Explanatory MemorandumCirculated By Authority of the Cabinet Secretary, Senator the Hon John Faulkner
Schedule 2 - amendments to the Archives Act
Item 1 - subsections 29(6) and (7)
Under the Archives Act, the National Archives is currently permitted access to all records in the open access period (that is to records that are 30 or more years old) except where a determination is made that the National Archives is not entitled to access to a record or class of records and there is also in force a conclusive certificate. A certificate can only be issued in support of national security related exemption claims under the Archives Act. The provision serves to prevent access by National Archives staff to records for which they do not have the appropriate security clearance to view and which remain sensitive.
This item preserves the existing access restriction that applies to the National Archives for highly classified records in the open access period, except that in place of a conclusive certificate, access to a record will be limited where National Archives staff do not have the appropriate security clearance.
Item 2 - section 34
Item 2 repeals section 34 which is a conclusive certificate related provision.
Item 3 - section 41
This item repeals section 41 which is a conclusive certificate related provision.
Item 4 - subsections 44(4), (5) and (6)
Item 4 repeals subsections 44(4), (5) and (6), which are provisions related to the power to issue a conclusive certificate. The effect of the repeal of these subsections is that the AAT will be able to undertake full merits review of all exemption claims by the Archives in accordance with subsection 44(1).
Item 5 - section 45
This item repeals section 45 which is a conclusive certificate related provision.
Item 6 - subsection 46(1)
Item 6 repeals subsection 46(1) which is a conclusive certificate related provision, and substitutes a new special constitution requirement for the AAT. The requirement will apply to an application to the AAT for review of a decision to refuse access to a record on grounds of an exemption under paragraph 33(1)(a) (national security, defence or international relations) or paragraph 33(1)(b) (confidential communications by a foreign government or international organisation). The effect of this proposed amendment is that only presidential members of the AAT can hear a review application relating to those exemption decisions. A presidential member means the President, Deputy President or member who is a Judge. In light of the special sensitivity of information related to exemptions under paragraphs 33(1)(a) and (b), it is intended that only these members of the AAT should preside at these hearings.
Item 7 - section 47
This item repeals section 47 which is a provision related to the power to issue a conclusive certificate.
Item 8 - section 49
This item repeals section 49 which is a conclusive certificate related provision.
Item 9 - section 50
Item 9 substitutes a revised provision that has been amended to remove a conclusive certificate related provision.
Item 10 - after section 50
This item inserts a new procedural requirement in the conduct of proceedings in the AAT involving review of a national security, defence or international relations exemption or a confidential foreign government communication exemption (paragraph 33(1)(a) or (b)). Before making a determination that a record is not exempt, the AAT will be required to request the IGIS to give evidence as to the damage that could result from its disclosure. If the AAT is satisfied that the exemption claim should be upheld on other evidence, it is intended that the AAT will not seek evidence from the IGIS.
The purpose of this proposed amendment is to assist the AAT through the provision of expert advice, which would be independent to the National Archives' evidence in support of its decision to claim an exemption. However, proposed subsection 50A(8) makes it clear that the AAT is not bound by any opinion expressed by the IGIS upon giving evidence. This measure is not intended to affect the ability of the National Archives to give evidence before the AAT on the harm that could result from the disclosure of the records. Subsection 50A(4) makes it clear that the IGIS could only be called to give evidence after the National Archives or the Commonwealth institution has given evidence or made submissions.
Proposed subsection 50A(5) requires the IGIS to give evidence if requested, unless in the IGIS's view he or she is not qualified to give such expert evidence. That could arise for example where the claim is that disclosure could cause damage to international relations of the Commonwealth in a matter that is not related to the IGIS's intelligence and security oversight functions.
Proposed subsection 50A(6) is concerned with enabling the IGIS to have access to records so that the IGIS may properly inform himself or herself with a view to giving evidence. The IGIS could give evidence by telephone or other means of communication if allowed by the AAT consistent with section 35A of the AAT Act.
Item 11 - subsection 52(1)
This item repeals subsection 52(1) and substitutes a similar provision with a new direction relating to records the subject of an exemption claim under paragraphs 33(1)(a) or (b). Like existing subsection 52(1), the intention of this provision is to direct the AAT to the necessity of avoiding disclosure of exempt material to the applicant. Under subsection 35(2) of the AAT Act, the AAT has discretionary power to make confidentiality orders including to direct that a hearing or part of a hearing be held in private, or to restrict the disclosure of evidence to a party to the proceeding. Proposed paragraph 52(1)(b) inserts a new direction where the proceedings relate to a record that is claimed to be exempt under paragraphs 33(1)(a) or (b). The intention of this provision is to give direction to the AAT that it should be particularly open to considering submissions that it should exercise its discretion to make confidentiality orders for records of this kind.
Item 12 - paragraphs 52(2)(a) and (b)
Item 12 is a renumbering provision which arises as a consequence of the proposed amendment at item 11.
Item 13 - subsection 53(1)
This item repeals subsection 53(1) and substitutes similar provision that is extended to take account of the proposed new role for the IGIS addressed at item 10.
Item 14 - subsection 53(2)
This item amends subsection 53(2) to take into account the proposed new role for the IGIS addressed at item 10.
Item 15 - subsections 53(3) and (4)
This item repeals subsections 53(3) and (4) which are conclusive certificate related provisions.
Item 16 - section 54
This item repeals section 54 which is a conclusive certificate related provision.
Item 17 - at the end of Division 4 of Part V
Item 17 inserts section 55A, which provides for the automatic stay of an AAT decision to give access to a record where the National Archives institutes an appeal in the Federal Court against that decision. Subsection 44A(1) of the AAT Act provides that the institution of an appeal does not affect the operation of the AAT decision or prevent action to implement the decision. The purpose of item 17 is to make clear that an applicant cannot seek to compel disclosure of a record where an appeal to the Federal Court has been instituted. Giving access to the record would render any appeal redundant. However, it is intended that the National Archives could still give access to the record if electing to do so. The stay would cease to have effect until the earlier of either the time when the Federal Court makes a decision on the appeal application or such other time determined by the Court. Equivalent provision is made where an appeal is transferred from the Federal Court to the Federal Magistrates Court.
Item 18 - subsection 66(2)
Section 66 requires the National Archives to maintain the Australian National Guide to Archival Material, which contains particulars of records in the open access period that have been examined in accordance with subsection 35(1). This item removes the exclusion that applies to publication in the Guide of particulars of records to which a conclusive certificate is in force. The existing exclusion that applies to publication of exempt information in the Guide is not changed by this Bill.
Item 19 - application provision - item 1
The effect of this application provision is that the limitation on access by the National Archives to a record in the open access period which is effected through subsections 29(6) and (7) is preserved where an existing conclusive certificate remains in force and has not been revoked by force of subitem 20(2).
Item 20 - application provision - items 2 to 16
Subitem 20(2) deals with the treatment of conclusive certificates that remain in force at the commencement of this Bill. Existing certificates will be revoked on and from the time the first request for access to a record covered by the certificate is made. If a certificate covers more than one record, and access is not sought to all records, it is intended that the certificate continues to have effect in relation to those records not subject to the access request.
Subitem 20(3)(b) confirms that a person can make a new request for a record covered by a conclusive certificate after the commencement of Schedule 2 notwithstanding that a prior request was refused in reliance on a certificate.
Item 21 - application provision - item 17
The proposed amendment at item 17 to introduce an automatic stay on certain AAT decisions if an appeal to the Federal Court has been instituted, applies to an AAT decision made on or after the commencement of Schedule 2.
Item 22 - application provision - item 18
The effect of this application provision is that the limitation on publication in the Australian National Guide to Archival Material of particulars of records to which a conclusive certificate applies is preserved where an existing conclusive certificate remains in force and has not been revoked by force of subitem 20(2).