Gilligan and Director-General, National Archives of Australia (Freedom of information)

This interlocutory decision concerned an application by Dr Gilligan for access to records of the Defence Force Structure Committee from 1986 and 1987, made to the National Archives of Australia. After a significant delay in processing the request, the Director-General of the National Archives ultimately determined that the requested records had been destroyed under General Disposal Authority 14. Dr Gilligan subsequently lodged an application for review with the Administrative Appeals Tribunal, and the Director-General sought to have the application dismissed on jurisdictional grounds.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to review the Director-General's decision that the records had been destroyed, particularly in light of previous authority suggesting no such review was available. The Tribunal was required to consider the scope of its jurisdiction under the Archives Act 1983, and whether the practical difficulties arising from the destruction or unavailability of records were determinative of its power to review an access decision.

The Tribunal reasoned that its jurisdiction is conferred by the Archives Act and is not limited by the practicalities of whether records can be produced. It distinguished the current situation from cases where no records are identified at all, noting that here, specific records were identified and then determined to have been destroyed. The Tribunal applied the principle that it has jurisdiction to review a decision in respect of access to a record, even if that record is no longer available. Consequently, the Tribunal found that the grounds for dismissal were not made out.

The Tribunal refused the Director-General's application for dismissal of Dr Gilligan's application for review.