Fernandes and Director-General, National Archives of Australia

This matter concerned an application by Fernandes against the Director-General of the National Archives of Australia. The applicant sought access to certain records held by the National Archives, which the Director-General had refused to release, citing exemptions under the *Archives Act 1983* (Cth). The case was heard by Deputy President Bernard J McCabe.

The primary legal issues before the court were twofold: first, whether the exemption claimed under section 33(1)(a) of the *Archives Act* for the records was correctly applied; and second, if the exemption was validly claimed, whether the discretion vested in the Director-General under section 44(7) of the Act should be exercised to permit the release of part of the exempt records in a form that would not disclose the exempt information.

In reaching its decision, the court considered extensive evidence, including affidavits and oral testimony from representatives of the Australian Secret Intelligence Service (ASIS), the Australian Security Intelligence Organisation (ASIO), and the Department of Foreign Affairs and Trade (DFAT). Crucially, much of this evidence was presented in confidential session due to national security concerns, and a certificate was issued by the Attorney-General restricting its disclosure. The court was satisfied, particularly based on the detailed evidence of Mr. Jack Lowe from ASIS, that the exemption under section 33(1)(a) was properly claimed for the records in question. Regarding the exercise of discretion under section 44(7), the court took a sample of the documents and concluded that releasing any non-exempt portions would serve no useful purpose, as the information would either be non-existent or trivial.

Consequently, the court decided not to exercise its discretion under section 44(7) to order the release of any part of the exempt records. The decisions under review, which affirmed the exemption claims, were therefore upheld.