Fernandes and Director-General, National Archives of Australia

This matter concerned an application for access to Commonwealth records by Dr Fernandes, who sought documents relating to political developments in Portuguese Timor between 1974 and 1977, and Indonesian views on Portuguese Timor between 1974 and 1980. The Director-General of the National Archives of Australia had refused access to certain records, asserting they were exempt under section 33 of the Archives Act 1983 (Cth) as their disclosure could reasonably be expected to cause damage to the security, defence, or international relations of the Commonwealth. The Administrative Appeals Tribunal (AAT) was required to conduct a merits review of this decision.

The primary legal issue before the Tribunal was whether the specific records sought by Dr Fernandes were exempt from disclosure under section 33(1)(a) of the Archives Act. This involved determining whether the disclosure of the information contained within those records could reasonably be expected to cause damage to the Commonwealth's security, defence, or international relations. The Tribunal also had to consider the principles of statutory interpretation applicable to such provisions, including the ordinary meaning of terms like "security," "damage," and the phrase "could reasonably be expected to cause."

The Tribunal applied established principles for reviewing decisions regarding access to Commonwealth records, including the prima facie right to access once a record is within the open access period, subject to it being an exempt record. The Tribunal emphasised that its review was a conventional merits review, requiring it to make the correct decision based on the evidence before it and to exercise independent judgment. It noted that while the Inspector-General of Intelligence and Security might be requested to give evidence, their opinion was not binding. The Tribunal considered the ordinary meaning of the statutory language, acknowledging that damage did not require a certainty of occurrence but a reasonable expectation, and that the "mosaic theory" could be relevant in certain circumstances.

Ultimately, the Tribunal affirmed the decision of the Director-General to refuse access to the specified records. This conclusion was based on the evidence provided by Mr Symon, the Director-General of the Australian Secret Intelligence Service (ASIS). The Tribunal was not satisfied that it would be practicable to provide access to, or a copy of, any part of the exempt records in a form that would not disclose the information by reason of which they were considered exempt. Consequently, the reviewable decision to refuse access was upheld.