1 Introduction

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1.1 Purpose

The purpose of these requirements is to:

  • assist in achieving a consistent approach to determining personnel security controls in agency facilities and the screening and evaluation of employees
  • identify good practice related to decision-making principles and procedural fairness throughout the security vetting process
  • help to establish consistent terminology for personnel security across the New Zealand government
  • help agencies to better understand the security vetting process.
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1.2 Audience

This audience for these requirements is:

  • New Zealand government security and human resource management staff, security clearance holders and security vetting candidates
  • contractors to the New Zealand government providing protective security advice and services
  • any other individual or entity responsible for the security of New Zealand government people, information or assets.
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1.3 Scope

These requirements cover:

  • the procedural fairness guidelines used in the security vetting process
  • candidates’ rights in regard to procedural fairness
  • information for candidates who are adversely affected by a security vetting recommendation.

They support the Personnel Security Protocol and the wider New Zealand Protective Security Requirements (PSR).

These requirements are part of a suite of documents that help agencies meet their personnel security management requirements.

Natural justice/procedural fairness is a fundamentally important element of any personnel security regime. 

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1.4 Compliance requirements

A control with a ‘must’ or ‘must not’ compliance requirement indicates that use of the control is mandatory. These are the baseline controls unless the control is demonstrably not relevant to the respective agency and can be clearly demonstrated to the agency head or accreditation authority.

A control with a ‘should’ or ‘should not’ requirement indicates that use of the control is considered good and recommended practice.  Valid reasons for not implementing a control could exist, including:

  1. a control is not relevant because the risk does not exist,
  2. or a process or control(s) of equal strength has been substituted.

Agencies must recognise that not using a control without due consideration may increase residual risk for the agency.  This residual risk needs to be agreed and acknowledged by the agency head.  In particular an agency should pose the following questions:

  1. Is the agency willing to accept additional risk?
  2. Have any implications for All of Government security been considered?
  3. If so, what is the justification?

A formal auditable record of this consideration and decision is required as part of the governance and assurance processes within an agency.

The PSR provides agencies with mandatory and best practice security measures.

The controls detailed above describe if and when agencies need to consider specific security measures to comply with the mandatory requirements.

Also refer to the Strategic Security Objectives, Core Policies and the Mandatory Requirements.

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2 Procedural fairness

Procedural fairness is concerned with the procedures used by a decision-maker, rather than the actual outcome reached.

It requires a fair and proper procedure be used when making a decision.

A decision-maker who follows a fair procedure is more likely to reach a fair and correct decision.

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2.1 Natural justice and procedural fairness

The term procedural fairness is thought to be preferable when referring to administrative decision-making because the term natural justice is associated with procedures used by courts of law.

However, the terms have similar meaning and are commonly used interchangeably.

For consistency, the term procedural fairness has been adopted for use in security vetting.

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2.2 Application of procedural fairness to every government decision

The rules of procedural fairness do not need to be followed in all government decision-making.

They mainly apply to decisions that negatively affect an existing interest of a person or corporation.

For instance, procedural fairness would apply to a decision to:

  • recommend against or qualify a security clearance
  • cancel a licence or benefit
  • discipline an employee
  • impose a penalty
  • publish a report that damages a person’s reputation.

Procedural fairness also applies where a person has a legitimate expectation.

Procedural fairness protects legitimate expectations as well as legal rights.

It is less likely to apply to routine administration and policy-making or to decisions that initially give a benefit.

The rules of procedural fairness require:

  • a hearing appropriate to the circumstances
  • lack of bias on the part of decision-makers
  • evidence to support a decision
  • inquiry into matters in dispute.
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2.3 The ‘hearing rule’

A critical part of procedural fairness is the ‘hearing rule’.

Fairness demands that a security vetting candidate be told the requirements to be met, to the fullest extent possible consistent with national security and assurances of referee confidentiality, and be given the chance to reply before a Vetting Officer makes a decision that could adversely affect the candidate. 

Put simply, hearing the other side of the story is critical to good decision-making.

In line with procedural fairness, the candidate has a right:

  • to an opportunity to respond to concerns or allegations in a way that is appropriate for the circumstances. This will usually be in the form of a face-to-face interview with an NZSIS Vetting Officer
  • for his or her interview statements to be received and considered before the decision is made
  • to a reasonable chance to consider their position and prepare a response. However, what is reasonable can vary according to the complexity of the issue, whether an urgent decision is essential or any other relevant matter
  • to genuine consideration of any submission. The Vetting Officer needs to be fully aware of everything written or said by the candidate and give proper and genuine consideration to his or her case.
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2.4 The ‘bias rule’

The ‘bias rule’ or ‘rule against bias’ is a principle of procedural fairness, requiring decision makers to:

  • not have an interest in the matter being decided
  • not appear to bring a biased or prejudiced mind to making the decision.

‘Bias’ does not have its ordinary negative meaning, rather it is used in the sense of a ‘predisposition towards’ or ‘a predilection’.

The bias rule is based on the notion that courts, tribunals and other decision-makers must be, and be seen to be, impartial.

Interest in the matter to be decided

The bias rule covers situations where the decision-maker has a direct or indirect interest in the matter to be decided.

The most obvious example is where he or she has a pecuniary interest in the issue.

In security vetting, personal, professional or family relationships, evidence of a closed mind or participation in another role in the decision-making process can all give rise to a reasonable perception of bias. 

Appearance of bias

A decision-maker must not appear to be biased when making a decision.

This does not require that actual bias arose in the decision-making process.

The test is whether a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question.

For example, disqualifying bias will occur where a fair minded observer might reasonably apprehend that the decision-maker has pre-judged the matter by ignoring evidence or dismissing it for insufficient reason.

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2.5 Information for candidates who may be adversely affected by a Vetting Officer’s decision

If a security vetting candidate will be adversely affected by a Vetting Officer’s decision, he or she is entitled to expect that the Vetting Officer will follow the rules of procedural fairness before reaching a conclusion.

In particular, the candidate is entitled to expect the following rules will be adhered to.

  • The candidate will be told the requirements and any negative or prejudicial information relating to the candidate to the fullest extent possible consistent with national security.
  • It is not necessary for the candidate to receive copies of all original documents or for the identity of confidential sources be revealed.
  • The candidate is given a chance to reply to the requirements and relevant information.

The type of hearing should be proportional to the nature of the decision. For instance, if the consequences of the proposed decision are highly significant, a formal interview may be warranted. In contrast, if the matter is relatively straightforward, a simple exchange of emails may be all that is needed.

In reply the candidate may, among other things, wish to:

  • deny the allegations
  • provide evidence that he or she believe disprove or refute the allegations
  • explain the allegations or present an innocent explanation
  • provide details of any special circumstances that he or she believe should be taken into account. The candidate must be given a reasonable chance to respond before the decision is made, but after all important information has been gathered. This is so that the candidate can be given all the information that he or she is entitled to and be aware of the issues being considered by the Vetting Officer.
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2.6 Procedural fairness and Vetting Officers

It is good practice for Vetting Officers to consider the requirements of procedural fairness at every stage of security vetting, including:

  • when conducting a security vetting interview
  • when making a vetting assessment
  • when preparing a report that will be escalated to a higher authority.

Procedural fairness is an essential part of security vetting and benefits both the Vetting Officer and the candidate.

The Vetting Officer must have an open mind (be free from bias) when reading or listening to what the candidate has to say.

Depending on the circumstances, procedural fairness may require the Vetting Officer to:

  • inform the candidate of the main points of any allegations or grounds for negative comment against him/her. How and when this is done depends on the circumstances.
  • provide the candidate with a reasonable opportunity to put forward his or her case.

It is important to weigh all relevant circumstances for each individual case before deciding how the candidate should be allowed to respond to the allegations or negative comment.

The ultimate decision will often need to balance a range of considerations, including the consequences of the decision. 

Vetting Officers should:

  • hear all parties involved in the matter and consider submissions
  • make reasonable inquiries or investigations before making a decision.

A decision that will negatively affect the candidate must not be based merely on suspicion, gossip or rumour. There must be factual or credible information to support all negative findings.

The best way of testing the reliability or credibility of information is to disclose it to a candidate in advance of a decision, as required by the hearing rule:

  • take into account only relevant factors
  • act fairly and without bias
  • conduct the vetting process without unnecessary delay
  • ensure a full record of the vetting process has been made.

If, in the course of a hearing, the candidate raises a new issue that questions or casts doubt on a previous concern that is central to a proper decision, it should not be ignored.

Proper examination of all credible, relevant and disputed issues is important.

There is no requirement that all the information in the Vetting Officer’s possession should be disclosed to the candidate.

In rare cases, such as a serious risk to the national interest, personal safety or to substantial expenditure of public funds, procedural fairness requirements may need to be circumvented due to overriding public interest.

If the Vetting Officer believes this exists, expert advice should be sought and the case documented.

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2.7 Complaints

If a security vetting candidate considers that he or she has been adversely affected by any act, omission, practice, policy or procedure of the NZSIS, he or she has a statutory right of complaint to the Inspector-General of Intelligence and Security.

Complaints must be made in writing and addressed to:

Inspector General of Intelligence and Security

c/- the Registrar of the High Court at Wellington

DX SX 11199

Wellington

More information is available at www.igis.govt.nz

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About

Procedural fairness is concerned with the procedures used by a decision-maker, rather than the actual outcome reached.

It requires a fair and proper procedure be used when making a decision.

A decision-maker who follows a fair procedure is more likely to reach a fair and correct decision.

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Last modified: 18 December 2014

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