McGrath and Director-General, National Archives of Australia

This matter concerned an appeal by Ms McGrath against a decision of the Director-General of the National Archives of Australia regarding access to certain documents. The dispute centred on whether specific records, including transcripts of in-camera evidence given to a parliamentary sub-committee concerning the Timor Sea maritime boundary, were exempt from public access under the *Archives Act 1983* (Cth). The Deputy President of the Administrative Appeals Tribunal was required to determine the application of parliamentary privilege and other exemptions to these records.

The primary legal issues before the Tribunal were whether the transcripts of oral evidence given in-camera to the Parliamentary Joint Committee on Foreign Affairs and Defence, Sub-Committee on Territorial Boundaries, were protected by parliamentary privilege, and if so, whether this privilege prevented their disclosure under the *Archives Act*. The Tribunal also considered the effect of the *Parliamentary Privileges Act 1987* (Cth) and the *Archives (Records of the Parliament) Regulations 1995* (Cth) on the status of these records, particularly when they were held within the Department of Foreign Affairs and Trade (DFAT) files rather than directly by a parliamentary body.

The Tribunal reasoned that parliamentary privilege, rooted in common law, exists for the benefit of the public and is closely connected to the historical privileges of the people. While acknowledging that parliamentary privilege generally protects in-camera evidence from disclosure, the Tribunal distinguished between records held by parliamentary bodies and those that came into the possession of government departments. The Tribunal concluded that a copy of the transcript held within DFAT's files was not a "Parliamentary record" within the scope of the *Archives (Records of the Parliament) Regulations 1995*. Consequently, it remained subject to parliamentary privilege, and its disclosure would constitute a breach of that privilege.

The Tribunal ordered that the specific folios containing the transcripts of the in-camera evidence were exempt from disclosure. This decision was based on the finding that these records, by virtue of their possession by DFAT and not being transferred under the specific regulations for parliamentary records, remained protected by parliamentary privilege.