Start of Assignment On 21 January 2024 the Commonwealth Parliament passed the Hydrogen Power Research Implementation Bill 2024 (Cth). The Bill received Royal Assent on 2 February 2024 and immediately came into force as the Hydrogen Power Research Implementation Act 2024 (Cth). Among other matters, the Act sought to regulate the employment of scientists in the Commonwealth Scientific and Industrial Research Organisation (CSIRO) with respect to developing hydrogen as an alternative to fossil fuels. Hydrogen Power Research Implementation Act 2024 (Cth) Section 1 Objects (1) To assist with Australia's goal of reaching emission targets of 43% below 2005 levels by 2030. (2) To ensure Australia's energy security by conducting research into hydrogen-based fuels in a secure environment. (3) To provide a fair and efficient system of furnishing clearance certificates to those people working on hydrogen research in the CSIRO.

Section 2 Hydrogen Power Research Team There shall be a Hydrogen Power Research Team staffed only by employees of the CSIRO who have been issued a clearance certificate in accordance with section 3 of this Act. Section 3 Clearance Certificates At the request of the Secretary of the CSIRO the Assistant Secretary must issue a clearance certificate to a person employed by the CSIRO for the purposes of working on hydrogen research in Australia. (1) The certificate can only be issued if the employee: (a) is a citizen of Australia; and, (b) has not been convicted of an indictable offence in any country; and, (c) has passed a character check undertaken by the Australian Security Intelligence Organisation (ASIO). (2) The Assistant Secretary must have regard to the character check and any comments by ASIO personnel reporting on that character check. Section 4 - Modified Administrative Appeals Tribunal Act to Apply The AAT Act applies in relation to: (a) the review of decisions of the Assistant Secretary of the CSIRO; and (b) the review of any extension of time refusal decisions; and (c) AAT extension applications; subject to the modifications set out in section 5.

Section 5 Appeals An employee of the CSIRO may seek internal review of a decision of the Assistant Secretary of the CSIRO in the following manner: (1) an application may be made to the Secretary to review the decision of the Assistant Secretary not later than two weeks after the receipt of the decision not to issue a clearance certificate. (2) any application received after the time limit in section (1) cannot be accepted. (3) an application to the Administrative Appeals Tribunal is not permitted unless the process of internal review has been undertaken. Section 6 Modified National Anti-Corruption Commission Act to Apply In the event that an allegation of corruption is made against any employee of the CSIRO by another employee, s 41(1)(b)-(d) of the National Anti- Corruption Commission Act 2022 (Cth) does not apply to procedures in an investigation arising out of that allegation. Section 7 Modified Freedom of Information Act to Apply For the purposes of the issue of a clearance certificate under this Act, any document pertaining to a decision made under s 3 of this Act; (a) is not an exempt document under Part IV Div 2 of the Freedom of Information Act 1982 (Cth); and, (b) is not a conditionally exempt document under Part IV Div 3 of the Freedom of Information Act 1982 (Cth). Further Facts Tshala Muidikay has resided in Australia continuously since arriving as a ten-year old child refugee from the Democratic Republic of the Congo in 1999. At the age of 18 she was granted Australian citizenship. In 2014, at the age of 25, Tshala was the youngest person ever in Australia to be granted a PhD in physics at an

Australian University. She commenced employment at the CSIRO in 2019 and is recognised in that organisation as being a leader in her field: green energy. The Secretary of the CSIRO wanted Tshala to lead the new Hydrogen Power Research Team. On 6 February 2024 the Secretary directed the Assistant Secretary to initiate a clearance check on Tshala as required by section 3 the Hydrogen Power Research Implementation Act 2024 (Cth). At the request of the Assistant Secretary, ASIO commenced an investigation into Tshala. ASIO made a request to the government of the Democratic Republic of Congo (DRC) for information on Tshala's family. Information coming out of the country was contradictory and confusing. The final report from the DRC stated that Tshala and her family had been convicted of terrorism and treason in 1994 by a military court constituted under orders of the President of the DRC for the purpose of 'cleansing the country of subversive elements'. A sentence of death had been pronounced on all family members. The report contained no other information as to the charges that were laid or the evidence that was presented. A high-ranking officer in ASIO read the report and made the following written statement: Dr Muidikay was not subject to a security check when she entered Australia in 1999 as a ten-year old child. Such a check was not required by legislation, and neither was it Government policy to conduct such checks on children below the age of fifteen. Dr Muidikay was granted Australian Citizenship in 2007. The report from the Democratic Republic of Congo (formerly known as Zaire) It cannot be accepted that a five year old child could commit acts of treason or terrorism. The report reflects the chaotic state of record keeping in the DRC, which most likely arose out of the well-known inefficiencies of the public service at that time. Those inefficiencies are not helped by the system-wide corruption that has existed in the DRC due to several regime changes in that country in the last half of the twentieth

century from 1960 on. This has been widely remarked upon in the United Nations General Assembly over many years. As there is no other evidence to link Tshala Muidikay to the commission of any crime, both in Australia and overseas, I am of the opinion that she passes the character test required under s 3(1) (a) - (c) of the Hydrogen Power Research Implementation Act 2024 (Cth). The report and recommendation were forwarded to the Assistant Secretary's Office on 29 February 2024. The Assistant Secretary read the report from the government of the DRC, then wrote an email to the Secretary of the CSIRO which stated: 'I note that Dr Muidikay was convicted of treason in her home Country of Zaire in 1992. I therefore find that, under s 3(1)(b) and (c) of the Hydrogen Power Research Implementation Act 2024 (Cth), she does not pass the character test and, as a result, a clearance certificate to work on hydrogen power research in Australia is refused.' 'I am shocked that Dr Muidikay has made her way into a position of trust in such an important organisation as the CSIRO. Not only should she be refused a clearance certificate to work on hydrogen research, she should be denied any right of appeal against my decision and dismissed from employment at the CSIRO.' After sending the email to the Secretary, she emailed her nephew who was also a scientist in the CSIRO, as follows: 'It seems as though you are in luck. Tshala Muidikay cannot be granted a clearance certificate to work on the Hydrogen Power Research Team and my decision on her exclusion is final. Besides, the information on which my decision has is based is a matter for ASIO and would be subject to secrecy provisions, I would imagine.' The Assistant Secretary inadvertently Cc'd the Secretary of the CSIRO into the email.

On 1 March 2024 Dr Muidikay received a letter from the Assistant Secretary of the CSIRO outlining the reasons that a clearance certificate for her to work on Hydrogen Power Research Team was denied. It read as follows: Dear Doctor Muidikay, On the authority of the Secretary of the CSIRO I have conducted an enquiry under s 3 of the Hydrogen Power Research Implementation Act 2024 (Cth)(the Act) as to your fitness to hold a clearance certificate for work as a member of the Hydrogen Power Research Team. You were convicted of an indictable offence in the Democratic Republic of the Congo in 1994. The result is that under s 3(1)(b) and (c) of the Act you are excluded from employment on the Hydrogen Power Research Team. My decision on this matter is final and irrevocable. As a result of your offending coming to light, I have recommended that the Secretary terminate your employment with the CSIRO. Regards, Assistant Secretary, CSIRO. Dr Muidikay is obviously distressed by the outcome. She finds it hard to believe that such a decision could be made. Several attempts by her to communicate with the Assistant Secretary via email over the two days following the decision were ignored. The Task Your task is to consider all relevant administrative law matters, in light of the material covered in weeks 1-5, that are pertinent to the decision of the Assistant Secretary.

You must take into account the following matters (note the distribution of marks as an approximate guide to time and effort): (1) The relevance of access to information pertaining to the decision of the Assistant Secretary (10 Marks); (2) Any avenues of review of the decision of the Assistant Secretary and any investigations that could be pursued with respect to the decision (other than matters relevant to corruption) (30 Marks); (3) Any issue of corruption that might be relevant (10 Marks).