Archives Act 1983

This section applies in a proceeding before the Tribunal in relation to review of a decision of the Archives in respect of access to a record that:

is claimed to be an exempt record for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b); and

relates directly or indirectly to:

the performance of the functions or duties, or the exercise of the powers, of a body mentioned in paragraph (a) of the definition of intelligence agency in subsection 3(1) of the Inspector‑General of Intelligence and Security Act 1986; or

the performance of an intelligence function (within the meaning of that Act) of a body mentioned in paragraph (b) of that definition; and

is not a record of the Inspector‑General of Intelligence and Security.

Before determining that the record is not an exempt record, the Tribunal must request the Inspector‑General of Intelligence and Security to appear personally and give evidence on:

the damage that could reasonably be expected to be caused to the security, defence or international relations of the Commonwealth if the record were made available for public access; or

whether it would be reasonable to maintain the confidentiality of information or matter to which both of the following apply by not making the record available for public access:

the information or matter was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the foreign entity) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the Commonwealth entity);

the foreign entity advises the Commonwealth entity that the information or matter is still confidential.

Before determining that part of, or a copy of part of, the record is to be made available for public access under section 38, the Tribunal must request the Inspector‑General to appear personally and give evidence on:

whether making that part, or a copy of that part, of the record available for public access could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth; or

whether it would be reasonable to maintain the confidentiality of information or matter to which both of the following apply by not making that part, or a copy of that part, of the record available for public access:

the information or matter was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the foreign entity) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the Commonwealth entity);

the foreign entity advises the Commonwealth entity that the information or matter is still confidential.

Before hearing the evidence of the Inspector‑General, the Tribunal must hear any evidence to be given or submissions to be made by or on behalf of:

the Archives; or

the Commonwealth institution of which the record is property.

The Inspector‑General must comply with a request under subsection (2) or (3) unless, in the opinion of the Inspector‑General, the Inspector‑General is not appropriately qualified to give evidence on the matters in relation to which the Inspector‑General has been requested to give evidence.

For the purposes of enabling the Inspector‑General to comply with a request under subsection (2) or (3):

the Tribunal must allow the Inspector‑General to take possession of, and make copies of or take extracts from, any record given to the Tribunal for the purposes of the proceeding; and

the Inspector‑General may require the production of the record that is claimed to be an exempt record for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b); and

the Inspector‑General may require the production of any Commonwealth record that relates to the record mentioned in paragraph (b); and

the Inspector‑General may make copies of, or take extracts, from the records mentioned in paragraphs (b) and (c); and

after such period as is reasonably necessary for the purposes of giving evidence to the Tribunal, the Inspector‑General must:

return the original of any record to the Tribunal or to the entity that produced the record; and

destroy any copies of or extracts taken from any record.

The Inspector‑General must permit a person who would be entitled to inspect a record mentioned in paragraphs (6)(a) to (d) if it were not in the possession of the Inspector‑General to inspect the record at all reasonable times as the person would be so entitled.

The Tribunal is not bound by any opinion of the Inspector‑General expressed while giving evidence under this section.

The Tribunal must allow the Inspector‑General a period within which to consider the records mentioned in paragraphs (6)(a) to (d) that is reasonable having regard to:

the nature of the evidence that the Inspector‑General has been requested to give; and

the time required by the Inspector‑General to perform the Inspector‑General’s other functions.

The fact that a person is obliged to produce a document under subsection (6) does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that document.