, the respondents have accepted that the presence of a legal adviser may well have raised the question whether an adjournment was appropriate in the circumstances. They go on to say, though, that, even if an adjournment was in fact asked for, Mr Fisher would nonetheless have been entitled to suspend the security clearance when granting the adjournment, assuming he was minded to grant it.

It is clear that if one looks at the encounter between Mr Gaisford and the departmental officials in its entirety (ie both in the Secretary’s office and at Mr Gaisford’s desk) - and it is artificial to fragment it in the way that Mr Jones did as reported in the File Note - he was requesting an adjournment for the purpose of obtaining advice in making a response on the security clearance suspension. He was denied
this. But even without a request he should have been granted it, provided an adjournment could be given in the circumstances in a way which secured the interests protected by the security regime from such risk as an adjournment itself would pose.

Mr Fisher did not consider this question at all. He did consider, presumably before the interview, whether the security review should be conducted without Mr Gaisford’s clearance being temporarily suspended. His reason for rejecting this was that:

“if Mr Gaisford posed a security risk it was not appropriate that he continue to access security classified information particularly in the light of concerns about his being a source of unauthorised leaks of sensitive Departmental information.”

Even if it be accepted that some level of risk existed if Mr Gaisford retained his clearance during the period of an adjournment and that this should be guarded against, I am, in the absence of any cogent evidence to the contrary, unable to accept that appropriate arrangements could not have been made by way of an adjournment to give Mr Gaisford a fair opportunity to respond to the concerns entertained by Mr Fisher before a suspension lasting for the duration of the
review was put into effect. The conduct of the interview late on a Friday left open the opportunity, for example, of a response on the following Monday - with or without, perhaps, the clearance being temporarily suspended over the weekend, or with or without a direction not to enter departmental premises.

Furthermore, it is appropriate in this context to have regard both to the age of the bulk of the material which founded Mr Fisher’s concerns and the ‘unhurried rush’ to institute a review once security clearance concerns had been aroused. These suggest that, with or without added safeguards, a short additional period for an adjournment to allow a response to the proposed security suspension was far from inappropriate.

The conclusion is irresistible that Mr Gaisford was denied procedural fairness. The consequence of this, as the parties accept, is that not only Mr Fisher’s decision but all of the subsequent decisions impugned cannot stand, ie the decisions (a) suspending Mr Gaisford from duty, (b) directing him not to enter departmental premises, and (c) extending decisions (a) and (b).

However, I defer making the final orders sought by the applicant. The respondents requested that I take such a course so that they could make submissions at the time of publishing of these reasons as to whether any purpose then would be served by the making of such orders.

Accordingly, I adjourn further hearing of the application for the purpose of hearing submissions on the appropriate orders to be made.

I certify that this and the preceding 49 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate

Dated:

Counsel for the applicant : C Erskine

Solicitors for the applicant: Porter Pilkinton & Bradfield

Counsel for the respondent: R Tracey QC

Solicitors for the respondent : Australian Government Solicitor

Date of hearing : 11, 12 November 1996

Date of judgment : 29 November 1996

IN THE FEDERAL COURT OF AUSTRALIA)

)

AUSTRALIAN CAPITAL TERRITORY )

) No. ACTG 27 OF 1996

DISTRICT REGISTRY )

)

GENERAL DIVISION )

BETWEEN: ALASTAIR JOHN GAISFORD

Applicant

AND: WILLIAM NORMAN FISHER

First Respondent

CLIVE RAYMOND JONES

Second Respondent

PHILIP JAMES FLOOD

Third Respondent

COURT: FINN J

PLACE: CANBERRA

DATE: 7 MARCH 1997

ADDENDUM TO REASONS FOR JUDGMENT

The following is to be read as part of my reasons in this matter. When ruling certain evidence to be inadmissible at the hearing of the matter I indicated that I would include in my reasons observations to the following effect. By oversight this was not done.

One of the grounds of Mr Gaisford’s application in this matter was that the various decisions impugned were taken in bad faith by the respondents. In interlocutory proceedings in which the applicant sought an interim injunction restraining the respondents from further implementing those decisions affidavit material was read by the applicant which made serious allegations against Mr Costello who was at the relevant time Secretary of the Department of Foreign Affairs and Trade and Mr Kevin who was Ambassador to Cambodia.

At the hearing of the application the bad faith ground was abandoned. Nonetheless Mr Tracey QC sought to read affidavits of Mr Costello and Mr Kevin responding to Mr Gaisford’s allegations. As there was no issue to which they were relevant I ruled them inadmissible. In so doing I indicated that I would acknowledge in my reasons, as I now do, that the allegation made by Mr Gaisford at the interlocutory proceedings was an untested one; that Mr Costello and Mr Kevin wished to respond to them but were unable to do so because of my ruling; and that no inferences adverse to them should be drawn because they have not been given the opportunity in these proceedings to deny the allegations in court.

I certify that this and the preceding page are a true copy of the Addendum to the Reasons for Judgment herein of the Honourable Justice Finn.

Associate

Dated: 7 March 1997

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