Express law No. 15

2 March 2005

Implications of providing misleading information in the
security clearance process

A recent decision of the Australian
Industrial Relations Commission confirms that an APS employee
who provides false
and misleading information in the security clearance process
can be dismissed for breach of the APS Code of Conduct.

v Attorney-General's Department

Australian Industrial
Relations Commission, 25 February 2005, Deegan C, PR956106

Australian Industrial Relations Commission has upheld the
termination of an employee who was dismissed for:

  • providing false and misleading information in security
    clearance interviews;
  • failing to
    advise his superiors of a sexual relationship conducted
    with an employee he was managing; and
  • engaging in excessive and inappropriate use of the
    Department's email.


Mr Corey (the employee) was an ongoing Executive
Level 1 (EL1) within the Protective Security Co-ordination
Watch Office. The employee required a 'Top Secret' security
clearance to hold that position. A clearance was granted
after an initial security clearance interview was conducted
but the employee was placed on an 'after care' program,
which required regular review of his fitness to hold a

After concerns were raised about the content
and volume of personal emails sent by the employee, a Code
of Conduct
investigation commenced, the employee was suspended and
his security clearance was reviewed.

Doubts were raised
about the accuracy of information provided by the employee
during his initial and 'after care' security
interview. The Department determined that the employee
had breached the APS Code of Conduct and his employment
was terminated.

The Hearing

The hearing explored the following issues:

  • whether the employee provided false and misleading
    information to his vetting officer at the initial security
    interview and the 'after-care' interview;
  • whether the employee breached the Department's
    policy concerning appropriate email content and volume;
  • whether the employee continued
    to supervise a subordinate employee, despite having
    established an intimate relationship
    with her, and whether the employee had actively concealed
    that relationship.

The false and misleading information
related to answers to questions from the vetting officer
about extramarital
relationships, the state of the employee's marriage,
his drinking habits and circumstances during his prior

The employee contended that he did not tell
the vetting officer of his extramarital affairs because 'he
did not consider the relationships in which he had been
outside his marriage constituted affairs'. He also
denied giving misleading answers about the state of his

In respect of his previous employment, the employee
failed to mention misconduct which led to termination
of his
employment at the Australian Federal Police, where a
16-year-old boy
in his custody was asked to get on the ground and 'oink
like a pig'. He also failed to disclose that he
was accused of falsely claiming flex credits prior to
from the Child Support Agency.


Commissioner Deegan concluded that there were
a number of valid reasons for the termination of the employee's
employment. Commissioner Deegan observed:

… the applicant committed what I consider the
worst breach of the Code of Conduct at the very commencement
of his
EL1 employment when he provided false and misleading
information as part of his security interview.

Deegan found that the applicant did not
provide information to the vetting officer that was relevant
the security vetting process even though asked direct
questions, and that many of the answers he gave were
dishonest and
misleading. She concluded:

Given the nature of the employment
and seniority of the position the Department could not
be expected to retain
in employment a person with such a blatant disregard
for the truth.

The Commission also upheld the Department's
findings that the employee had a clear conflict of interest
in continuing
to supervise an employee with whom he had formed a intimate
relationship and that excessive use of the email system
constituted an improper use of Departmental resources,
in breach of the APS Code of Conduct.


The decision is significant because of its
strong statements about the importance of employee's
being truthful in the security clearance process. There
is a high onus
of disclosure on employees to ensure answers are honest
and not misleading. The decision illustrates that serious
consequences will follow where an employee who has been
granted a clearance is found not to possess the qualities
of honesty, integrity and trustworthiness. Failure to
volunteer critical information may be regarded as seriously
as providing
positively false answers.

This decision demonstrates that
the security clearance process and the APS Code of Conduct
can operate interdependently.
The Protective Security Manual (PSM) lists integrity,
honesty and trustworthiness as key suitability indicators
for employees
who hold a security clearance while the APS Code of Conduct
specifies 'an APS employee must behave honestly
and with integrity in the course of APS employment':
section 13(1) of the Public Service Act 1999. Failure
to provide honest answers would normally justify a refusal
to grant a clearance, and would also amount to a breach
of a Code of Conduct, and provide a ground for termination:
section 29(3)(f) of the Public Service Act 1999.

if an agency becomes aware that an employee has provided
false or misleading information in a security
clearance process, the employee's security clearance
may be withdrawn in accordance with the PSM. It may then
be possible to terminate employment on the ground that 'the
employee lacks, or has lost, an essential qualification
for performing his or her duties': section: 29(3)(b)
of the Public Service Act 1999.

Text of the decision
is available at:

Damien O'Donovan appeared as counsel and Ms Virginia
Masters acted as solicitor for the Attorney-General's

For further information please contact:

Damien O'Donovan

Senior Executive Lawyer

T 02 6253 7424 F 02 6253 7384

M 0418 568 227


Virginia Masters

Senior Lawyer

T 02 6253 7470 F 02 6253 7381

Important: The material in Express law is
provided as an early, interim view for general information
only and further analysis on the matter may be prepared
by AGS. The material should not be relied upon for
the purpose of a particular matter. Please contact
AGS before any action or decision is taken on the basis
of any of the material in this message.